Joint Oireachtas Committee inquiry into police shooting quashed for lack of independence and cross-examination rights.

[2002] IESC 21

THE SUPREME COURT

JUDICIAL REVIEW

324,326,333 &334/01

Keane C.J

Denham J

Murphy J

Murray J.

McGuinness J.

Hardiman J.

Geoghegan J.

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, SINEAD CONNIFFE and FRANK REYNOLDS

Applicant/Respondents

and

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

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

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

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

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

ATTORNEY GENERAL

Respondents/Appellants

Judgment of Mr. Justice Hardiman delivered on the 11th day of April 2002

1. The tragic death of John Carthy on the 20th April, 2000 is agreed on all sides to be a matter which, in the public interest,

merits proper and formal investigation. Both the Carthy family and the Gardaí who are the applicants in this case have

expressed the preference that this should be done by means of an independent Tribunal of Inquiry with the powers set out in

the Tribunals of Inquiry (Evidence) Act, 1921 as amended, to be conducted by an independent person. Such an inquiry would

be, in the words of Hamilton C.J. in Haughey v. Moriarty [1993] CIR I at 55 “wholly independent of the political process”.

2. The Inquiry now pending, however, is not at all independent of the political process. It is an inquiry before a sub-Committee

of a joint Oireachtas Committee being conducted by seven politicians, six deputies and one senator. This Committee claims the

power to make findings of fact, including findings adverse to a person and capable of impugning his or her good name. It is

claimed that this power may extend to a finding of unlawful killing. There is no statutory or express constitutional basis

advanced for the existence of this power. It is said by the Committee to be “inherent” in the Oireachtas.

3. The first and most fundamental issue raised by this case, accordingly, is whether the sub-Committee is empowered to carry

out the sort of inquiry they propose - one which may potentially lead to a finding of unlawful killing solely on the basis of the

alleged unwritten but inherent power. The exercise of such an allegedly inherent power is without historical precedent in the

eighty years of Irish independence. It formerly existed in the United Kingdom but is said on high authority to have “disappeared”

there, to be replaced by the Tribunal of Inquiry or other forms of extra parliamentary investigation. The Garda applicants say

that there is no inherent power in the Oireachtas to hold any individual, whether a garda, a public servant or an ordinary

citizen, directly and personally accountable to elected politicians in the Oireachtas. They also say that the Oireachtas, because

of its political nature, is an unsuitable body to hold individuals accountable for specific incidents. But that is not the

fundamental point, which relates simply to whether the Oireachtas has or has not the asserted inherent power.

4. In the light of certain submissions made to the Court it is important to be clear that certain issues do not arise. The case

made by the Garda applicants, in my view, does not involve, directly or by implication, any attack upon the work of Oireachtas

Committees in general, on the Public Accounts Committee in particular, on the Private Bill procedure, on the power of the Dáil to

hold a government answerable to it or on its powers of scrutiny of the expenditure of public monies. Still less is the case “an

attack on parliamentary democracy” as Mr. Shatter saw fit to submit. It is a challenge to a novel assertion of a power to hold

individual citizens directly accountable to a parliamentary committee. This challenge may be well founded or ill-founded, but the

act of making it is an assertion of the citizen’s right of access to the Courts and in no sense an attack on parliamentary

democracy. Its content does not seek to challenge the established practices of the Oireachtas.

5. The Oireachtas Committee, of course, has a major role in aid of the legislative function which has been acknowledged since

1922. The practice of the Oireachtas to date is correctly stated in the judgment of Hamilton C.J. in Haughey v. Moriarty where

he says:-

“There are various models which may be availed of by the Oireachtas and the Executive in the form of commissions or

committees, in the latter case either within the Oireachtas or external to it for the purpose of advising them as to the

desirability of legislation on particular topics. The essential purpose, however, for which a tribunal is established under

the Act of 1921 is to ascertain the facts as to matters of urgent public importance which it is to inquire into and

report those findings to Parliament or to the relevant Minister.”

6. There is clearly a major distinction in principle between the exercise required to advise on the desirability of legislation on the

one hand and that required to establish the truth of controverted facts about a past event, and perhaps to make so grave a

finding as that of unlawful killing, on the other. Advising on the desirability of legislation requires no legal mandate: it can be

done by any person but is plainly particularly appropriate to members of the Oireachtas, who have special powers to assist them

in doing so. It relates to the future, not to the past and will not in itself affect the rights of any person in respect of past

activities. It does not require an unbiased approach: on the contrary, legislation may quite properly arise out of the strong

opinions and preconceptions of those elected to office. And it is an intrinsically political function since legislation is a political

product. Adjudication on the propriety or otherwise of past behaviour, on the other hand, is not intrinsically a political function.

As will be seen later in this judgment, where it has been attempted by political bodies the results have often been strikingly

unhappy. It is unknown in this jurisdiction up to the present time and would represent a new form of direct personal

accountability to politicians of ordinary citizens or at least such of them as are public servants.

7. The essential novelty of what is presently proposed is that the fact finding function, in a matter capable of grave

repercussions for an individual, is proposed to be carried out by a committee of politicians rather than in a manner independent

of the political process. The Garda applicants simply raise the question of whether this can be done without express authority.

8. There may be cases where it is difficult to draw a precise line of distinction between the two functions described in the

citation from Chief Justice Hamilton above. Advice on the desirability of legislation on a particular topic may of course reflect

the adviser’s view of past events or transactions. So long as this is genuinely incidental and not a mere device, this incidental

overlap certainly does not, in my view, even potentially invalidate an exercise of the first kind. But what is proposed here is not

a consideration of legislation, or possible legislation, which might incidentally involve an expression of some general view about

the Abbeylara incident. It is proposed expressly to consider the fatal shooting and it is claimed that this consideration may lead

to a finding of unlawful killing by some individual.

The proposed inquiry

9. In order to decide whether the pending inquiry is a legitimate one, it is necessary first to examine precisely what is proposed.

The salient facts have been set out in the judgment of the learned Chief Justice and of that of the Divisional Court: I gratefully

adopt these statements. Nevertheless, ascertaining exactly what is proposed is not a straightforward exercise. Firstly, as the

decision of the Divisional Court makes clear, the proposed inquiry changed considerably both in its form and in its legal nature in

the months, and particularly in the weeks, prior to its first sitting. These changes are themselves the subject of separate

challenges to their legitimacy. However, for the purpose of this first issue I intend to examine the sub-Committee’s proposed

inquiry in the form in which it was represented, by the sub-Committee itself, to the Garda applicants. Secondly, there are

aspects of the sub-Committee’s powers, such as the claimed power “to make findings of fact or conclusions” which are alleged

by the appellants to have a meaning in law different from their ostensible meaning. I shall consider whether this is so or not at

the end of this section.

Direction to attend.

10. All of the Garda applicants received letters requiring them to attend at the sub-Committee’s hearings. These letters and the

accompanying documents contained the information available to the Garda applicants at the time when they were required to

attend, and for a long time after that. While there have been certain clarifications, and arguably some deficiencies, in the

information which has later come to hand, none of it alters the fundamental nature of the inquiry notified to them.

11. The deponent who swore an affidavit on behalf of all the applicants, Detective Garda Frank McHugh, said that he received a

letter dated the 23rd April, 2001 which required him to attend “at hearings of the sub-Committee on the Abbeylara incident,

commencing with a preliminary hearing at 11am on Tuesday 24th April, 2001 in room G2, Kildare House, Kildare Street, Dublin 2

and thereafter at such times and on such days as may be required by the sub-Committee”.

12. The purpose of his attendance was stated in the letter as follows:-

“there to give evidence in relation to the sub-Committee’s consideration of the report to the Minister for Justice by the

Commissioner of The Garda Síochána relating to the Abbeylara shooting incident (hereinafter referred to as the Garda

report) referred by both Houses of the Oireachtas to the Joint Committee on Justice Equality Defence and Womens Rights

on the 25th October, 2000, and the submissions received thereon”.

13. A number of documents were enclosed with this letter. They included, vitally, 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”. There was also enclosed the “Memorandum of Procedure on the conduct of proceedings

by the sub-Committee on the Abbeylara incident under the provisions of the Committees of the Houses of the Oireachtas

(Compellability Privileges and Immunities of Witnesses) Act, 1997 as amended by the Comptroller and Auditor General and

Committees of the Houses of the Oireachtas (Special Provisions) Act, 1998 (hereinafter referred to as the ‘Compellability

Acts’)”. There was also enclosed a copy of the Garda Report into the Abbeylara incident and a copy of some twenty-one

submissions received from the public and certain organisations. Some of these were highly critical of the Gardaí.

Issues in the Inquiry

14. The sub-Committee drew up a document entitled “Statement of Issues and List of Witnesses”. It was said to be a

document of a preliminary nature and to arise out of the sub-Committee’s terms of reference. The document itself was intended

to give “parties and witnesses” an indication of the areas to be covered by the inquiry. It was stated that “Parties will also

have an opportunity to make submissions as to the issues, witnesses, and procedures”. The judgment of the learned Chief

Justice sets out the relevant portions of this Issues document. Furthermore, at the conclusion of the document the sub-

Committee listed, apparently as part of its agenda, the following matters:-

“(1) Findings of fact,

(2) Recommendations for the future,

(3) Conclusions”.

15. The manner in which the issues thus identified were interpreted by the Committee may be gleaned from a number of

questions asked by the members of the Committee on the 26th April, 2000, the first day on which evidence was taken. Three

questions by Deputy Shatter are illustrative. The first was directed through the Chairman of the Committee to the Commissioner

of An Garda Síochána:-

“The final point arising out of that is if it is the case that Mr. Carthy was either falling or stumbling after the third shot,

does the Commissioner believe that it was absolutely necessary that the fourth shot be fired? The Commissioner refers in

his own conclusions to the United Nations Conventions on Human Rights. If Mr. Carthy was falling or stumbling at that

point, I am asking you the question, I am not making a judgement, was it appropriate that a fourth fatal shot be fired?

Was it in particular absolutely necessary that (that) happen and could it have been the case that the weapon (used) by

Garda (name deleted for the purposes of the judgment) was such that there would automatically be two shots, not one?”

16. On the same day, Deputy Shatter asked Chief Superintendent Culligan, (the officer in charge of the Garda investigation into

the incident and the author of the report later adopted by the Commissioner) the following questions:-

“Deputy Shatter: So, what you concluded was that the Gardaí had no choice but t to discharge their weapons?

Chief Superintendent: Culligan: Yes, that would be my view.

Deputy Shatter: Whilst you referred to the Garda Regulations you don’t say that they had no choice but to use lethal

force? Isn’t that right?”.

17. Counsel for the Garda applicants submitted both in the High Court and in this Court that the issues identified suggested that

the inquiry would consider the question of whether the late Mr. Carthy had been unlawfully killed. A finding that the final shot

had been unnecessary because fired when the deceased was no longer a threat to any person would, in the applicant’s

submission, amount to a conclusion or finding of unlawful killing. In the High Court, this question was the subject of argument

and submission on behalf of the sub-Committee (other than Deputy Shatter), on the ninth day of the hearing, Tuesday 2nd

October, 2001. The transcript records the following discussion between the Court and counsel for the sub-Committee:-

“Mr. Justice Kelly: Do I understand you to say that having regard to the answers you gave to the President, and if it is

boiled down, it boils down to this: that this Committee can make a finding and is authorised to make a finding - I am not

saying it would or even that it might, but that it could make a finding of fact which would leave one with no other

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

Mr. Ryan: Yes,

Mr. Justice Kelly: You say it is authorised to make such a finding?

Mr. Ryan: I do my Lord. And I say that that is a justified submission on the basis first of all of In re Haughey [1971] 217

where expressly what was an issue was wrong doing on the part of the applicant, Mr. Haughey, and which in that case is

made clear is legitimate inquiry by a committee of the Oireachtas. And it is further supported by comments and

observations in a series of cases beginning Goodman v. Hamilton [1992] 2 IR 542”.

Mr. Ryan went on to support the contention with further references to authority. .

18. The reference in argument to “unlawful killing” was not an unexpected or incidental one. Apart from the fact that it was

raised in submissions by Mr. Rogers on behalf of the Garda applicants, the argument returned to the topic on day 11 of the

hearing, when Mr. Clarke S.C. was making submissions on behalf of the Committee. He was asked:-

“Can you give example of any body or any person who would be or could be authorised to make a finding of unlawful killing

because that is your case? Mr Ryan has said that this Committee is authorised if it deems appropriate to make a finding of

unlawful killing. Can you think of any body or tribunal or person or persons who are elected (who) could make such a

finding?

Mr. Clarke: I think probably not per se. There is, however, just something that might be analogous to it and hopefully it

will never arise, but for example, politicians are frequently appointed to some of the disciplinary bodies, for example the

Medical Council, but they may not sit, sorry I accept that I cannot immediately think of a body that could come to that

conclusion per se”.

19. In subsequent discussion with Mr. Shatter, who conducted the case on his own behalf, on day 14 of the hearing, the Court

mentioned in the context of debate on whether the members of the sub-Committee were impeachable for bias that “One of the

conclusions which it is had been said that this Committee can come up with is a conclusion that an unlawful killing took place

with severe repercussions for members of the Gardaí”. There was no dissent from this proposition.

20. In this Court, Counsel for the Committee expressed his clients view of their powers as follows:-

“This is an inquiry into someone’s death: should the inquirer be inhibited from saying ‘you should not have shot him?’ ”.

And “the evidence will establish how the man was shot and who shot him; the inquiry can make a finding of unlawful killing

but cannot find a person guilty of a crime”.

The phrase “unlawful killing”

21. The phrase unlawful killing has long had a specific meaning in legal usage. It describes the offence of manslaughter: in an

indictment for that offence the prosecution allege that the defendant “unlawfully killed” the deceased. A slightly broader

meaning is found in Section 4 of the Criminal Justice Act, 1964, which provides for the state of mind required before an unlawful

killing can be classed as murder: “Where a person kills another unlawfully the killing shall not be murder unless the accused

person intended to kill, or cause serious injury to, some person.”

22. It may thus be said that in its legal meaning the phrase relates to a homicide not less culpable than manslaughter.

“Findings of fact or conclusions”

23. It was clearly indicated to the Garda applicants that the Committee before which they were summoned was one that

intended to arrive at “findings of fact or conclusions.” This was communicated to them both in the “Rules and Guidelines”

document which was enclosed with their direction to attend and in the “Statements of Issues” document. Lengthy submissions

as to the meaning of this phrase were addressed to the Court by Counsel on behalf of all parties. It is essential to achieve a

proper understanding of the origin and legal significance of the phrase. It must also be recalled that these “findings” might be

adverse to a person or impugn his good name. Moreover, the decision to use this form of words was the sub-Committee’s,

presumably taken after study of the submissions referred to above.

Origin and aspects of the phrase “findings of fact or conclusions”

24. Section 13 of the Committees of the Houses of the Oireachtas (Compellability Privileges and Immunities of Witnesses) Act,

1997 provides as follows:-

“(1) The appropriate sub-Committee or, where appropriate, the appropriate sub-Committees acting jointly may make rules

and draw up and issue guidelines relating to the conduct of proceedings, and to the procedure generally, of committees.

(2) A committee shall, in so far as is reasonably practical, conduct its proceedings and perform its functions in

accordance with any rules and guidelines under sub-section (1)”.

25. By Section (1) of the Act the phrase “the appropriate sub-Committee” means the sub-Committee of the Committee on

Procedure and Privileges of either House, with a cognate meaning in relation to joint sub-Committees.

26. On the 1st July, 1999 the sub-Committees on Compellability of the Dáil and Seanad Committees on Procedure and Privileges,

meeting jointly, adopted the rules and guidelines which bear that date and which are exhibited in the affidavit of Mr. McHugh. In

the definition section, the following definition occurs:-

“ ‘Committee’ means a committee or, save where the context otherwise requires, a sub-Committee whose consideration of

a matter may give rise to findings of fact or to conclusions which could adversely affect or impugn the good name

of any person and includes a committee or sub-Committee exercising powers under the Act”. (Emphasis added)

27. It thus appears that the phrase “findings of fact or conclusions”, on which so much debate has centered is not of direct

statutory origin but arises in a document made under statutory authority to “make rules and draw up and issue guidelines

relating to the conduct of proceedings, and to procedure generally, of committees” (emphasis added). The rules which follow

the definition section just quoted provide at Rule 1 that:-

“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”.

Consequences of a finding of a fact

28. Rule 13, which deals with the situation arising where a report of a sub-Committee is referred to the Committee which

appointed it provides that such committee may accept, reject or refer back such a report. The rule continues:-

“Provided that, in accepting a report, the Committee may add to it in so far as the additions constitute recommendations

arising from facts found or opinions expressed in the report”.

29. From these citations from the document which is, apparently, the origin of the disputed phrase, it will be seen that “facts

found” are distinguished from “opinion (s) expressed”. It will also be seen that in the case of a sub-Committee such as that

before which the Garda applicants were summoned, the Committee which appointed it may make recommendations additional to

those of the sub-Committee if these arise from facts founds or opinions expressed in the report of the sub-Committee. To put

this in another way, in relation to facts found, the Committee may not add recommendations unless these arise out of the facts

as found by the sub-Committee. To this extent, it appears, the Committee is bound by the sub-Committee’s finding of fact.

30. There is another, much more significant, legal effect of the report of a parliamentary committee or sub-Committee. In the

law of defamation, the general rule applying to the defence of fair comment is that the defence will fail unless the facts on

which the comment is based are truly and correctly stated. This, however, does not apply “where comment is made on facts

stated in a privileged document e.g. a parliamentary paper”. See Gatley on Libel and Slander 8th edition paragraph 719. The

classic case on this topic is Mangena v. Wright [1909] 2 KB 958. At page 977 Phillimore J. said:-

“If by some unfortunate error a vote in Parliament recites, or a judge in giving the reasons for his judgment states, that is

which is derogatory to some person, and the charge is mistaken and ill-founded, and a newspaper reports such vote or

judgment, and proceeds in another part of its issue to comment upon the character of the person affected in terms which

would be fair if the charge were well founded, the newspaper should be entitled to the protection of fair comment”.

31. This proposition may fairly be described as a common law rule since the decision, though much debated, and sometimes

confined strictly to parliamentary and judicial utterances and publications, has never been reversed. It is of interest in the

present context for two reasons. Firstly, it is a plain instance of a legal effect, in the area of the applicants right to their good

name, of the report of a parliamentary committee or sub-Committee. Secondly, in defining the scope of the exception to the

rule that facts grounding a defamatory comment must be proved to be true, Phillimore J. equates the parliamentary to the

judicial utterance for that purpose.

32. It thus appears that if the sub-Committee is correct in claiming the power to make a finding of unlawful killing, or a finding

of fact which inevitably gave rise to the implication that the deceased had been unlawfully killed, the applicants or any one of

them considered by the Committee to have been involved in such unlawful killing could be exposed to media or other comment

on the basis that the commentator could rely on the sub-Committee’s report to establish the truth of the facts on which he

based the comment. No contradiction would be possible in order to rebut the Committee’s version of the facts for the purpose

of rebutting a defence of fair comment.

Submissions on “findings of fact or conclusions”

33. The Attorney General, the Committee and Deputy Shatter all emphasised that neither the Committee, nor its sub-

Committee, nor any body other than a court, could make “findings of fact” which had legal effect in the sense of binding other

tribunals or exposing a person who is the subject of an adverse finding to criminal penalties or civil liabilities. They did not

address the rule in Mangena v. Wright.

34. They submitted that the findings of a sub-Committee such as the present one, like those of a Tribunal of Inquiry, are legally

sterile in this sense of having no legal consequences. Accordingly, the phrase “findings of fact or conclusions” should not be

interpreted literally, or in the same way as the phrase would be interpreted in the context of a finding by a court. It should,

they said, be interpreted as meaning no more than an expression of opinion by the sub-Committee. It was clearly necessary,

they submitted, that the sub-Committee should in this sense make findings of fact if it was to perform its functions at all.

35. In making this submission they relied in particular on Goodman International v. Mr. Justice Hamilton [1992] 2 IR 542. This

case featured largely in the arguments on both sides of the present appeal, on different aspects of this first issue. The phrase

“legally sterile” became current as a result of the Goodman International decision. It originates, however, in the judgment of

Brennan J. in Victoria v. Australian Building Construction Employees and Building Labourers Federation [1982] 152 CLR 25.

36. The Attorney General, in particular, conceded that the phrase “findings of fact” was one which should not, perhaps, have

been used because of it connotations of a binding judicial finding of fact, or of an administration of justice. Properly interpreted,

he said, it meant no more than an expression of opinion. It was analogous, he said, to the expression of opinion offered by a

critic of art or music: he gives his view but does not adjudicate. Even if the Court did not share this view, it should nonetheless

refrain from granting the first declaration. It could, alternatively, excise the words “findings of fact” from the Committee’s remit

or substitute them with another form of words which would make clear what was undoubtedly the position in law: that the

result of the sub-Committee’s deliberations had the status of opinion only.

37. Mr. Diarmuid McGuinness SC, who appeared with the Attorney General and followed him, conceded that the results of the

Committee’s inquiry was clearly capable of affecting the applicants good name. He agreed that it could also affect their careers.

It was not, he said, sterile in that sense although it was “legally sterile” in the sense of being incapable of constituting a

conviction or binding finding. He accepted that the findings might have a non-legal effect especially since the applicants were

public servants in a police force under the control of the Executive, which was in turn responsible to Dáil Eireann. He submitted

that there might be a distinction to be drawn between the powers of the Committee to make findings in this sense in relation to

a public servant on the one hand and in relation to a private citizen on the other. He submitted that there was an area of

accountability arising from a person’s status as a member of the police force which might not perhaps apply in the case of a

private citizen.

38. Counsel for the Committee “essentially” adopted the Attorney General’s submissions and specifically submitted that “the

overall status of the Committee’s report is that of opinion only”. He then went on to make the remarks quoted above to the

effect that the sub-Committee could make a finding of unlawful killing but could not find a person guilty of a crime.

Conclusion on “findings of fact”.

39. The Attorney General very realistically acknowledged that this phrase has forensic connotations: it is the phrase used to

describe the binding findings of a judge or jury on the factual issues before a court. Moreover, this forensic use must have been

obvious to those who decided to employ the phrase in relation to Committees of the Oireachtas. I have no doubt that the

phrase according to its ordinary and natural meaning describes a rigorous analytical process leading to factual conclusions,

conducted by a body uniquely equipped or authorised to do so. It is the diametric opposite, in my view, of the sort of opinion

expressed about a work of art or music: matters of taste and artistic impression are known to vary from person to person, and

not to be susceptible of rigorous, objectively justifiable, demonstration. When it is recalled that the hypothetical finding of fact

in this case might involve a finding as serious as “unlawful killing”, made by a parliamentary sub-Committee acting under the

authority of both Houses, I believe that it is quite fanciful to consider that a reasonable man or woman in the street would not

regard a report so phrased as a solemn finding of demonstrated wrongdoing.

40. If in relation to one of the applicants it was found as a fact by this parliamentary group that he or she had unlawfully killed

the deceased man, I do not believe that the alleged technical status of such finding as being (contrary to its obvious and

natural meaning) merely an opinion would at all avail him or her in the eyes of the ordinary reasonable member of the

community. It would strike such persons as a quibble. Nor could this be regarded as unreasonable since, in law, the “findings”

are given the special status of being presumed to be true for the purpose of justifying any comment based on them. Nor would

it be unreasonable having regard to the Oxford English Dictionary meanings. There, the primary meaning of the word “findings” is

“the action or an instance of finding or discovering”, and the relevant special meaning is “the result of a judicial or other formal

inquiry; a verdict”.

41. The arguments of the appellants draw heavily on the proposition, undoubtedly correct, that the findings of a Tribunal of

Inquiry are said on high authority to be “legally sterile” in the sense of having no strictly legal consequences. This quality is

sufficient to prevent the results of a tribunal’s inquiries being regarded as an administration of justice within the meaning of

Article 34 of the Constitution. The Garda applicants do not submit that the “findings of fact” by the sub-Committee would be an

administration of justice. But they say, and it has not been disputed, that while such findings have no legal effect they may

have many and far reaching effects.

42. Moreover, I have to say that I find the phrase “legally sterile” extremely unattractive in any realistic human context.

Counsel for one of the appellants, on being asked whether he would repeat the phrase without the qualifying adverb said, very

naturally, that he could not do so.

43. One is therefore left with an entity described as a “finding of fact or conclusion” which, it is agreed, could in practice have

an adverse affect on an individual. But that, the appellants contend, does not take away from the central truth that “in law” it

is of no effect at all.

44. I do not find appealing a line of argument which sets up a distinction between a universally accepted state of fact in real

life and a quite contrary state of law. If this is the law then it can only be described as a legal fiction. No ordinary person, such

as one of the applicants, on receiving the letter of directions to attend could possibly interpret it in the artificial sense

suggested. And, even more significantly, no ordinary person hearing that a parliamentary committee had found as a fact that a

named person had unlawfully killed another would be expected, by anyone other than a small minority of lawyers, to reflect that

that of course was merely a matter of opinion. It is true that even the most adverse imaginable finding of fact or conclusion by

the sub-Committee will not amount to a conviction, and will not determine any persons rights and liabilities in civil law and will

not expose him to any penalty or liability. But that is not the same as saying it has “no” effect. Not merely is it conceded that it

would have effects: these effects would sound, inter alia, in the area of the affected person’s constitutional rights. When, later

in this judgment, I consider the United States cases on the House un-American Activities Committee (HUAC) it will be seen that

many persons have been economically ruined and socially outcast by virtue of decisions which are “legally sterile”.

45. I believe the foregoing demonstrates the wisdom of the judgment of this Court in re Haughey where it was held, in the

words of O’Dhálaigh C.J.:-

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

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

affect his rights.”.

46. The use of the formula “legally sterile” by all the appellants in this case derives from a submission based on an analogy with

Tribunals of Inquiry. If, they say, Tribunals of Inquiry can lawfully make findings adverse to an individual, because such findings

are legally sterile, therefore a parliamentary committee must have the same power. This, in my view, is to misunderstand the

decision in Goodman International, cited above. In that case, the activities of a Tribunal of Inquiry were challenged on the

basis that they amounted to an “administration of justice” which, by virtue of Article 34 of the Constitution, was reserved

exclusively for the Courts. This challenge failed on the basis that the report of a tribunal was devoid of legal consequences - a

binding judgment and consequential orders - which are the hallmark of an administration of justice. It was not argued by the

applicants in the present case that the proposed activities of the Committee would be an administration of justice. The quite

different point is made that the proposed activities of the Committee are simply without legal authority. There is accordingly no

analogy whatever between the two challenges: they are different in nature

Suggested alterations of the words

47. It is trite law that words are to be interpreted according to their natural and ordinary meaning unless there is a legal reason

(such as a statutory definition) for interpreting them otherwise. No such consideration applies here. Moreover, these are not

simply words: they are the words of an Oireachtas Committee making a regulation under statutory authority. If a court were to

excise some of these words and substituted others it would be usurping the role of the Committee which, under Section 13 of

the 1997 Act, is exclusive to it. Precisely the same observation applies to a suggested deletion. The words must stand or fall

according to their ordinary meaning.

Nature of the proposed inquiry: conclusion.

48. In light of the above, and for the purpose of the first issue, I regard the sub-Committee on the Abbeylara incident as one

purporting to exercise a power of inquiry into a past event, the death of Mr. Carthy, with a view to arriving at findings of fact

or conclusions. The Committee specifically envisages that these “could aversely affect or impugn the good name of (some)

person” and specifically the Garda applicants or some of them. The Committee says that the findings open to it may include a

finding of unlawful killing.

49. I regard the phrase “which could adversely affect or impugn the good name of any person” as including a disjunctive

meaning. That is to say, it applies to findings of fact or conclusions which might impugn a person’s good name or (otherwise or

additionally) adversely affect him. Indeed it was expressly conceded in the course of argument that an adverse finding could

have both effects.

50. It is not disputed by the Garda applicants that the findings of the Committee, no matter how adverse, could not bind

another tribunal or in themselves impose civil or criminal legal liability. But in light of the grave consequences which I am

satisfied a finding of responsibility in any degree for Mr. Carthy’s death would carry, I believe that the proposed inquiry can

fairly be described as an adjudicatory one. The decision of the Committee in this grave matter is more aptly described as an

adjudication than by any comparison with artistic criticism. The Committee claims the right to say to the applicants, if it thinks

fit, “You should not have shot him”. It says that the evidence before it will establish “how the man was shot and who shot

him”; having done that “the inquiry can make a finding of unlawful killing..”.

51. The enormous gravity of these findings make them different in kind, and not merely in degree, from a newspaper critic’s

review “panning” a concert or a play. It was not disputed, and was indisputable, that the consequences of the findings could be

grave for an individual, in terms of his or her career and otherwise.

52. To be brought by compulsory process before a committee claiming those powers, and to be on risk of that Parliamentary

Committee making a “finding of fact” that a particular person shot the deceased man and that such shooting was an unlawful

killing in my view can only be regarded as a form of accountability. The decision after such process of accountability is fairly

described as adjudicatory. To point out, as is in any event obvious, that the inquiry “cannot find a person guilty of a crime”

does not in any way detract from these facts.

53. My conclusion in this regard is fortified by what I am satisfied is a sound analogy with the contentions made in Re Haughey

[1971] IR 217, at 263. There, Mr. Haughey’s claims to the procedural rights he considered necessary, including a right cross-

examine, was resisted by the State on the ground that Mr. Haughey was a witness only and that a witness in civil proceedings

was not entitled to these rights. In dealing with this submission, this Court went behind the form and surface of Mr. Haughey’s

status and considered the reality. Mr. Haughey, they found, was a person against whom allegations were being made: indeed,

his conduct was the very subject matter of the Committee’s examination. Accordingly, he was more than a mere witness: the

true analogy was not that of a witness but a party. This decision is undoubtedly both just and correct. Equally, the Garda

applicants in this case are the persons whose “conduct is the very subject matter of the Committee’s examination and is to be

the subject matter of the Committee’s report”. We have already seen how grave and far reaching the terms of that report may

be. It is impossible, in my view, to have adequate regard to the applicant’s human rights without looking to the real, as opposed

to the formal, nature of their position. Indeed, the sub-Committee itself in the documents circulated refer to “parties and

witnesses”. Formally, there are no “parties” but in real terms, and in human terms, that is exactly what these applicants are. In

saying so, I do not exclude the possibility that other persons, equally, may be entitled to this description.

Is the Inquiry authorised in law?

54. Having ascertained the nature of the proposed inquiry it is possible to pose this question. The appellants contend that the

power to inquire, and specifically to enquire as the Abbeylara sub-Committee intends to do, is inherent in the Oireachtas by

reason of the nature of a parliamentary body. This, they say, is because a power of inquiry is “normally and necessarily

exercised by a legislature in a democratic State”, in the words of Hamilton C.J. in [1999] 3 IR 1 at 32. They admit that there is

no express constitutional or statutory provision allowing for the conduct of a parliamentary inquiry of this sort. They say

however that this absence of provision is unsurprising because the right is inherent and requires no constitutional or statutory

support. They argue very strongly that, once it is acknowledged that the Oireachtas may establish a Tribunal of Inquiry (or at

least play some part in its establishment) it follows that the Oireachtas can conduct an inquiry itself because nemo dat quod

non habet. They say a number of statutes, from the Oireachtas Witnesses Oaths Act, 1924 to the Comptroller and Auditor

General etc. Act, 1998 demonstrate that it is envisaged that witnesses will appear before the Oireachtas or a committee

thereof and, the appellants contend, that in turn makes no sense unless there is a power to adjudicate upon their evidence and

make decisions. The appellants also say that the Oireachtas is entrusted with specific powers of a quasi judicial nature in

relation to the impeachment of the President or of judges of the Superior Courts, so that the proposed function will not be a

unique one.

55. The respondents advanced four points, three of which were agreed by the appellants. They said that some legal authority

was required before the Houses could establish an inquiry of the sort proposed, which they described as adjudicatory. Secondly,

they said that there was no legislative authority for such inquiry, which was agreed. Thirdly, there was no express

constitutional authority which, at least in the argument before this Court, was also agreed. The point of disagreement was as

to whether there was an inherent power to hold the sort of adjudicatory inquiry in question here.

Inherency

56. Inherency means the existence of a particular quality or characteristic in an entity as part of its essential, defining, nature.

It is not something called into being: it was always there, co-existent with the entity itself.

57. This reliance on inherency has dictated that a good deal of the argument before this Court has been historical and

comparative in character. If a quality is alleged to be inherent in a parliamentary body, so that it was there from the beginning,

one might expect that proposition to be demonstrable historically. It should equally be demonstrable in fully analogous

institutions. The Appellants have gone to considerable lengths to support their case in both of these ways. This judgment

necessarily reflects the historical and comparative emphasis of the Appellants argument. An aspect of this is that the great bulk

of the historical and comparative material relied upon has been English or American in origin. No single undisputed instance of

the exercise of an inherent power of inquiry into past disputes by the Oireachtas has been offered, and only one disputed

instance in a period of eighty years. Accordingly, I now turn to discuss the English materials relied upon.

The United Kingdom precedents.

58. None of the appellants seek to argue that the Oireachtas possesses the power to constitute an inquiry of the relevant sort

simply because a power of that nature was exercised, with no statutory authority, over a number of centuries by the

Westminster Parliament. But it is contended that the apparent inherency of such a power in that Parliament, and in the

Congress of the United States, illustrates the inherency of the power in representative assemblies generally. The Gardaí say

that the United Kingdom precedent is, in terms of English Common Law, (the only law applicable), sui generis and incapable of

being a precedent or indicator of the powers of other parliaments. They say that the general power of inquiry in the

Westminster Parliament was used capriciously and oppressively, and in a nakedly political manner, and for that reason

disappeared when superceded by the Tribunals of Inquiry (Evidence) Act, 1921. The appellants counter that the 1921 Act did

not replace the inherent power of inquiry but was additional to it. It is irrelevant, they say, that the inherent power has not

actually been exercised in the United Kingdom since then.

59. Both sides relied on a number of scholarly works in connection with this aspect of the argument, but notably the

authoritative work of Professor George W. Keeton Trial by Tribunal. It would be pointless to attempt to summarise the truly

extraordinary story told in Chapters II and III of Professor Keeton’s work about the English, later the British, Parliamentary

Committee of Inquiry. I can only urge that it be read by anyone with a serious interest in the topic. It is not an edifying tale. In

Haughey v. Moriarty, at page 54 of the report Chief Justice Hamilton briefly reviewed the background to the 1921 Act. He said:

“It is clear from the Salmon report (The Royal Commission of Tribunals of Inquiry, 1966) and the helpful study of such

tribunals in England by George W. Keeton, that prior to the enactment of the Act of 1921 the only machinery available to

inquire into major political scandals was an investigation by a Select Committee of Parliament. The inherent defects in

that procedure were recognised as long ago as 1880, when the Special Commission Act, 1880 was passed in order to

enable a commission to inquire into allegations that Parnell and other leading members of the Irish Parliamentary Party had

been involved in criminal activities. They were graphically illustrated in the Marconi affair in 1912 when the Select

Committee and the House of Commons itself divided along strict party lines in considering whether prominent members of

the then liberal government had improperly profited from certain transactions, resulting from the award of contracts by

the Government to the Marconi Company.

The underlying policy of the Act of 1921, as subsequently amended, is thus not in doubt. It is to provide the machinery,

wholly independent of the political process, whereby matters of grave public concern may be investigated and the true

facts brought to light”.

60. That passage amply explains the background to the 1921 Act but does not do full justice to the extraordinary, unique

nature and perfidious historical record of the Select Committee of Inquiry. This body claimed origins going back to a time beyond

recorded history, and based in the function of the “High Court of Parliament” whose members were said to be the “general

inquisitors” of the land. But it did not actually assume the form in which it became familiar until the later 17th century. Keeton

places the first true Select Committee of Inquiry in the year 1678. A number of its features, revealed between that date and

the early eighteenth century, have been remarkably persistent.

61. First, it was from the beginning associated with the “inherent” Parliamentary power of arrest. As it happens, the great

diarist Samuel Pepys was the person into whose activities the first Select Committee inquired. He was arrested on “Speakers

warrant” and “found guilty” by a parliamentary committee of piracy, Popery and treachery. The Committee was composed of his

bitterest enemies and chaired by a man who openly coveted his office as Secretary of the Navy. Professor Keeton comments:-

“The Committee of Inquiry, therefore, appears in its first use as a tribunal of investigation after the Restoration, as a

party instrument making no claim to impartiality. This defect remained a feature of it throughout its history”.

62. In this Inquiry, and all that followed, the power to arrest, and the power to inquire were assumed to inhere in the House of

Commons. Sometimes, indeed, it appears that the only purpose of the Inquiry was to arrest the enemies of the Committee: thus

in 1715 Robert Walpole had the Tory leaders of the previous government, Harley and Bollingbroke, committed to the Tower by a

committee of inquiry into the peace of Utrecht. In 1695 a Select Committee of Inquiry was given “power to send for persons

papers and records”. This is most interesting, having regard to the terms of Section 2 of the Irish Act of 1997. The power to

send for persons papers and records was invariably conferred on successive English Select Committees. It has however no role

in the Irish scheme of things except as a sort of vestigial tail indicative of the origins, at least in the minds of the draftsman, of

the power to inquire.

63. Furthermore, the privileges and immunities of witnesses, conferred on persons summoned before tribunals since at least the

Special Commission Act of 1888 had its origins in a failed Bill of 1745. The enemies of Sir Robert Walpole introduced the measure

in order to encourage members of Parliament and public servants to tell what they had seen under his long administration ending

in 1742.

64. Professor Keeton describes how, since the mid-nineteenth century, there had been a drift towards independent commissions

sometimes consisting wholly of judges, sometimes of a judge and two members of parliament, one from each side, and

sometimes of a single judge, instead of Parliamentary Committees. The Parnell Commission of 1888/1889 was the best known of

these Victorian tribunals, though the diligence of the applicants counsel has found an earlier example.

65. This Commission, as is well known, investigated the alleged complicity of Charles Stewart Parnell in political violence, as well

as other topics. The publication by the London Times of letters, eventually revealed as forgeries, linking Parnell to such violence

was an important part to the background to the Commission. The political background was that it was called into being not long

after the Liberal government had fallen on the Home Rule issue, to be replaced by a Tory administration. It was universally

agreed that some form of inquiry was required but, perhaps ironically in retrospect, both Parnell and the Liberals demanded a

parliamentary inquiry. This was undoubtedly because each of these interests knew that its own supporters would be

represented on such an inquiry so that even if they were in a minority there would be no unanimous condemnation. Not

unnaturally, they credited the Tory members with the intention of finding against them regardless of the evidence. Not

withstanding this the Commission composed of three judges led to results overwhelmingly satisfactory to Parnell. This followed

the destruction of the only real evidence against him, the forged letters, in a cross-examination of extraordinary skill and drama.

But the principle éclat of his vindication derived from its coming from an independent tribunal rather than from one part of a

committee selected on party lines.

66. The Act which established the Commission, the Special Commission Act, 1888 anticipates the Act of 1921 in many

particulars. It provided to the Commissioners, in addition to the special powers of the Act, all the powers of judges of the High

Court in an action and in particular all powers rights and privileges in respect of the enforcing of the attendance of witnesses

and the examining of them on oath; the compelling of the production of documents; the punishing of persons guilty of contempt

and other vital matters. A similar course was followed in subsequent years in a number of instances including an 1893

investigation of a fatal shooting of rioters by troops in Wakefield. When, a few years later, the Westminster Parliament reverted

to the Committee of Inquiry format to investigate the “Jameson raid” into the Transvaal, the result was a fiasco. Professor

Keeton comments:-

“The proceedings of this Committee are a striking illustration of the limitations of this method of procedure, and in this

respect they anticipate the experience of the Marconi Committee. Its members were appointed on party lines, and their

party affiliations naturally determined their attitude towards those who gave evidence”.

67. The Committee imputed all the blame for the raid to the insignificant men who had actually conducted it, and entirely

acquitted their political and pro-consular leaders. The latter, in turn, claimed to know nothing. The conscious, deliberate and bi-

partisan dishonesty of the Parliamentary proceedings is well described in Elizabeth, Countess of Longford’s book, The Jameson

Raid.

68. Enough has been said to illustrate the proposition that the Marconi scandal was merely one of the causes leading to the

superceding of parliamentary inquiries into allegations of misfeasance by independent ones, in the United Kingdom, and not the

sole cause as the Committees submissions suggest. So total has this superceding been that Professor Keeton instances the

Marconi inquiry as the only example of its kind in the twentieth century, up to the time he wrote. Counsel for the appellants

were not able to refer us to any later exception, either in this country or in Great Britain, with the sole alleged exception of the

Public Accounts Committee Inquiry of 1970.

69. I have no doubt that, as a matter of history, the Parliamentary Committee of Inquiry into scandals, negligence,

misfeasance, fatalities at the hands of police or troops and military disasters, had become thoroughly discredited by 1921.

Moreover, on the evidence, the Westminster Parliament has not been persuaded to return to this method of inquiry into such

matters, with or without procedural improvements. The Tribunal of Inquiry has, in that jurisdiction, continued to be the

preferred instrument of inquiry. Where other forms of inquiry have been employed (such as the Denning inquiry into the Profumo

scandal of 1963 and the more recent Scott inquiry into arms sales) there has been no reverting to a parliamentary model and no

departure from a recognition of the need for an investigation to be conducted or chaired by an independent person, frequently

but not invariably a judge.

Position in 1922

70. Against that background, I respectfully agree with the judgment of the Divisional Court at page 79 where it is said:-

“Is it likely that the drafters of the Free State Constitution of 1922 (just one year after the passage of the 1921 Act)

would have thought it wise to revert to or continue such a discredited form of investigation? The answer appears to be

no”.

71. The Committee, in their submissions, claim that it is too large a leap to say that parliamentary inquiries of the relevant sort

have been discontinued “simply because of a politically partisan inquiry in England in 1912”. (Submissions, page 22). They go on

to submit, as logically they must, that the powers conferred by the Act of 1921 was an ‘addition’ to the power to hold a

parliamentary inquiry and not a substitution for it.

72. It appears from the historical material cited above that the entire history of the Select Committee of Inquiry, and not merely

the Marconi Inquiry of 1912, was tainted with corruption and gross political partisanship.

73. This historical background has importance for many aspects of the present case. Since the power to conduct an inquiry of

the relevant sort is claimed to be inherent, it must follow that it came into being with the Oireachtas. It would be quite

inconsistent with the fact that both the Constitutions of 1922 and of 1937 view all political authority as deriving from the

people if it were argued that an “inherent” power could come into being at some later date. Accordingly, it is relevant to inquire

as to the precise state of the common law and statute law on this question at the time of the adoption of the 1922

Constitution.

74. Lord Salmon, in his report referred to above says:-

“The record of such committees appointed to investigate allegations of public misconduct is, to say the least, unfortunate

as we have shown in Chapter 2. The Marconi scandal for this purpose sounded the death knell of this form of

investigation, and because it was wholly discredited, the Act of 1921 was passed”. (Emphasis added)

75. In Longley and Davidson - The New Roles of Parliamentary Committees (1998), there is a chapter in the British House of

Commons by SA Walkland. He states:-

“The heyday of an ad hoc select committee was the 19th century.their role in investigating matters of public concern

receded as the Regency of the Executive over major public policy and legislation was established. The other function of

select committees - investigating political scandals, has disappeared as statutory procedures of inquiry have been

established in this sphere”. (Emphasis added)

76. It thus appears that the power to investigate public misconduct by a select committee must be regarded as extinct in the

United Kingdom. Certainly, it has not been exercised since the year 1916.

Analogy between Westminster and other Parliaments

79. Quite independent of the foregoing, it appears that the power to hold a parliamentary inquiry was not regarded in English

law as inhering in an parliament other than the House of Commons. In Kielly v. Carson and Ors. (4 Moo PC 63) [1841] the

Newfoundland House of Assembly claimed to have the same inherent powers as the House of Commons. In particular they

claimed power of arrest, historically linked to the power of inquiry. The Privy Council, containing such early Victorian luminaries

as Lords Lyndhurst, Brougham, Denman, Abinger, Cottenham and Campbell, concurred in the judgment of Mr. Baron Park who

said:-

“It is said however that this power belongs to the House of Commons in England; and this, it is contended, affords an

authority for holding that it belongs, as a legal incident by the common law, to an assembly with analogous functions. But

the reason why the House of Commons has this power is not because it is a representative body with legislative

functions, but by virtue of ancient usage and prescription; the lex et consuetudo parliamenti, which forms part of the

common law of the land, and according to which the High Court of Parliament before its division and the Houses of Lords

and of Commons since are invested with many privileges.”.

80. It thus appears that in English law the House of Commons is sui generis and is no guide to the question of what is normal or

necessary in legislative assemblies. It may be important to recall that this decision does not turn on, or at all involve, the

proposition that colonial assemblies were inferior to the Westminster Parliament: the case for their enjoyment of parallel powers

was put on the basis that they were analogous bodies.

81. The argument for the possession of such powers exclusively by Westminster, based on “ancient usage and prescription”

makes no sense other than in terms of the common law. But that common law is what was applied to Saorstát Eireann by

Article 73 of the 1922 Constitution. Accordingly it is plain to demonstration that powers derived from the ancient, anomalous

and archaic “High Court of Parliament” did not apply to an Oireachtas which was an entirely new entity and which traced no

descent from that shadowy body.

82. This point is given renewed force by a comparative exercise. Section 49 of the Commonwealth of Australia Constitution Act,

1900 vested in the Australian legislature all the powers privileges and immunities of the Parliament of the United Kingdom. A

similar provision had appeared in Section 11 of the British North America Act 1867, in reference to the Parliament of Canada.

Still more significantly, the Home Rule Bill of 1912 and the Government of Ireland Act, 1920 contained the same formula. Thus,

had Ireland achieved a more or less independent legislature under either of those measures such legislature would have enjoyed

the Westminster Parliament’s power of inquiry, as it then was. But it would have enjoyed it by express parliamentary grant.

Neither of the proposed Parliaments enjoying such grant came into being in what became the Irish Free State, and later the

Republic of Ireland. The Act of 1920 did, however, become the underpinning for the Government of Northern Ireland. As regards

what is now the Republic, the Act was disapplied by the Free State Act (Consequential Provisions) Act, 1922. Neither the

Treaty nor the Free State Constitution contained any grant or assertion of Westminister’s powers privileges or immunities.

83. Two significant points, in my view, arise from the foregoing. It emphasises that, as a matter of English law, the privileges of

the Westminster Parliament, including those of inquiry and arrest or summons, can be enjoyed by another parliament only by

statutory grant. Accordingly, they are not, as a matter of common law, inherent in any other parliament. By virtue of Article 73

of the Free State Constitution, which provides that the laws in force immediately prior to its enactment, including common law,

continued to be of full force and effect unless inconsistent with the Constitution, such privileges were not applicable to Dáil or

Seanad Eireann. Secondly, the submission of the Committee that the Court should take judicial notice of the fact that sworn

inquiries are a feature of parliament “throughout the Western world” is placed in a context which dramatically reduces its

weight. There was no evidence before the Divisional Court or this Court as to the legal basis for the conduct of inquiries in other

common law jurisdictions, other than the United States. The evidence, cited above, from the British Statute Book indicates that

the basis of a power to enquire is express parliamentary grant of the Westminster Parliament’s privileges which clearly does not

apply in this country. Since Article 50 of the 1937 Constitution is in terms almost identical to Article 73 of that of 1922, it does

not seem possible to contend for any change in this position.

84. In Irish law, the dislocation and discontinuity represented by the enactment of the 1922 Constitution is very striking. I

believe that the position is correctly stated in Professor Leo Kohn’s work “The constitution of the Irish Free State”, in the

passage cited in the judgment of the Divisional Court, and in the judgment of Kingsmill Moore J. in The Irish Employers Mutual

Assurance Association [1955] IR 176, in the passage cited in the judgment of Denham J.

Analogy with tribunals.

85. All three appellants also supported the existence of an inherent power in the Oireachtas to constitute a committee of

inquiry of the relevant sort by analogy with the role of the Oireachtas in initiating an inquiry by an independent tribunal pursuant

to the 1921 Act as amended. The nature of the support derived from the Oireachtas function in relation to tribunals varied from

one appellant to another and it is fair to say that the case advanced by the Attorney General in this respect was by far the

most comprehensive.

86. The Committee in their written submissions said that “If Parliament can pass a resolution setting up a Tribunal of Inquiry,

then Parliament must be able to conduct such an investigation itself”. (Page 22). On the next page they said:-

“By logical inference, if Parliament has the power to determine that an investigation by an outside body appointed by the

Executive is necessary it is submitted that Parliament must also possess the power to investigate such matters itself. It is

submitted that it is difficult to see how Parliament could delegate to another body powers wider than those which it possesses

itself”.

87. Mr. Shatter, at page 16 of his submissions, says:-

“It is submitted that the Oireachtas could not authorise the exercise of a power of inquiry by a tribunal if it did not itself

possess the power to conduct an inquiry through a committee of the Houses of the Oireachtas, as the Oireachtas cannot

authorise the existence of a power greater than the competence which the Oireachtas itself enjoys”.

88. The Divisional Court dealt with equivalent submissions in part on the basis of a finding that “the legislature is not the

appointing body of a tribunal under the 1921 Act”. I have no doubt that this is correct and follows from the finding of Costello J.

in Goodman v. Hamilton [1992] 2 IR 542 and 554/555. The relevant part of the finding is set out in the judgment of the

Divisional Court. It is to the effect that neither the Oireachtas or the Minister can establish a tribunal of inquiry under statutory

power. Such a tribunal is established by the Minister’s administrative act. If additionally, the two Houses resolve that it is

expedient to establish an inquiry then a tribunal established by the Minister has the statutory powers conferred by the 1921 Act

as amended. In summary, there can be no tribunal without the Minister’s administrative act establishing it, but without the

Oireachtas resolutions such a tribunal will lack the statutory investigative powers.

89. That, I think, would be sufficient to deal with the point as advanced by the Committee and by Mr. Shatter in this Court.

The Attorney General, however, argues that the establishment of an inquiry under the 1921 Act is “at the very least in part

established by Parliament”. (Emphasis added). He relied on Article 28.4.3 of the Constitution, with its reference to “A tribunal

appointed by the Government or a Minister of the Government on the authority of the Houses of the Oireachtas” to support his

submission. He then went on to submit, on the basis of Goodman International v. Mr. Justice Hamilton [1992] 2 IR 542 that

tribunals of inquiry were “bodies whose existence is (at the very least in part) authorised, initiated and established by the

Oireachtas”.

90. I consider that the Attorney General may well be correct, especially in light of his citation from Article 28 of the

Constitution, in the submission set out above. But this does not, in my view, carry the consequence that since the Oireachtas

has this (at least) partial power to authorise the establishment of a tribunal, it must therefore be entitled to carry out the

Inquiry itself or by Committee. A legislature very frequently authorises an outside person or body to do things which it has no

power to do itself. The multiplicity of statutes conferring powers on courts, on officers of the Garda Síochána and on regulatory

bodies of different sorts illustrate this. Thus, for example, the Oireachtas in the Criminal Justice Act, 1984 authorised the

extension of a person’s detention under Section 4 of that Act by a garda officer not below a certain rank. It undoubtedly had

power to do so. But its possession of that power does not imply that the Oireachtas or either House thereof, or any member

thereof, itself or himself has power to authorise an extension of the person’s detention. The fundamental misapprehension in this

line of argument is contained in the submission of the Committee, and in the sentence “It is submitted that it is difficult to see

how parliament could delegate to another body powers wider than those which it possesses itself”. (Emphasis added).

91. The Oireachtas is not “delegating” the power to extend detention to a garda superintendent; it is conferring it upon him by

law. In many cases where a person or body is vested by law with a power, it would be most objectionable if the power were

exercised by a representative political group: usually, the person or body on whom such power is conferred is bound to act

independently and in accordance with law, like a Tax Inspector in raising an assessment. The maxim “nemo dat quod non

habet”, cited by the Committee, applies to items in which there is property, and exclusive title. It has no application to the

Legislative organ of Government acting as such. A legislature creates a power in another person: it does not have to transfer a

power it enjoys itself. In the case of a Tribunal, it passes a resolution which, by Statute, has a determined effect in law.

92. This distinction is indeed clearly stated in the judgment of Hederman J. in Goodman International. At page 597 of the report

he says:-

“While Article 15.10 of the Constitution provides that each House of the Oireachtas shall make its own rules and standing

orders it does not provide for the establishment of parliamentary tribunals. But in any parliamentary democracy it is

essential that the Parliament should have powers to initiate inquiries”. (Emphasis added)

93. There is a still more fundamental point. In Haughey v. Moriarty [1999] 3 IR 1 at p55, this Court described the form of inquiry

which the Oireachtas may, under the 1921 Act, “authorise” or initiate, as one “wholly independent of the political process”. This

passage has already been cited at length.

94. If this is an accurate description of the nature of a tribunal of inquiry - that it is quite independent of the political process -

then it is clear that all arguments in support of a parliamentary committee of inquiry on the basis of analogy with, or implication

from, the parliamentary role in the establishment of a tribunal to which the 1921 Act applies must fail. A power wholly or partly

to initiate a tribunal whose salient characteristic is that it is quite independent of the political process cannot support the

existence of a power, inherent or implied, to establish a form of inquiry which is wholly political and into whose final deliberations

there is no non-political input. The two entities are quite different in their essential composition. Indeed, Chief Justice Hamilton

identifies the policy behind the 1921 Act as arising from the “inherent defects graphically illustrated” in the political system of

inquiry.

Powers of the Dáil.

95. It will be remembered that the claimed power of the sub-Committee to make “findings of fact or conclusions which could

adversely affect or impugn the good name of any person” arose in the “Rules and Guidelines” made pursuant to Section 13 of

the 1997 Act. The Committee’s powers to make such findings of fact or conclusions might therefore involve the relevant rule

being intra vires the power conferred.

96. Relevant to this question, but also of more general relevance, is the question of the powers of the Oireachtas itself in the

course of its proceedings to “adversely affect or impugn the good name” of a person outside the Oireachtas.

97. Counsel for the Committee, and Mr. Shatter, claimed that the applicants submissions were fatally undermined and rendered

futile by the fact that, either following an inquiry by the Dáil itself, or without any such inquiry, statements adverse to them

could be made in Dáil Eireann in respect of which they would have no remedy by reason of the absolute privilege conferred by

Article 15.13.

98. The Constitution prescribes in considerable detail the functions of the respective Houses of the Oireachtas but does not

purport to lay down how these functions shall be discharged. Instead, by Article 15.10 it confers a power on each House to

“make its own rules and Standing Orders, with power to attach penalties for the infringement”. The Standing Orders provided to

this Court by the parties are those of 1997: their first page makes it clear that they are in an unbroken series of standing

orders, adopted or amended on many occasions, extending back to the 11th September, 1922. The validity of the Dáil’s having,

in the aftermath of the enactment of the Constitution in 1937, simply tacitly adopted the standing orders of the former House

was upheld in Re Haughey [1971] IR 217.

99. Standing Order 58 provides:-

“A member shall not make an utterance in the nature of being defamatory and where a member makes such an utterance

it may be prima facie an abuse of privilege, subject to the provisions of this standing order”.

100. Standing Order 58(11) provides:-

“An ‘utterance in the nature of being defamatory’ shall mean an utterance which, in the opinion of the Ceann Comhairle or

of the Committee, could be construed as being defamatory if made other than in the course of parliamentary proceedings

whereby a person who has been referred to by name or in such a way so as to be readily identifiable has been adversely

affected in reputation or in respect of dealings or associations with others, or injured in occupation, trade, office or

financial credit, or that person’s privacy has been unreasonably been invaded, by reason of that reference to the person”.

101. The Standing Order, at sub-paragraphs 3 - 7, amongst other things makes provision for a system whereby a person who

considers that he has been the subject of a defamatory reference can make a submission in writing to the Ceann Comhairle.

The Ceann Comhairle’s powers may however be pre-empted by the member requiring that the matter be referred to the

Committee on Procedure and Privileges, or the Ceann Comhairle may himself refer the matter to that Committee. If the

Committee decides to consider the submission, then, by Standing Order 58(4)(b)(ii):-

“In considering a request or submission and reporting to the Dáil, the Committee shall not consider or judge the truth of

any statements made in the Dáil or of the submission”. (Emphasis added)

102. If the Committee decides that, prima facie, an abuse of privilege has occurred, it may order that a response by the person

who made this submission in specified terms be published in the official report or be laid before the Dáil, or that the member who

made the utterance be required to make a personal explanation to the House “in effect to withdraw without qualification the

utterance made or to clarify otherwise the circumstances that gave rise to the utterance as may be deemed appropriate”. If he

refuses to do this the Ceann Comhairle may reprimand him.

103. This Standing Order was introduced in 1995. Prior to that, according to the information given in introducing it by a Minister

of State, the “strict Parliamentary Rule” was that no reference could be made to a person outside the House.

104. The submissions before this Court of the Committee and Mr. Shatter in particular appear wholly to disregard this Standing

Order. At paragraph 21 of their written submissions, the Committee say:-

“If the Houses had chosen not to send the report to the Joint Committee, they might simply have resolved to directly

debate the Report on the floors of the Houses. Such a debate would have the same potential to harm the good names of

the Garda applicants as they claim the Abbeylara Inquiry has”.

105. This does not appear to be true. Under Standing Orders no statement could be made about a named or identifiable person

which would adversely affect his reputation, or adversely affect him in the respect of dealings or associations with others, or

injure him in his occupation, trade, office or financial credit. It has already been conceded, and is in any event obvious, that an

adverse report suggestive of unlawful killing by a member of the Garda Síochána (or even a much less severely critical report)

could damage him in his reputation and in his membership of An Garda Síochána which, of course, is in law an “office”. It is also

his or her “occupation”. It is very striking that the formulation “adverse affect” is used both in Standing Order 58 and in the

“Rules and Guidelines” document. In the first instance, the formulation is used to protect a person from utterances having that

effect: in the second it purports expressly to contemplate such witnesses. It is also striking that the concept in Standing Order

58 of “adverse affect in reputation” is indistinguishable from “impugn the good name”, as used in the Rules.

106. It may also be noted that the protection constituted by Standing Order 58 appears to apply to members and non-members

alike.

107. It was submitted to this Court that, in prohibiting utterances “in the nature of being defamatory”, Standing Order 58 must

be regarded, by analogy with the civil law of defamation, as not applying to utterances which could be shown to be true. This

does not appear to be so. The definition of “utterance in the nature of being defamatory”, which is what is prohibited, focuses

entirely on the form and effect of the statement, without regard to whether it is true or false. Moreover, if a complaint is made,

the Committee on Procedure and Privileges is specifically forbidden by the sub-paragraph quoted above from considering or

judging the truth (or otherwise) of the statement made in the Dáil. These provisions of Standing Order 58 does not appear to be

consistent with the Committees oral or written submissions.

108. Finally, it was submitted that, despite the contents of Order 58 a member of the Garda Síochána might be damaged by a

member of the House who decided to breach the rule and make a defamatory statement regardless of it. It was pointed out

that this unfortunate situation was not unknown, though no specific examples of breach were given. It might also have been

said that the penalties available to be imposed on such a member are not significant.

109. In my view, it does not lie in the mouth of any litigant, and particularly not of members of the Oireachtas, to support an

argument by relying on the possibility that one of their own number might be in flagrant breach of the rules which Dáil Eireann

has devised for the conduct of its own business. It must be presumed in my view, and it would be most insulting to members of

Dáil Eireann not to presume, that they will observe their own standing orders, very specific in its terms, particularly where one

of these exists to protect the reputations and livelihood of all citizens, deputies and private citizens alike.

110. Not to make this presumption would be to envisage a course of consciously unlawful behaviour by deputies which, if

established, would make them quite unfit for their high office. There is no evidence that any deputy would behave in this way.

Delegation

111. I have already expressed the view that Dáil Eireann, when it authorises or initiates the application of the Tribunals of

Inquiry Act, 1921 to a tribunal appointed by a minister, is not in any sense “delegating” powers to the Tribunal but is conferring

them by a legislative process. On that basis amongst others I have rejected the argument that, since the House has power to

confer powers on a tribunal, it must necessarily possess those powers itself. I believe however that the House in referring a

matter to a committee of its own members, and the Committee in subsequently referring it to a sub-Committee is performing an

act of delegation. This, indeed, seems to be the view of the Committee itself: at paragraph 22 of its written submissions it

says:-

“The nature of the sub-Committee needs to be properly understood. Like many deliberative Assemblies, the Houses find it

appropriate to delegate responsibility for certain tasks to small groups”. (Emphasis added).

112. Can it be said that (to limit the discussion to the Dáil) that six members of the House to whom a particular item of business

has been delegated enjoy, jointly or severally, the power to make utterances which adversely affect a person, even though

that power is specifically denied them as members of the Dáil? If this is so, it would be a case of the delegate having more

powers than the delegator which, as the Committee itself says in a different context at paragraph 29, quoted above, is a logical

impossibility.

113. I would also hold that the “rules” made pursuant to Section 13 of the Act of 1997 are not effective to confer a power to

“make findings of fact or conclusions which could adversely affect or impugn the name of any person”. I would so hold for two

reasons. Firstly, in the effective part of the instrument this formulation appears only in the definition section. It does not

purport to repeal, or circumscribe in effect, Standing Order 58. If that Standing Order continues of full force and effect then the

definition section is a manifest nonsense: there can be no such committee composed of deputies. Secondly, I do not consider

that the definition section of a rule which, according to the Statute authorising its making is confined to “the conduct of

proceedings and procedures generally of committees” could confer a new substantive function on a Committee in so important a

matter. The “conduct of proceedings” clearly relates to matters procedural: the formulation in the definition section of the Rules

relates to matters of substance vitally affecting the rights, including constitutional rights, of non-members of the Oireachtas. If

such rights are to be affected, this must in my view be achieved by statute.

114. The Standing Order excluding utterances with “adverse affect” plainly establishes that Dáil Eireann was not seen by its

members who made the Standing Orders as having any form of adjudicatory role. Moreover, since the term “utterances” is broad

enough to include statements of opinion as well as statements of purported fact it seems clear that those members

contemplated that the House would prescind from any form of judgmental remark or opinion calculated to damage an individual

person. Such a decision would be quite logical in balancing the citizen’s right to his good name, guaranteed in Article 40.3.2,

where the State’s obligation to vindicate it is also declared, with the absolute privilege accorded to utterances in Dáil Eireann. If

this restraint were not applicable to a committee, the citizen would be denied a protection there which he or she is accorded in

Dáil Eireann itself.

Standing Order 58 and the functions of the Dáil.

115. Standing Order 58 plainly requires that the Dáil conduct its functions without adverse comment on any individual person,

and in particular a non-deputy. It appears to have been able to conduct its affairs in this way for many decades. Those

functions, as was agreed on the hearing of this appeal, consist of the legislative function, the financial functions laid down in

the Constitution and the function described as “holding the Executive to account”. Moreover, it has not been disputed that, in

aid of the legislative function at least, Dáil Eireann requires information from various sources some of which is most effectively

gathered by calling witnesses before a Committee of the House or a Joint Committee.

116. As I understand the Applicant’s claim, there is nothing in it that would interfere with this process either in relation to broad

issues of policy or the lessons to be learned from specific dramatic episodes. Mr. Shatter T.D. in the course of his submissions

put before the Court a report of a Committee of the New Zealand Parliament into certain policing episodes. These took place in

that country in connection with a visit there of the Chinese President. The matter was thoroughly investigated, and quite far

reaching recommendations made, in a short period of time. But the Tribunal did not consider the blame worthiness or otherwise

of individuals, police officers or civilians, much less whether any person had committed acts amounting to a criminal offence.

Two things emerge from a consideration of the report provided by Mr. Shatter. The first was that the Committee was in no way

hampered in the discharge of its parliamentary duty by not being able to report adversely on any individual person. The second

was that it was in fact assisted in performing this duty, in so far as its total time devoted to the taking of evidence was under

thirty hours. If the Committee proposed to make reports adverse to individuals, and particularly to consider suggestions that

any such persons might have acted in a way that would represent a breach of the criminal law, their task would have been

infinitely more complex. Every such person would be entitled to representation and would be foolish not to avail of it. The report

of the New Zealand Committee appears to me to emphasise that, apart from the need to protect the reputations of persons

outside parliament, Standing Order 58 or its equivalent has the merit of making parliamentary hearings much more rapid and less

legalistic that would otherwise be the case. (See: 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.) I agree with the observations of McGuinness

J. as to the essential distinction between this type of Inquiry and one focussing on or including the culpability of individuals.

The American cases.

117. The appellants place these cases in the forefront of their argument. I do not find them impressive as authority for the

propositions advanced. First, they relate to a polity as unique and exceptional as Great Britain, from whose jurisprudence their

dominant cases on this topic derive. Secondly, the American authorities have led, through the agency of the House Committee

on un-American Activities to notorious injustices eloquently chronicled by many jurists and commentators. The presently

dominant strain of authority seems to have arisen in the mid 1920s in the context of a widely felt desire to investigate the

“Teapot Dome” scandal. This line of authority was, not long afterwards, adapted to legalise the activities of the House un-

American Activities (HUAC) Committee which disfigured American public life for more than twenty years. Thirdly, the appellants

submissions ignore an alternative strand of the US jurisprudence, which, in my view, is more adapted to Irish conditions and to

the protection of rights thought important in this jurisdiction. The U.S. cases, however, graphically illustrate that “legally sterile”

decisions of legislative committees can be utterly destructive in the lives of private citizens.

118. As to the uniqueness of the American dispensation in this regard, it is unnecessary to look further than the authority cited

by the respondents. This is Longley and Davidson - The New Roles of Parliamentary Committees [1998] 227. The authors say:-

“The cross national studies that include the United States make it clear that committees in Congress are basically

different from Committees in other legislatures. The following statement makes this point ‘It should be emphasised that

the Committee system in the American Congress is not only the strongest system in the present study; it is by far the

strongest. It might in fact be argued that the American Committee system is in some ways a deviant case’ ”.

119. If the American system is indeed exceptional or deviant it is clearly unreliable as a guide to what powers are “normally and

necessarily exercised by a legislature in a democratic State”, to quote Haughey v. Moriarty [1999] 3 IR 1 at 32.

120. Furthermore, the dominant strand of American authorities makes it clear that the powers of Congressional Committees in

the United States have been continuously exercised since pre-independence days and are based on a view of their powers as

directly derivative from British law. It must be remembered hat the purpose of the American Revolution was not at bottom an

ideological one directed at establishing a radically new form of government, but one based on the proposition that the

Americans of the time were denied the rights and liberties of an Englishman. In the words of the Declaration of Independence

they believed that “A long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them

under absolute depotism”, in contrast, that is to the freedom justly the due to a subject of the Crown.

121. It is thus not inconsistent with the revolutionary origin of their Government that American legislatures assumed to

themselves powers of inquiry, of arrest, of summons and of committal identical to those claimed by Westminster. They had done

so even before the Revolution. In the Teapot Dome scandal case referred to above, McGrain v. Dougherty [1927] 273 US 161

this origin was put beyond doubt:-

“But there is no provision expressly investing either House with power to make investigations and exact testimony, to the

end that it may exercise its legislative functions advisedly and effectively. So the question arises whether this power is so

far incidental to the legislative function as to be implied.

In actual legislative practice, power to secure needed information by such means has long been treated as an attribute of the

power to legislate. It was so regarded in the British Parliament and in the Colonial Legislature before the American Revolution

and a like view has prevailed and been carried into effect in both Houses of Congress and in most of the State Legislatures.”

122. Counsel for the respondents submit, in my view correctly, that this central passage correctly states the historical

justification for the power of inquiry accepted in the United States and links that power inseparably, as it was linked in Britain,

to an inherent power to arrest. One must also consider the undoubted historical fact of the constant use of the American power

of inquiry in contrast with the desuetude of the power in the common law countries on this side of the Atlantic.

123. Although there was legal and academic dissent from the view of the Supreme Court in McGrain v. Dougherty, there was

little opposition to the notion that the Teapot Dome scandal should be investigated. But the power of investigation as an

inherent congressional prerogative, thus established after it had been long restricted, was eleven years later used to support

the notorious activities of the Houses un-American Activities Committee. It seems most unlikely that those who supported the

decision in McGrain and even those who, in 1938, voted for the establishment of the HUAC for six months only, had any inkling

that its mandate would be renewed for decades, that it would cause more human misery and injustice than any legislative organ

in the free world, while at the same time establishing the careers of such American notables as Joseph McCarthy and Richard

Nixon. This tragic tale is set out in restrained detail in the dissenting judgment in Barenblatt v. United States (360 Us 109)

[1959] which Mr. Justice Black wrote and in which the Chief Justice and Mr. Justice Douglas joined. They chronicled the

exclusion of persons whom others had described as communists or fellow travellers from federal employment, the professions,

the academy and the community as a whole. All this, it must be noted, was achieved without the great bulk of such persons

being convicted or even accused of any criminal offence, and as a result of findings and pronouncements most of which were

quite devoid of any legal affect. Persons were jailed for refusing to say whether, in their opinion, other persons were or ever

had been communists. The other victims of HUAC suffered all the disabilities of being criminally convicted, except actual

imprisonment, with none of the protections of the criminal process. And many, such as Barenblatt, brought before the

Committee on the word of a person who himself gave evidence under threat of imprisonment, were jailed for refusing to answer

the Committee’s questions. In response to this, Justice Black and his colleagues said:-

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

Congress under our Constitution. If communism is to be made a crime, and communists are to be subjected to pains and

penalties, I would still hold Barenblatt’s conviction bad, for the crime of communism, like all others, can be punished only

by a court and jury after a trial with all judicial safeguards”.

124. The salient lesson from the HUAC cases is that a person can be ruined simply by exposure and condemnation as much as

by conviction. This, indeed, according to the minority in Barenblatt was the principal purpose and effect of the Committee’s

activities. It is important, I believe, to realise that a body making findings of fact and authoritative pronouncements, but

without the power to make actual orders or impose penalties, has its being and its effects wholly in the sphere of public opinion

and private reputation. Mr. Justice Black’s dissenting judgment contains a detailed prospectus of how a pronouncement that is

“legally sterile” can destroy the life of a citizen. And yet, Black lamented, “The Court still sits”. The same point has been

recently made by the distinguished scholar Ronald Dworkin (Dworkin: New York Review of Books 28/2/02). Looking back at these

events from a safe distance, but also seeking to find some lessons for the post-September 11 world, Dworkin reflected that

after the Second World War the United States had created “ A red scare that destroyed the lives of many of its citizens

because their political opinions were unpopular. Much of this was unconstitutional but the Supreme Court tolerated almost all of

it. We are ashamed now of what we did then: we count the Courts past tolerance of McCarthyism as amongst the worst stains

on its record”.

125. I stress that this judgment pays considerable attention to the American cases because they have been placed in the

forefront of the appellants’ argument. It is unfortunate, from the appellants’ point of view, that many of these cases deal with

the notorious House un-American Activities Committee. Fairness compels one to add what must be obvious in any event, that

there is no comparison whatever between the activities of that body and those proposed by the Oireachtas sub-Committee. But

in neither of the jurisdictions, the United Kingdom and the United States, where an “inherent” parliamentary power of inquiry is

or has been acknowledged, has its record been an inspiring one from the point of view of human rights or civil liberties.

126. One basis for the majority judgment in Barenblatt has already been noted in here: the custom of congressional inquiry was

so old and well established as to be unassailable in view of the “persuasive gloss of legislative history” or the “actual legislative

practice”. Neither of these can have any application in this jurisdiction. Their absence is suggestive.

127. The alternative basis of the majority decision is based on Watkins v. United States [1957] 354 US 178. In a lengthy but, I

believe, flawed historical analysis the Court there linked the power to inquire with the power to punish for contempt and

observed that “the rudiments of the power to punish for contempt of Congress comes to us from the pages of English history”.

It then observes, at page 191, that in contemporary England “important investigations, like those conducted in America by

Congressional Committees, are made by Royal Commissions of Inquiry they are removed from the turbulent forces of politics and

partisan considerations”. The judgment of the Court goes on to point out the much greater scope for judicial review of

congressional activity in America than in England and the relatively recent origin of any significant recourse to Congressional

Inquiries. No case is mentioned between Kilbourn v. Thompson in 1880 and McGrain in 1927.

128. It can thus be seen that a direct transmission of the power of the Westminster Parliament was claimed by the majority of

the Court in Watkins.

129. This, however, is at variance with the much more scholarly historical analysis in Kilbourn v. Thompson [1880] 103 US 168.

There, it was desired to have a congressional inquiry into the bankruptcy of a real estate syndicate. A person refused to give

evidence and was ordered to be arrested, and subsequently declined to answer questions. He was then ordered to be detained

by the Sergeant-At-Arms who was ordered to hold him in custody in the common jail of the district of Columbia.

130. The Supreme Court concurred in the judgment of Mr. Justice Miller who analysed the British practice very learnedly. He

observed that:-

“It is important, however, to understand in what principle this power in the House of Commons rests, that we may see

whether it is applicable to the two Houses of Congress, and if it be, whether there are limitations to its exercise. While

there is, in the adjudged cases in the English Courts, little agreement of opinion as to the extent of this power, and the

liability of its exercise to be inquired into by the Courts, there is no difference of opinion as to its origin. This goes back to

the period when the Bishops, the Lords and the Knights and Burgesses met in one body and were, when so assembled,

called the High Court of Parliament”.

131. The learned judge then discussed the original possession by this body of a curial or judicial power, and cases on this topic.

He came eventually to the case already cited in this judgment Kielly v. Carson, and discussed it together with other cases

which he said affirmed it. He then continued:-

“We are of opinion that the right of the House of Representatives to punish the citizen for a contempt of its authority or a

breach of its privileges can derive no support from the precedents and practices of the two Houses of the English

Parliament, nor from the adjudged cases in which the English Courts have upheld these practices. Nor, taking what has

fallen from the English judges, and especially the later cases on which we have just commented, is much aid given to the

doctrine, that this power exists as one necessary to enable either House of Congress to exercise successfully their

function of legislation”.

132. The learned judge then turned to analyse the powers of Congress under the United States Constitution. He held eventually

that the warrant of the Speaker for the committal of Kilbourn was without justification.

133. It appears to me that this judgment does what those in McGrain and Watkin emphatically do not do: it analyses the

question of whether the power possessed by the House of Commons devolved upon the Houses of Congress. It finds that it did

not. The later cases on the other hand, merely state without analysis that the prerogative or privilege powers “came to us

from” the House of Commons. Moreover, McGrain does not challenge the historical analysis of the earlier case, merely

distinguishing it on the basis that Miller J. had also found that the dispute in relation to the bankrupt syndicate was appropriate

to a civil or criminal court, and not to the legislature.

134. It may be thus seen that the American Congressional Committee power is unique, and not typical or illustrative of what is

“inherent” in a legislature; that it arises from a view (and in my opinion a misguided one) of transmission directly from the House

of Commons, presumably before the end of the colonial period; that there is another and in my view more soundly based

historical analysis negativing such transmission. Whichever of these views is correct, neither can have any conceivable

application, by analogy or otherwise, to the Irish situation. This is because all of the appellants have specifically eschewed any

suggestion that the power is inherent in the Oireachtas because it was implicitly transferred from Westminster. Such a

contention is demonstrably untrue both legally and historically.

135. It is of interest to note that the views of the State and Mr. Shatter as to the non-impeachability for bias of members of a

legislative committee appear to have been accepted in the United States. Apart from the egregious example of McCarthy,

contemporary events suggest that no impropriety is perceived in summoning the former Chief Executive Officer of an enormous

company before a committee of twenty-two federal legislators eighteen of whom have received money from the Company.

Statutory provisions.

136. The appellants rely on a number of statutory provisions as suggesting, by necessary implication, the presence of an

inherent power to conduct the type of inquiry proposed. If this is not a necessary implication, they say, then all of the Acts in

question are pointless and redundant. The relevant statutes are the Oireachtas Witnesses Oaths Act, 1924, the Committee of

Public Accounts of Dáil Eireann (Privilege and Procedure) Act, 1970; the Committees of the Houses of the Oireachtas (Privilege

and Procedure) Act, 1976; the Select Committee on Legislation and Security of Dáil Eireann (Privilege and Immunity) Act, 1994;

the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997 and the

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

137. I have had the opportunity of reading the judgment about to be delivered by Mr. Justice Geoghegan. I am in general

agreement with his observations about these Acts, and that allows me to shorten my own. There can be no doubt that Acts

over a period of nearly eighty years have envisaged the attendances of witnesses before the Oireachtas or Oireachtas

Committees: if this were not so it would, for example, be impossible to conduct the promotion and opposition to Private Bills

which has gone on throughout that long period. But none of the pieces of legislation relied on either confers a power to make

findings of fact of the kind in question here or necessarily implies the existence of such power.

138. In addition to the Statutes commented upon by Geoghegan J. I would mention the Act of 1976, which is a short Act of

three sections conferring privilege and immunities on members of either House of the Oireachtas in respect of utterances in or

before a committee. It is effective in that regard no matter whether witnesses are called or not. It has no conceivable

significance, by implication or otherwise, in relation to the power to conduct an inquiry of the sort now envisaged.

139. The Select Committee on Legislation and Security of Dáil Eireann (Privilege and Immunity) Act, 1994 is of considerable

interest. It conferred a privilege and immunity on witnesses, as opposed to members, but only those who appeared before the

particular Committee named in the title of the measure. This was the well remembered Committee appointed, as the schedule to

the Act states “For the particular purpose of hearing statements and the answering of members questions upon circumstances

surrounding” five particular events in November, 1994, which led to the fall of the Government then in power.

140. The Attorney General, in the course of his submissions, said that:-

“The reference to ‘evidence’ clearly implies that the members can form a view about the evidence before them. It would

be meaningless for them to be given a power to take evidence but to have no power to form an opinion about the

evidence taken”.

141. The Act of 1994 demonstrates the fallacy in this argument. The relevant Select Committee made no findings of fact at all

but simply transmitted the transcript of its proceedings to Dáil Eireann. But the examination of the various matters set out in

the schedule to the Act, and the hearing of the witnesses in connection with this examination was thought to be a useful

exercise notwithstanding that the Committee, from its inception, intended to find no facts and to express no opinions. Against

this background it can be seen that the Act nor merely does not give rise to the implication contended for but affirmatively

demonstrates as a matter of Oireachtas history that the power to summon witnesses, the conferring of privileges on these

witnesses and the conferring of privilege on members of a committee do not imply that such committee will make any findings,

or express any opinions whatsoever, let alone findings or conclusions of the kind in question here. In the Rules and Guidelines

document referred to above, committees are required by Rule 1 to “identify, from the start of their consideration of any matter

the nature and purpose of any investigation or proceeding to be conducted by them and, in particular, whether it is proposed

to arrive at findings of fact or to express opinions”.(Emphasis added)

142. This provision, and the specific example of the Committee to which the 1994 Act relates, in my view invalidate the

submission of the Attorney. That submission would be perfectly correct if applied to a court: there could be no conceivable

purpose or justification in a court’s receiving evidence unless for the purpose of forming a view about it. But that, as recent

history demonstrates, is a point of divergence between the Courts and the Oireachtas: the latter may hear evidence for the

purpose of putting it on the record or for some other purpose without making any attempt to, or having intention of, forming a

view about it. There is no question, as a matter of history, of the 1994 Select Committee having originally intended to report,

but being unable to do so because it could not arrive at a consensus. There is in fact no obligation on a parliamentary

committee in the ordinary course of its business to arrive at a consensus: it can act by a majority. A consideration of the Dáil

resolution related to the 1994 Committee positively demonstrates that the work envisaged was the hearing of statements and

the answering of members questions by “all persons the Committee deems appropriate”. There was no provision for findings or

for a determination of any sort, and it was clearly not thought that the authority to “report to Dáil Eireann” implied any

necessity to make findings of fact. It involved merely the transmission of the transcript.

143. Even apart from this, however, there is a distinction between the hearing of evidence and acting on it, and the making of

adverse findings of fact. A committee hearing evidence, for example, in support of or opposition to a Private Bill will reach a

conclusion. Typically it will at least reach a conclusion on whether the title to the Bill has been proved or not. Similarly, a

committee may be greatly assisted by hearing the evidence of a particular person on a specific issue, as the recent D.I.R.T.

Committee was. But nothing of this nature is, or approximates to, the makings of findings of fact or conclusions adverse to a

person or likely to impugn his good name, or indeed to lead to damage in connection with his “dealings or associations with

others, or injury in his trade office or financial credit” to quote Standing Order 58. The ability to make findings of fact or

conclusions of this sort can only arise, I believe, if it is expressly and validly conferred by statute.

144. I wish to emphasise my agreement with the Divisional Court that, for the reasons they give, the case of Re Haughey

[1971] IR 217 is not authority one way or the other on the question of the existence of an inherent power. I also agree with

what Geoghegan J. has to say on this topic: his view of the tactical constraints on the plaintiffs counsel in that case is, I

believe, unanswerable. I would also observe that Haughey’s case related to an inquiry which at least arguably had statutory

authorisation given the recitation of the Dáil resolution in the special Act passed in 1970. Mr. Haughey’s advisors accurately

identified weaknesses, both constitutional and procedural, in the steps taken against their client. The decision on their

complaints has been enormously influential in a number of areas of law and especially (and very relevantly, perhaps, to other

aspects of the present case) that relating to fundamental fairness of procedures. In that regard, the applicability and authority

of the decision have been fully accepted by all sides to the present appeal. But the case should not, in my view, be read as

deciding by implication anything it did not decide expressly. It is of assistance to neither side on the question of the inherency

of the power alleged.

145. The last Statute I wish to consider is the Comptroller and Auditor General and Committees of the Houses of the Oireachtas

(Special Provisions) Act, 1998. This measure was passed in the context of the D.I.R.T. Committee and permitted the Comptroller

and Auditor General, at the request of the Dáil, to examine the assessment and collection of income tax during a specified

period, being tax that was required to be deducted by financial institutions from interest payable on deposits. The Comptroller

and Auditor General was given wide powers in this respect. The Act also provides for the extension of privilege to certain

persons on the defined occasions.

146. The effect of this Act was that much, if not all, of the investigatory work in relation to the D.I.R.T. Inquiry was carried out

outside the Oireachtas by a constitutional officer of guaranteed and recognised independence. In the final report of the “sub-

Committee on certain revenue matters”, as the D.I.R.T. sub-Committee was called, it was stated that:-

“It should be noted that the D.I.R.T. Inquiry took place under both the Committees of the Houses of the Oireachtas

(Compellability, Privileges and Immunities of Witnesses) Act, 1977 and also the Comptroller and Auditor General and

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

have been carried under the 1997 legislation alone. An integral part of the perceived success of the D.I.R.T. Inquiry was

the report furnished to the Committee of Public Accounts by the Comptroller and Auditor General. The expertise within 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 D.I.R.T.

Inquiry.” (Emphasis in original)

147. Apart from this, the Act of 1998 with its detailed provisions for the Comptroller and Auditor General and certain other

persons to require the attendance of citizens before them and to examine them on oath is of course an example of a statutory

power specifically conferred for a particular purpose.

148. The Act, however, is specific to the Public Accounts Committee in the particular matter to which the necessary Dáil

resolution relates. It has no significance, by implication or otherwise, for the question of whether the purported inherent power

to hold an inquiry of the kind proposed by the sub-Committee into the Abbeylara incident exists or not.

After the D.I.R.T. Inquiry

149. The D.I.R.T. Inquiry not merely considered the fiscal matter referred to it but went on to consider the questions of

parliamentary inquiries generally and their relationship to other forms of inquiries. In the record of these discussions, a position

which is much more nuanced and, it may be, more realistic than that advanced in argument on the hearing of this appeal was

adopted. At their meeting of the 20th November, 2000 they invited the Attorney General to appear before the Committee and

discussed with him a number of topics including, as Deputy Durkan, put it:-

“There are some areas that fall naturally within the remit of the Parliamentary Inquiry and others that do not. And I think

the difficulty would be that from this side of the table would be how best to determine where the Oireachtas should go

and should not go”.

150. The Chairman of the Committee, in discussion with the Attorney General raised a very similar issue as did Deputy Doherty.

The Attorney expressed his confidence that the D.I.R.T. Committee had correctly considered the subject matter of their inquiry

and went on:-

“Different subject matters, however, call for a demonstrably impartial and neutral person to act as chairman of an inquiry

and as author of any report. It seems that a process of compulsory inquiry leading to findings of fact which could

seriously affect the personal representation of those subject to inquire ought to be conducted in a manner calculated to

uphold their rights. Thus if people who are not members of the Oireachtas are to be compelled to come before Committees

of either House to have their probity and truthfulness tested and reported on in public they might, depending on the

subject matter, be justified in asking whether the persons summoning them compulsorily were doing so in a genuine spirit

of inquiry or with a view to advancing their own political interest or confirming their own well known prejudices. Another

practical consideration is whether members of the Oireachtas could be reasonably expected, in addition to their other

duties, to apply sustained detailed and scrupulous examinations of the subject matter of an inquiry, especially having

regard to the limited lifespan of the Dáil, the limited resources available to a committee and other public and parliamentary

commitments. Could a Dáil Committee, for instance, realistically attempt a fair detailed inquiry into, say, the Whiddy Island

disaster or the Kerry babies tragedy and would any members of a Dáil Committee want to carry out such an inquiry”.

151. In further exchanges with members of the Committee the Attorney again praised the specific inquiry it had carried out and

went on:-

“But it would be very different, I think, if the allegation had been that someone in the Bank had taken five million pounds,

as a bribe, say, and that was the issue you were trying to determine. Then I think you might pause and hesitate and say

‘Am I the correct person to judge this or am I’ I mean, I think any deputy, any conscientious deputy would ask

themselves ‘Am I concerned about acquitting this person of a charge against them of impropriety, or am I concerned

about the public reaction to my doing so?’ That is the kind of circumstance in which it is appropriate to get an

independent Tribunal of Inquiry, I’d imagine, to make the decision that somebody who is free from personal interest or

even political interest in the very vaguest meaning of that term”.

152. The foregoing, both questions and answers, obviously has significance in relation to the question of bias and

impeachability. But more generally, it shows a realisation that there are issues which a parliamentary committee should not

approach, in part because it may lack the time or resources to do so but principally because practising politicians may not be in

a position to provide the appearance of impartiality necessary when dealing with very grave allegations. This real and honestly

expressed inhibition does not suggest that the Oireachtas has a general power to inquire in an adjudicatory manner about the

doings of individual in grave matters with potentially serious consequences.

153. In Part VI, Chapter 16, of the D.I.R.T. report the existence of matters inappropriate for parliamentary inquiry is fully

acknowledged. I am far from sure, however, that the line is drawn in an appropriate place. At paragraph 4 the Committee says

the following:-

“Inquiries into political and policy matters

However, the Supreme Court went on to say regarding the purpose of a tribunal:-

‘It is to provide the machinery, wholly independent of the political process, whereby matters of grave public concern may

be investigated and the true facts brought to light’.

Arising from this observation of the Supreme Court, and the sub-Committee’s own observations, it is clear that a parliamentary

committee of inquiry would not be the appropriate forum to probe issues which are essentially of a political or policy nature”.

(Emphasis added)

154. The citation is from Haughey v. Moriarty: it forms part of the much longer citation, set out earlier in this judgment.

155. It seems to me more than possible that, with great respect to them, the members of the D.I.R.T. Committee may have

misinterpreted the passage they cite. The learned former Chief Justice was making the point, undoubtedly correctly, that the

process of inquiry by tribunal is wholly independent of the political process. But the subject matter of a tribunal may be, and

recently has been, political. If the D.I.R.T. Committee’s recommendation that Oireachtas Committees do not probe issues which

are essentially of a political nature is adopted, it will have the curious consequence that politicians will inquire into the doings of

people who have never sought political office, while considering themselves debarred from subjecting political colleagues to the

same form of inquiry.

156. On the other hand, there would appear to be absolutely no reason, even on the basis of what the D.I.R.T. Committee itself

says, why an Oireachtas Committee should consider itself debarred from “probing issues” which are essentially of a “ policy

nature”. That, one would have thought, is a central feature of the Oireachtas Committee. For example the Oireachtas

Committee on marriage breakdown, which was referred to several times in the course of the appeal, was of precisely that

nature and, by general consensus certainly among the parties to the appeal, was very successful. Certainly, it trenched on no-

one’s rights in the way in which the present sub-Committee is alleged to do.

157. Before leaving the topic of the D.I.R.T. Committee, I wish to express my agreement with the comments of Geoghegan J. on

the Affidavit of Sean Cromien in this case. Mr. Cromien is almost an epitome of a well informed citizen. He draws attention to an

obvious difficulty in a purely political system of inquiry.

A new form of accountability?

158. Apart from the inherent power which the appellants assert, no citizen, whether he holds office in the public service or not

(except possibly a member of the staff of the Oireachtas), is personally accountable to the Oireachtas or any member,

committee or sub-Committee thereof. All citizens are accountable to the law and their rights and liabilities in this regard will be

determined by the Courts. Additionally, citizens may have different areas of responsibility or accountability arising from their

status or occupation. In the present case, the applicants are members of An Garda Síochána. By the Garda Síochána Act, 1924

and the Police Forces (Amalgamation) Act, 1925 the control of the Garda Síochána is vested in the Commissioner. More

generally, by the Ministers and Secretaries Act, 1924 the function of policing is assigned to the Department of Justice. This, in

turn, is headed by the Minister who with his colleagues “shall be collectively responsible for all matters concerning the

Departments of State.”. By Article 28.4 of the Constitution the Government is responsible to Dáil Eireann. The Commissioner is

not directly or personally responsible to the Dáil or the Oireachtas.

159. It appears to me that foregoing is an exhaustive statement of responsibilities in law for policing matters. The legal and

constitutional arrangements for the control of policing are particularly sensitive because it is important that the force be

operationally independent while it is of course vital that it be generally responsible to the Government. There is no doubt that,

from the point of view of an individual applicant, he or she is under the control of the Commissioner through the various

channels existing within the Guards. The latter is responsible to the Minister and the Government, which is responsible to the

Dáil. But I cannot see that either as a private citizen or as a member of the Garda Síochána any of the applicants are directly

and individually accountable to the Oireachtas at common law or by statute. If a member of the Guards were so accountable I

do not see why any individual public servant would be exempt from this individual accountability or, in a suitable case, any

ordinary citizen. If any citizen, guard or otherwise, is to be directly accountable in general or in some circumstances, to the

Oireachtas, I believe such accountability must be imposed by Statute. I do not believe that the people, in adopting a

constitution in 1937, had before them the view that it contained the seeds of such responsibility. I do not believe that it does.

If the Oireachtas were enabled to send for any citizen and to reach findings of fact or conclusions which could be adverse to

him and affect his reputation and his employment, it would indeed be functioning as a “High Court of Parliament” and its

members would indeed be “general inquisitors of the Realm”, to use the archaic language employed by the English courts to

describe the former powers of the Westminster Parliament. I have not heard anything that convinces me that there is in our

Constitution anything which confers such a power on the Oireachtas, either in relation to civil or public servants or in relation to

citizens generally. I agree with the treatment by Denham J. of the impermissability of any implication from the Constitution of a

power to hold the type of inquiry proposed.

Potential statutory intervention.

160. It was said many times on behalf of the appellants that, even if the respondents were correct in law in saying that there

was no inherent power to hold this inquiry, their proceedings were nonetheless in some sense futile because that position could

be rectified by the passing of “a two section Act”. I wish emphatically to express my agreement with the judgment of

Geoghegan J. in this regard. That point is quite irrelevant to the case made on behalf of the Gardaí which must necessarily be

based on the state of the law as it now is. If the Court were to be influenced by the possibility of future legislation it would,

ironically, be trespassing into the legislative area by assuming that the Oireachtas would legislate in some particular fashion. A

statutorily conferred power to hold an inquiry such as that proposed might raise quite different issues to those raised by the

claimed inherent power: it is quite impossible to anticipate what issues might arise under legislation which does not exist, and it

is improper to attempt to do so.

Decision on First Issue

161. I would not allow the appeal of the Appellants against the first Order. I would however make some changes in the form of

the Order as will appear below.

Other issues arising .

162. Because of my conclusion that there is no power in the Oireachtas to hold an inquiry of the type proposed, anything I say

on the other issues raised is obiter. However, I wish to make a few observations on two of them because I think that to do so

may be helpful to persons involved in hearings of one sort or another in the future. In relation to two other topics, that of

justiciability and that relating to the sub-Committees terms of reference, I respectfully agree with the observations of

McGuinness J. and have nothing to add. I am also in general agreement with her observations on bias.

Bias.

163. This topic arose in two senses in the course of the hearing of this appeal. Firstly, it was contended by the respondents

that the proposed inquiry was afflicted by what they termed “structural bias”, that is to say bias arising from the mere fact that

the members of the Committee were all, by definition, public representatives. It was alleged that elected representatives could

not bring the necessary impartiality to bear on the inquiry: they were afflicted by a presumptive bias arising from the fact that

they were dependent on a renewal of their mandate. Alternatively, it was alleged, three members of the sub-Committee - the

chairman, Deputy Shatter, and Deputy Magennis had manifested objective bias by making various public utterances, during the

course of the hearing, in the print or electronic media. Grave exception was taken to remarks made by Deputy Howlin in the

course of the hearings.

164. In the pleadings and submissions, all appellants maintained the position that members of the Committee, as public

representatives, were simply not impeachable for bias. The sub-Committee was an Oireachtas body which had to be composed

of members of the Oireachtas; such persons were entitled to have and express views, even strong views; the hearing was not

of a judgmental or adjudicatory nature; therefore no member of the Committee could be impeached for any kind of bias,

structural or otherwise, even of the most obvious or egregious kind.

165. However, in the course of the reply by counsel for the Committee to the submissions of the respondents, the Committee’s

position changed. They first stated that they simply did not wish to express any view on the topic of bias but eventually

conceded that members of the Committee could be impeached for objective bias, that is for conduct which would give rise in

the minds of a reasonable person to an apprehension of bias. The Attorney General and Deputy Shatter did not change their

positions on this matter. However, the Attorney conceded, and Deputy Shatter did not concede, that a person appointed to

conduct an inquiry under the 1921 Act, would be impeachable for bias.

166. No appellant, however, contended that the proposed inquiry was not bound by the rules of natural justice. This concept

has been alternatively described in Irish law as constitutional justice since the judgment of Walsh J. in MacDonald v. Bord na

gCon [1965] IR 217. In either form, it now represents an impressive and sophisticated body of law. Originally, however, classic

administrative law was expressed in just two Latin maxims: audi alterem partem - that both sides must be heard - and nemo

iudex in sua causa, the rule against bias. I would not be prepared to hold that fully half of that irreducible essence of the rules

of natural justice has no application to a committee such as the present, especially having regard to the grave consequences

which, it is conceded on all sides, the result of its deliberations may have. Indeed, it seems to me extraordinary to contend that

a person liable to be afflicted to the extent conceded in argument is not entitled to challenge one or more of those involved in

the fact finding process even for the most egregious and unambiguously expressed bias. That, certainly, was the law in 17th

century England when, as we have seen, Samuel Pepys was without legal remedy against a committee composed of his

bitterest enemies and chaired by a man who did not conceal that he wished to enjoy Pepys office. It is also true that

invulnerability of the members of that Committee to allegations of bias arose from their status as members of Parliament and

thus “general inquisitors of the realm”. But the law has moved since then and for upwards of two hundred years has excluded a

person with a bias or interest, subjective or objective, from sitting in judgment on another. I do not believe that any exclusion

of elected representatives from this rule ever formed part of the law of Ireland. Even if it did, which I do not accept, it has

certainly not survived the Constitution of 1937 with its obligation on the State to “defend and vindicate” the personal rights of

the citizen amongst which his or her right to good name is specifically mentioned.

167. Having regard to my conclusion on the first issue discussed in this judgment it is not necessary for me to rule on the

allegations either of structural or of objective bias. But I would make certain general observations, so obvious that they might

be considered trite. A person who sits in judgment on the actions of another must act in a quasi judicial fashion. He must clearly

avoid bias; what is less well understood is that he must also avoid the appearance of bias. One obvious course of conduct

which risks giving rise to an appearance of bias is to discuss either the issues being inquired into, or the procedures adopted for

the inquiry, outside the context of the inquiry itself. It is therefore undesirable for persons sitting in a quasi judicial capacity to

make themselves available for interview, discussion programmes, or comment of any sort on either substantive or procedural

issues during the hearing. Members of the Oireachtas would, I imagine, be amazed to see a judge or a juror behaving in this

fashion: for precisely the same reasons restraint in this area is required of persons who agree to act in a quasi judicial capacity.

Cross-examination.

168. Where a person is accused on the basis of false statements of fact, or denied his civil or constitutional rights on the same

basis, cross-examination of the perpetrators of these falsehoods is the great weapon available to him for his own vindication.

Falsehoods may arise through deliberate calculated perjury (as in the case of Parnell) through misapprehension, through

incomplete knowledge, through bias or prejudice, through failure of memory or delusion. In some cases a witness may not be

aware that his evidence is false. A witness may be telling the literal truth but refrain, or be compelled to refrain, from giving a

context which puts it in a completely different light. And a witness called to prove a fact favourable to one side may have a

great deal of information which he is not invited to give in evidence, favourable to the other party. .

169. In Re Haughey cited above, it was said by Chief Justice O’Dhálaigh at page 264:-

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

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

affect his rights, and in compliance with the Constitution 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”.

170. Applying that general principle to the facts of that case, this Court found that a person against whom damaging allegations

were made were entitled to the following “minimum protection”:-

“(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”.

Without these rights:-

“No accused - and I speak within the context of the terms of the inquiry - could hope to make any adequate defence of

his good name. To deny such rights is, in an ancestral adage, a classic case of clocha ceangailte agus madraí scaoilte.

Article 40.3 of the Constitution is a guarantee to the citizen of basic fairness of procedures. The Constitution guarantees

such fairness, and it is the duty of the Court to underline that the words of Article 40.3 are not political shibboleths but

provide a positive protection for the citizen and his good name”.

171. Accordingly, the right to cross-examine one’s accusers is a constitutional right and not a concession. It applies, as

Haughey’s case affirmatively demonstrates, in an Oireachtas Committee or sub-Committee as well as in any other forum in which

a citizen may be accused. It is an essential, constitutionally guaranteed, aspect of fair procedures.

172. It follows from the foregoing that the right of cross-examination may not be unreasonably confined or hampered in terms of

the time allowed or otherwise. A person is, of course, entitled to cross-examine himself but equally entitled to do so by counsel.

Cross-examination is a special skill and usually an acquired one, of which a thorough knowledge of the facts of a particular case

is merely the foundation. A person without experience of the art is very unlikely to be able to conduct an effective cross-

examination.

173. As it happens, the greatest demonstration of the utility of cross-examination of which I am aware is furnished by the case

already discussed in another context, that of Parnell. Mr. Parnell had been accused of many heinous things, some on the basis

of perjured evidence supported by forged documents, produced by a witness procured by his deep-pocketed political and

commercial enemies. This conspiracy - it can be called nothing else - was destroyed in cross-examination of remarkable skill

carried out over a period of several days by the great Irish advocate Sir Charles Russell Q.C.

174. The witness was quite destroyed, did not attend for the fifth day of his cross-examination, made affidavits admitting

perjury and forgery and committed suicide when the police came to arrest him. At a stroke, Parnell was transformed from a

prisoner in the dock of public opinion to a vindicated accuser.

175. This cross-examination took time and required the patience of the Tribunal. It involved many passages (including one

where the witness was made to write out a series of apparently randomly selected words) when the point being made must

have been utterly obscure to the listeners. The Tribunal were required to have faith in the advocate, and the faith was of

course fully justified.

176. The cross-examination took place immediately after the witness, Piggott, had given evidence. Within a few days Parnell

had been vindicated and within a few weeks had received damages and a full apology from his principle accuser, The Times

newspaper. There were many other allegations against him, mostly of a political sort which, of their nature, were almost

impossible to demonstrate to be false, as had been done with Piggott and his forgeries. But the effect of the destruction of

Piggott, immediately after his direct evidence, was to transform Parnell’s ability to meet the other charges and to destroy the

credibility of his accusers in general. (See R. Barry O’Brien “Life of Lord Russell of Killowen”, London 1900).

177. None of this would have been possible had Russell had been debarred from cross-examination, limited in his time for that

purpose, been compelled to seek permission to cross-examine with reasons, or been compelled to defer his cross-examination

until all witnesses had been examined by the Commission.

178. In a case where there are many witnesses, cross-examination of the first may very significantly alter the tone and

emphasis, and even the content, of succeeding testimony.

179. Cross-examination adds considerably to the length of time which proceedings will take. But it is an essential,

constitutionally guaranteed, right which has been the means of the vindication of innocent people.

180. The proposed restrictions on cross-examination in this case have been set out in the judgment of the learned Chief

Justice. In view of my finding on the first issue, it is unnecessary to discuss them in detail. It appears that the Committee’s

attitude is heavily influenced by paragraph 5 of Chapter 16 of the report of the D.I.R.T. Committee. That reads as follows:-

“In the interests of fairness the sub-Committee acknowledges that certain adversarial mechanisms are necessary to

protect the rights of individuals. However, such adversarial procedure should be kept to an absolute minimum so that the

sub-Committee is able to expeditiously complete the work it has been mandated to do by the Oireachtas. Specific

recommendations in this are made later in this report”.

181. One of these recommendations is contained at paragraph 9.6:-

“Cross-examination: in so far as is practicable cross-examination should be kept to the end of the Inquiry or at least to

the end of distinct sections. Members completing their questioning before cross-examination commences preserves the

inquisitorial character and reduces the amount of cross-examination necessary”.

182. As can be seen from the materials supplied, the sub-Committee went considerably further in restricting cross-examination.

183. It must be firmly understood that, when a body decides to deal with matters as serious as those in question here, it

cannot (apart from anything else) deny to persons whose reputations and livelihoods are thus brought into issue the full power

to cross examine fully, as a matter of right, and without unreasonable hindrances. This, of course, is not to deny to any tribunal

the right to control prolixity or incompetence if that is manifested. There was no question of anything of this sort in this case.

184. There can be no doubt that the proposed restrictions on cross-examination notified to the Garda applicants were very far

reaching. Cross-examination, together with submissions, was scheduled for one half of one day, at the end of the evidence.

The Committee submitted that this was not writ in stone and might have been changed and that we should presume it would

have been changed if justice had so required. That would be more convincing as a submission if it had been said to the

applicants when they first took exception to the restrictions.

185. A person cannot be put on risk of a grave finding of fact against him without a full opportunity of defending himself or

herself, including by cross-examination.

A final point.

186. I wish to add that none of the findings in favour of the applicants depend in any essential way on the fact that they are

members of An Garda Síochána. I believe that the same rights and immunities are available to any citizen whether he or she is a

guard, a civil or public servant, or entirely outside the official sector.

Form of Order.

187. In common with several of my colleagues, I consider that the first Declaration answered by the Divisional Court is too wide

in its terms. I would prefer to grant relief, for the reasons given above, limited to the specific circumstances of the present

case.

188. I would therefore grant a Declaration that the conducting by the joint Oireachtas sub-Committee of an inquiry into the

fatal shooting at Abbeylara on the 20th day of April, 2000 capable of leading to adverse findings of fact and conclusions

(including a finding of unlawful killing) as to the personal culpability of an individual not a member of the Oireachtas so as to

impugn his or her good name is ultra vires in that the holding of such an inquiry is not within the inherent powers of the Houses

of the Oireachtas.

189. To the consequence of the foregoing, I would grant an Order of Certiorari quashing the letters of direction to the

respective applicants requiring them to attend before the Abbeylara sub-Committee to give evidence and to produce documents

in their possession.

190. In light of the above reliefs I do not believe it necessary to make any further Order on the applicants proceedings, or any

Order in relation to the Notice to Vary.