Supreme Court declares Oireachtas inquiry into Abbeylara shooting ultra vires due to lack of inherent power.

Keane C.J.

Denham J.

Murphy J.

Murray J.

McGuinness J.

Hardiman J.

Geoghegan J.

324, 326, 333, 334/01

THE SUPREME COURT

JUDICIAL REVIEW

BETWEEN/

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

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

EUGENE BOLAND, JAMES CAMPBELL, MICHAEL JACKSON, GERRY RUSSELL, MICHAEL O'SULLIVAN, AIDAN McCABE, WILLIAM

SISK, RONAN CAREY, TONY RYAN, JOSEPH FINNEGAN, OLIVER FLAHERTY, DESMOND O'MALLEY, PETER EARLEY, OLIVER

CASSIDY, DAVID MARTIN, MARY ANN O'BOYLE, TURLOUGH BUREN, JOHN BOYLE, BLAITHIN MORAN, SÍNEAD CONNIFFE AND

FRANK REYNOLDS

Applicants/Respondents

AND

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

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

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

MEMBERS OF THE JOINT COMMITTEE ON JUSTICE EQUALITY, DEFENCE AND WOMEN'S RIGHTS BEING THE MEMBERS FOR THE

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

THE ATTORNEY GENERAL

Respondents/Appellants

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

INTRODUCTION

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

Subcommittee Inquiry in relation to the shooting at Abbeylara. It has always been part of the respondents' case that many

aspects of the procedures adopted were irregular and defective and that these had the effect of nullifying any subsequent

steps. For the most part the respondents' submissions in this regard were accepted by the Divisional Court. I will return to them

in due course but I propose first to treat of the much more fundamental objection to the inquiry made by the respondents and

which was also an objection upheld by the Divisional Court to the effect that this inquiry was being conducted pursuant to an

alleged inherent power which did not in fact exist. The Divisional Court made a declaration in the following terms:

"The conduct of a public enquiry with the aid of the power of the State and conducted by members of the Oireachtas

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

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

is ultra vires the powers of such Houses."

The exercise of analysing the true meaning and intent of each of the expressions in this form of declaration is not without

difficulty. For instance, it is not entirely clear what is meant by "with the aid of the power of the State" nor I think is it entirely

clear as to the extent to which a literal interpretation is to be given to the words "liable to result in". But I do not propose to

engage in that analysis because although for the most part I am in agreement with the Divisional Court as to the lack of

inherent power, I am not altogether happy with that form of declaration. It is, relevant to note that at no stage in the Judicial

Review proceedings was it suggested that the Houses of the Oireachtas had no "inherent" power to inquire into anything at all

in any circumstances nor has the Divisional Court made any such suggestion in its findings and orders. To that extent the

declaration is limited. It is difficult to define what exactly the limits intended by the Divisional Court are but in due course I will

try and articulate where I think the limits lie.

It is not in dispute and, indeed, it clearly emerges from the exchanges between Mr. Rogers, S.C., counsel for the gardaí and the

subcommittee that the subcommittee felt perfectly free to carry out a thorough reinvestigation of the Abbeylara incidents and

come up with their own findings (for this purpose it matters not whether the so called "findings" can be described as findings of

fact or opinions) as to what happened and who was to blame. I think it fair to say that the subcommittee did not see itself in

any different position in terms of what it was entitled to investigate and discover from that of a tribunal established under the

Tribunals of Inquiry (Evidence) Act, 1921. It is agreed by all parties that nowhere in the Constitution is there such an express

power and, therefore, I do not find it necessary to review the Constitution article by article. It is argued however that there is

an inherent power.

There are four reasons why I consider that there is no inherent or implied power in the Oireachtas committees or subcommittees

to make fact finding inquiries leading to formal expressions of findings or opinions as to culpability of named or identifiable

individuals. These reasons are:-

1. With the possible exception of the Congress of the U.S.A., such powers in other parliaments in common law

jurisdictions derive directly or indirectly from the traditional powers in the British Houses of Parliament the historical basis

of which is inconsistent with our principle of separation of powers clearly enshrined in the Constitution.

2. The public discredit of parliamentary inquiries as of the time of the enactment of the present Constitution.

3. The obligation under Article 40.3.2 that the State should by its laws protect "as best it may" from unjust attack the

good name of every citizen. The claimed inherent power was unnecessary given that the known and respected machinery

for an independent non-political investigation of matters of public concern existed pursuant to the provisions of the

Tribunals of Inquiry (Evidence) Act, 1921.

4. Given the inherent likelihood of structural bias or at the very least the immense practical difficulties in avoiding

objective bias coupled with the fact that such bias issues would be justiciable in the courts, it would seem unreal to

suggest that on some purely theoretical basis the claimed inherent power must be read into the Constitution.

I will now expand on each of these four reasons.

The historical origins of such inherent powers

The Attorney General, counsel for the committee and Mr. Shatter all concede that if under the Constitution there is such an

inherent power, it derives from a perusal of the Constitution itself albeit in the context of surrounding circumstances including

the circumstance that other parliaments such as the U.K. Parliament and the U.S. Congress claimed and in the case of the U.S.

Congress actually exercise such powers. What is important is that none of the appellants suggest that the alleged inherent

power is simply a natural follow on from an equivalent inherent power being contained in the 1922 Constitution and which in turn

derived its inherent powers from the historical fact that the imperial parliament had such power.

If that case was open to be made it would have been a much easier one to pursue but it was accepted by all sides that a

plausible argument to this effect could not be made having regard to the historical origin of the House of Commons power to

conduct such inquiries. The House of Commons traditionally claimed not merely the power to conduct such an inquiry but also to

compel attendance of witnesses and punish in default without there being any statutory power to do so, this power having

derived from the historical claim of the British Parliament to be effectively a court as well as a legislature and the powers were

exercised by Parliament in its capacity as the High Court of Parliament. But all of this is quite inconsistent with the separation of

powers effected by Bunreacht na hÉireann.

Given the historical root of the power, any continued assertion of such power (albeit not exercised) is therefore neutral

evidence as to whether such powers naturally inhere in parliaments generally in the common law world or perhaps more broadly

in the civilised world. It is perfectly clear that in British jurisprudence this power was considered to belong to the U.K.

Parliament by virtue of its own history and not by virtue of any general common law principles relating to parliaments in general

and this fact is underlined by Privy Council decisions to the effect that such powers were not inherent in the legislatures of

British colonies. From what has been written by scholars and commented upon by judges it seems clear that the 1922

Constitution even though absorbing some British constitutional practices was intended by its draftsmen to be a new creation

and not to give rise to implied derivatives. In their written submissions before this court the respondents have drawn the court's

attention to the fact that at the time of the drafting of the 1922 Constitution consideration was given to the existence of a

parliamentary inquiry along the lines of the American Congress when the institutions of State were conceived. There were

originally proposals that a system of committees similar to the American committees and having similar powers would be

established. The draft known as Draft C of the Free State Constitution in Article 15 contains the following provision which is set

out in the written submissions.

"The House has the right - which on the motion of one third of its members becomes an obligation - to appoint

committee of inquiry. Details as to the election, number and procedure of such committees shall be determined by

Standing Orders or special resolution. The courts and administrative authorities are bound to produce evidence and

documents before such committees ..."

Draft C had been put forward by Professor (later Mr. Justice) Murnaghan and Professor Alfred O'Rahilly. The latter was involved

in the drafting of the 1937 Constitution and again it is pointed out in the written submissions that Professor Brian Farrell has

observed that "there are strong echoes of Draft C to be found in Bunreacht na hÉireann." (Farrell the Drafting of the Irish Free

State Constitution Part III 1971 Irish Jurist at p. 112). In the event no such powers were inserted into either Constitution.

If a power of inquiry of the kind contended for in this case was to be vested in the Oireachtas one would have expected that

the Constitution would have expressly said so and that it would then either have been expressly provided that certain

appropriate powers of enforcing attendance of witnesses and penalising those who did not would be included or at the very

least that there would be provisions in the Constitution expressly contemplating legislation to establish compellability and

enforceability powers. There is a useful footnote in the respondents' submissions at p. 91 which is not contested. In it, it is

recited that in Australia section 49 of the Commonwealth of Australia Constitution Act, 1900 expressly vested in the Australian

Senate and House of Representatives all of the powers, privileges and immunities of the Parliament of the United Kingdom. It

goes on to point out that a similar stipulation appeared in section 18 of the British North America Act, 1867 with reference to

the Parliament of Canada. But as the respondents point out what is even more significant is that that formula appeared in the

Home Rule Bill, 1912 and the Government of Ireland Act, 1920. There were, therefore, obvious precedents available to be

included in the 1922 Constitution and they were not availed of. A natural inference can be drawn that they were not intended

to be implied or inherent in that Constitution. If that is so, it seems even less likely that they were intended to be inherent in

the 1937 Constitution.

Notwithstanding that the clear historical basis of the inherent powers to conduct inquiries and enforce attendance etc. of the

British Houses of Parliament derived from parliament's judicial role and not its legislative role and that any such powers in the

Australian and Canadian Parliaments would appear to have originated indirectly from the same source, it is nevertheless argued

on behalf of the appellants that the power to conduct an inquiry such as this particular Abbeylara Inquiry is naturally inherent

to any parliament or legislative assembly in a sovereign state. In pursuing this argument the appellants have had to rely

primarily on the American case law which of course related to the powers exercised by the U.S.A. Congress.

There is one important preliminary point to be made about the American cases. They are for the most part concerned with a

contested right on the part of a House of Congress to punish a person for contempt of the House in the context usually of such

person refusing a summons to be questioned or something of that nature. Underlying all the cases is the acceptance of an

inherent power in some instances on the part of the Houses of Congress to impose punishment (though in post war years a

statute imposing more effective penalties was more usually resorted to), but that very fact influenced the courts in setting

limits to the powers of the Houses of Congress to carry out inquiries and investigations. What to some extent complicates this

particular case is that nobody is suggesting that the Houses of the Oireachtas have any inherent power to compel or to punish.

In so far as they have given themselves any such powers they are contained in statute, a point to which I will be returning.

There is considerable force in the argument of Mr. Donal O'Donnell, S.C., counsel for the respondents that the absence of

powers of compellability and punishment in the Constitution and the general acceptance that our constitutional jurisprudence

would not permit of them being implied is of itself and by itself a strong argument against the proposition that there could be

any power in the Houses of the Oireachtas to investigate past events with a view to making "findings" of culpability on the part

of named individuals.

Returning to the subject of the American cases the first one of importance is Kilbourn v. Thompson 103 U.S. 168 (1880). In

that case it was argued before the United States Supreme Court that the power of a House of Congress to punish for contempt

existed and two principal arguments were put forward to support that view. The first was its exercise by the House of Commons

of England from which country it was said the United States had derived its system of parliamentary law and secondly, on the

basis of the necessity of such a power to enable the two Houses of Congress to perform the duties and exercise the powers

which the Constitution had conferred on them. Miller J. in delivering the opinion of the court and after reviewing English

authorities but with particular regard to Kielley v. Carson and Others 4 Moo. P.C. 63 decided in 1841 came to the conclusion

that the right of the House of Representatives to punish a citizen for a contempt of its authority or a breach of its privileges

could derive no support from the precedents and practices of the two Houses of the English Parliament. It had been made clear

in the relevant English authorities that the House of Commons and the House of Lords and, indeed, the single House before

those two Houses were created were courts of judicature as well as being legislatures and that the powers contended for

derived from their judicature role. In Kielley v. Carson Parke B. had delivered the unanimous judgment of a strong court to this

effect. But Miller J. also went on to express the view that:

"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."

That last statement was obiter dicta because in the event the court decided against Congress on the basis that whatever kind

of powers of inquiry Congress might have, it certainly did not have the general power of making inquiry into the private affairs of

the citizen which this was.

The next case of importance is McGrain v. Daugherty 273 U.S. 135 (1927). For the sake of brevity, I do not intend to go into

the facts of that case. It is sufficient to cite the following passage from the opinion of the U.S. Supreme Court delivered by Van

Devanter J. at p. 12 of the printout copy which was before this court.

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

legislative function. It was so regarded and implied in American legislatures before the Constitution was framed and

ratified. Both Houses of Congress took this view of it early in their history - the House of Representatives with the

approving votes of Mr. Madison and other members whose service in the Convention which framed the Constitution

gives special significance to their action - and both Houses have implied the power accordingly up to the present time.

The Acts of 1798 and 1857 judged by their comprehensive terms, were intended to recognise the existence of this

power in both Houses and to enable them to employ it 'more effectually' than before. So when their practice in the

matter is appraised according to the circumstances in which it was begun and to those in which it has been continued, it

falls nothing short of a practical construction, long continued, of the constitutional provisions respecting their powers,

and therefore it should be taken as fixing the meaning of those provisions, if otherwise doubtful. We are further of

opinion that the provisions are not of doubtful meaning, but, as was held by this court in the cases we have reviewed,

are intended to be effectively exercised, and therefore to carry with them such auxiliary powers as are necessary and

appropriate to that end. While the power to exact information in aid of the legislative function was not involved in those

cases, the rule of interpretation applied there is applicable here. A legislative body cannot legislate wisely or effectively

in the absence of information respecting the conditions which the legislation is intended to affect or change; and where

the legislative body does not itself possess the requisite information - which not infrequently is true - recourse must be

had to others who do possess it. Experience has taught that mere requests for such information often are unavailed of,

and also that information which is volunteered is not always accurate or complete; so some means of compulsion are

essential to obtain what is needed. All this was true before and when the Constitution was framed and adopted. In that

period the power of inquiry, with enforcing process, was regarded and employed as a necessary and appropriate

attribute of the power to legislate - indeed, was treated as inhering in it. Thus there is ample warrant for thinking, as we

do, that the constitutional provisions which commit the legislative function to the two Houses are intended to include

this attribute to the end that the function may be effectively exercised."

This passage helps to remind one of the wholly different practices and, indeed, culture of the U.S. Legislature functioning in a

presidential system of government on the one hand and the Irish Legislature functioning in the context of a parliamentary

democracy on the other hand. The Irish Parliament like the parliaments of all the European parliamentary democracies and

respected non-European parliamentary democracies such as Australia, New Zealand, Canada, India etc. carry on their

parliamentary business for the most part in accordance with the plans and policies of the government of the day which in turn is

formed out of the political parties. The idea that Dáil Éireann might in its independent existence contemplate the possibility of

some form of legislation and seek to initiate a substantial fact finding inquiry aided by provisions regarding the compellability of

witnesses etc. for that purpose is to a large extent a fantasy. It may well suit a government to procure that the Dáil would

initiate inquiries of one kind or another to allay public worries and with a view to reporting on appropriate legislation but it would

be the exception rather than the rule. For the most part, it is the Government and not the Oireachtas which proposes the

legislation. Accordingly, the kind of statement which I have just cited from McGrain v. Daugherty is of very little relevance to

the Irish situation. That is one reason, among others, why it is difficult to accept the argument that American inquiry practice is

an indicator of what the inherent powers of the Oireachtas were intended to be in 1937.

I now move to the case most relied upon by the appellants. That is Watkins v. United States 354 U.S. 178 (1957). The lengthy

headnote to that case sets out the principles decided in the opinion of the United States Supreme Court delivered by Chief

Justice Warren. It is not necessary to set it out in full but some of the principles held are worth specifically mentioning. It

should be explained that this case arose out of conviction of the statutory offence of refusing to answer a question "pertinent

to the question under inquiry" in an inquiry of a House of Congress. The investigating body was the Subcommittee of the House

of Representatives Committee on un-American Activities and the petitioner in the case had refused to answer questions as to

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

grounds that those questions were outside of the proper scope of the Committee's activities and not relevant to its work. He

succeeded on the grounds that no clear understanding of the "question under inquiry" could be gleaned from the resolution

authorising the full committee, the legislative history thereof, the Committee's practices thereunder, the action authorising the

subcommittee, the statement of the Chairman at the opening of the hearings or his statement in response to petitioners'

protest. But some of the more important principles enunciated by the court were as follows:

"1. The power of Congress to conduct investigations, inherent in the legislative process, is broad; but it is not unlimited.

2. Congress has no general authority to expose the private affairs of individuals without justification in terms of the

functions of Congress.

3. No inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task of Congress.

4. A congressional investigation into individual affairs is invalid if unrelated to any legislative purpose, because it is

beyond the powers conferred upon Congress by the Constitution. Kilbourn v. Thompson cited above.

5. It cannot simply be assumed that every Congressional investigation is justified by a public need that overbalances any

private rights affected, since to do so would be to abdicate the responsibility placed by the Constitution upon the

judiciary to ensure that Congress does not unjustifiably encroach upon an individual's right of privacy nor abridge his

liberty of speech, press, religion or assembly.

6. In authorising an investigation by a committee it is essential that the Senate or House should spell out the

Committee's jurisdiction and purpose with sufficient particularity to ensure that compulsory process is used only in

furtherance of a legislative purpose."

It is true that Chief Justice Warren makes it clear that a broad interpretation has to be given to legislative purposes. The

following passage appears at p. 187 of the report:

"That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or

possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of

enabling the Congress to remedy them. It comprehends probes into departments of the Federal Government to expose

corruption, inefficiency or waste. But broad as is this power of inquiry, it is not unlimited. There is no general authority

to expose the private affairs of individuals without justification in terms of the functions of the Congress."

A further passage which is relevant appears at page 198 and reads as follows:

"We cannot simply assume, however, that every Congressional investigation is justified by a public need that

overbalances any private rights affected. To do so would be to abdicate the responsibility placed by the Constitution

upon the judiciary to ensure that the Congress does not unjustifiably encroach upon an individual's right to privacy nor

abridge his liberty of speech, press, religion or assembly."

Running right through the opinion of the court delivered by Chief Justice Warren however is the underlying fact that what the

court was talking about was an inherent power to conduct investigations for legislative purposes accompanied by inherent

compellability powers (albeit supplemented by statutory powers). It is accepted, as I have already pointed out in this case that

no inherent compellability powers exist in our Constitution. Such powers as exist of this nature are created by statute. But that

being so, I do not think one can regard the American precedents as being evidence to support an inherent power such as is

contended for here under our Constitution.

But even if one was to adopt the principles in Watkins v. The United States as a foundation for implying the controversial

powers into the Irish Constitution, in so far as it was being a power exercised, as in this case, by a joint committee of the

Oireachtas there would be no need to extend the principles in Watkins as suggested by the Attorney General so as to embrace

purposes other than legislative purposes. Dáil Éireann has been given some non-legislative functions by the Constitution but

Seanad Éireann almost none. In so far as there is a joint committee of both Houses the purposes must be common to both. I do

not propose to consider in this judgment what powers Dáil Éireann may have in relation to its non-legislative functions as that

question does not arise. But if it is suggested that there is an inherent power limited to legislative purposes (a form of language

which may be inappropriate as I will elaborate on later) then in my view if the inquiry is to be intra vires, the exact legislative

purposes must be stated in advance. I see no reason why that should not be done. I do not accept or agree with the theory

that provided an inquiry was vaguely connected with matters of public interest it could be regarded as being for legislative

purposes. I would not follow the wide definition of legislative purposes emerging in the later American case law particularly

having regard to the difference in legislative process as already adverted to and having regard also to its genesis which was in

the main the committee for investigating un-American activities, a body of dubious repute. Furthermore even if one is to

postulate a legitimate exercise of a supposed inherent power to conduct an inquiry for legislative purposes, the committee or

subcommittee conducting the investigation would be obliged to avoid, as far as possible, the attribution of blame and especially

apparent criminal misconduct to a named individual. In this case there is nothing to suggest that the subcommittee was

confining itself to considering the need for new legislation. Such an inquiry would have to so confine itself and its report should

primarily relate to whether there is or is not such a need. A legitimate inquiry by a committee of the Oireachtas which was

directed towards a perfectly proper legislative purpose might in some circumstances inevitably and unavoidably lead to implied

blame being attached to an individual. That would not necessarily render the inquiry ultra vires and, therefore, I consider that

the wording of the declaration made by the Divisional Court is too wide, particularly having regard to the use of the words "liable

to". It is also true that a legitimate Oireachtas investigation may inevitably result in a finding of fault in a management system

which in some circumstances could involve an implied attachment of blame to the relevant manager. That might also be

legitimate. But the all important point is that the inquiry from the beginning would be merely for the purpose of considering

whether new legislation was required and for no other purpose. That was emphatically not the case here. My treatment of the

American case law overlaps to some extent the much more elaborate treatment of it by Hardiman J. in his judgment. I would like

to add that I am in complete agreement with his commentary on it.

The public discredit of parliamentary inquiries

It was a well known fact at the time of the enactment of the present Constitution and, indeed, at the time of the enactment of

the 1922 Constitution that the Tribunals of Inquiry (Evidence) Act, 1921 had been passed in the wake of public discredit of

parliamentary committee inquiries. A curious feature of the 1921 Act is that it is resorted to in this case in different ways in

support of both the appellants' case and the respondents' case. I take the view that the existence of that Act supports the

respondents' case and, for reasons which I will go into in considerable detail later on in this judgment, does not support the

appellants' case.

The background to the 1921 Act is well set out at pages 10-15 of the Royal Commission on Tribunals of Inquiry, 1966 in Britain

more usually referred to as the Salmon Commission. The opening paragraph of that brief history reads as follows:-

"From the middle of the 17th Century until 1921, the usual method of investigating events giving rise to public disquiet

about the alleged misconduct of Ministers or other public servants was by a select Parliamentary Committee or

Commission of Inquiry. Some of the serious disadvantages of this procedure are illustrated by the following examples

from the history of the last 300 years."

The report then goes on to give some examples of the unsatisfactory nature of such inquiries, a matter more fully elaborated

upon by Professor George W. Keeton in his book Trial by Tribunal in chapters 2 and 3. But two particular points referred to by

Salmon and, indeed, by Keeton are very relevant. Salmon points out that early in the 20th century there was the Marconi

scandal. The select committee appointed to investigate the scandal divided in its report along party political lines and this

method of investigation became further discredited. But more to the point in the Irish context, Lord Justice Salmon (as he then

was) pointed out that even as long ago as 1888 the shortcomings of such committees of inquiry had been recognised. That was

the year in which serious allegations were made against Charles Stewart Parnell and others. It was decided that rather than

refer the matter for investigation to a select parliamentary committee, a special commission with powers was set up by the

Special Commission Act, 1888. This Special Act was effectively a forerunner of the Tribunals of Inquiry (Evidence) Act, 1921. It

was considered a success. Finally, in 1921 grave allegations were made by a member of parliament against officials in the

Ministry of Munitions and as Lord Justice Salmon puts it "the favourable impression made by the Parnell Commission and the

unpleasant flavour left behind by the Marconi Committee of Inquiry were remembered." He goes on to say that it was felt at

the time that the investigation by parliamentary committees of inquiry of alleged public misconduct was entirely discredited and

that accordingly new machinery should be created more appropriate to deal not only with that particular current matter but

with similar matters which might arise. Hence the enactment of the Tribunals of Inquiry (Evidence) Act, 1921. The draftsmen of

the 1922 and 1937 Constitution would have been well aware of that historical backdrop and, therefore, to use the word

"inherent" in another context, why should there be any inherent reason for contemplating Oireachtas inquiries leading to findings

of personal culpability when a perfectly good statute was in place in the form of the 1921 Act and which has since been held by

this court to be consistent with Bunreacht na hÉireann.

But the existence of the 1921 Act and in particular its consistency with the constitution is strongly availed of by the appellants

in support of their case, the argument being that in effect parliament merely provided for machinery to delegate powers which it

already had to an independent tribunal. I reject that argument and I will be returning to it in some detail later on in the

judgment.

Constitutional protection of the citizen from unjust attack and his good name

Article 40.3.2 of the Constitution provides that the State shall, in particular, by its laws protect as best it may from unjust

attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen. An express

constitutional protection of good name is unusual in written constitutions. Even the European Convention of Human Rights does

not have an equivalent provision except in the negative sense of providing a justification for restriction on freedom of

expression. Most rights in the Constitution are not absolute. Very often, as in this case, they are qualified by expressions such

as "as best it may" and in other instances there may be clashes between two constitutional rights and a question of superiority

in the hierarchy arises. The protection of the good name of the citizen, therefore, can almost always arguably be rendered

ineffective by some semi-plausible proposition balancing the rights of others or the common good. But there is a danger that

constitutional rights can be excessively whittled away by arguments based on so called "balance". In this case the wording of

that paragraph in the Constitution is of relevance. In the absence of an express provision for such a controversial type of

inquiry in the Constitution, the question must be asked why should a court imply one for the sake of some interest such as the

common good when as of 1937 there was perfectly good machinery in place for a type of inquiry which would be perceived by

the public to be much more independent than a parliamentary inquiry. If in the interests of the common good, a fact finding

inquiry liable to damage the good name of individuals is considered desirable; the 1921 Act is there to be invoked.

In this latter connection it is perhaps interesting to refer to the Standing Orders of the Dáil. Although by virtue of the express

provisions of the Constitution no legal redress is ever available for defamatory words uttered in either House of the Oireachtas,

Dáil Éireann by its own Standing Orders has been extremely careful to restrict such defamatory utterances within the House as

far as possible and in adopting such Standing Orders it must surely have been mindful of the constitutional obligation to

vindicate the citizen's good name as far as possible. Order 58 of the Standing Orders of the Dáil lays down elaborate rules

effectively restricting the uttering of defamatory words. A member is not allowed to 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 the Standing Order. I do not propose to recite the Order in full because it is quite long but it is sufficient to point out that it

contains provisions allowing the Ceann Comhairle to take various steps in case of infringement. In some instances the member

may be compelled to withdraw the allegation or it may be referred to the Committee on Procedure and Privileges which in turn

may lead to a reprimand by the Ceann Comhairle. Interestingly, it is also provided that a document laid before the Dáil under

Standing Order 58 "shall not contain any matter the publication of which would have the effect of -

(i) unreasonably adversely affecting or injuring a person or unreasonably invading a person's privacy in the manner

referred to in paragraph 11 of the Standing Order.

(ii) Unreasonably adding to or aggravating any such adverse affect, injury or invasion of privacy suffered by a person."

It is true of course that the Dáil can change its Standing Orders at any time and it could remove Order 58 with impunity but it is

of some significance nevertheless that the Dáil in making its own Standing Orders and with the Constitution in place did not

consider it right to allow a free for all as far as defamatory allegations were concerned.

The built in likelihood of perceived bias

A subcommittee such as the appellant subcommittee would be reporting to the joint Oireachtas committee which in turn would

be reporting to the Dáil and Seanad respectively. The joint committee, as was customary, was balanced in its membership

according to the strength of the political parties. It would only be in rare circumstances that a body composed in that way

would be perceived by reasonable members of the public as capable of independent arbitration. I appreciate that this court in

approaching the problem of whether there is an inherent power or not has for the most part to consider the position as of 1937

when the present Constitution came into existence. In those days there was no "Questions and Answers", little media probing of

politicians but if anything the public was even more politically aware than they are now as civil war politics infused a large

proportion of households. Then, as now, there may not have been a perception of great ideological differences between

government and opposition. But political feelings at that time were such that the ordinary member of the public of reasonable

disposition would have been even less likely to view an Oireachtas committee determination as truly independent. Even in cases

where in the eyes of a reasonable observer bias might not exist merely from the composition of the body, the conduct of an

inquiry by such committee or subcommittee is fraught with great practical difficulties if bias in the legal sense is to be avoided. I

will be dealing with that topic in more detail later on in this judgment. From the point of view of the Oireachtas none of this

would matter if bias issues were non-justiciable but for the reasons given later in this judgment, I am quite satisfied that such

issues are justiciable. Having regard therefore to the combination of the inherent likelihood of structural bias or at the very least

the obvious difficulties in avoiding objective bias in any given case, I see no reason to infer that the framers of the Constitution

and the people in enacting it intended that such powers should inhere in the Oireachtas.

Two of the most important arguments made by the appellants in favour of the inherent power are firstly that the form of inquiry

the subject matter of In re Haughey [1971] I.R. 217 was unlawful if the arguments of the respondents are correct and

secondly, that the logic of the jurisprudence of this court in its approach to the 1921 Act displayed in Goodman v. Hamilton

[1992] 2 I.R. 542 and Haughey v. Moriarty [1999] 3 I.R. 1 leads to the conclusion that the powers of the 1921 Act Tribunals

are derived from Parliament and that Parliament itself always had those powers.

The In re Haughey argument

The argument based on In re Haughey was addressed by the Divisional Court at p. 91 of its judgment as follows:

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

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

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

been raised for any number of reasons. One perhaps was that the particular inquiry in that case was being carried out

with specific statutory powers pertinent to that inquiry. For whatever reason the point was not argued or decided and

therefore we do not think that the decision in In re Haughey can be relied upon as providing judicial authority for the

notion of an inherent power to conduct an inquiry of the type involved in this case."

As to the relevance of In re Haughey I can say no more than what was contained in that paragraph, though I do not think that

the "specific statutory powers pertinent to that inquiry" either add to or subtract from the arguments of either side. The

Committee of Public Accounts of Dáil Éireann (Privilege and Procedure) Act, 1970 was essentially an Act providing for

procedures and compellability as is the case with the Committees of the Houses of the Oireachtas (Compellability, Privileges and

Immunities of Witnesses) Act, 1997. The passing of an Act for the purposes of exercising alleged powers cannot be used as

evidence of the existence of such powers. At best it is evidence of the Oireachtas believing it had such powers. There is no

doubt that In re Haughey was carefully and successfully argued by a counsel who is acknowledged as the outstanding

constitutional lawyer of his time and yet the case against the inherent power was not made. Like the Divisional Court, I take

the view that speculation as to why it was not made is irrelevant but it is possible that the reasons were tactical. At any rate

as the Divisional Court pointed, out it is quite clear that In re Haughey cannot be regarded as authority for the existence of the

inherent power contended for.

The Tribunal Case Law Argument

In relation to the second counter-argument it is essential to revisit and reconsider the provisions of the Tribunals of Inquiry

(Evidence) Act, 1921. I can find nothing in either the genesis or the terms of that Act to support the view that Parliament in

enacting that Act was effectively providing for the delegation in some circumstances of its own powers of inquiry to an

independent non-political tribunal. I will start by attempting to analyse section 1 of the 1921 Act without reference to

subsequent case law and having done so I will move on to consider the alleged relevance of Goodman International v. Hamilton

cited above and Haughey v. Moriarty cited above.

Section 1(1) of the 1921 Act reads as follows:

"Where it has been resolved (whether before or after the commencement of this Act) by both Houses of Parliament that

it is expedient that a tribunal be established for inquiring into a definite matter described in the Resolution as of urgent

public importance, and in pursuance of the Resolution a tribunal is appointed for the purpose either by His Majesty or a

Secretary of State, the instrument by which the tribunal is appointed or any instrument supplemental thereto may

provide that this Act shall apply, and in such case the tribunal shall have all such powers, rights, and privileges as are

vested in the High Court, or in Scotland the Court of Session, or a judge of either such court, on the occasion of an

action in respect of the following matters:-

(a) The enforcing the attendance of witnesses and examining them on oath, affirmation, or otherwise;

(b) the compelling of the production of documents;

(c) subject to rules of court, the issuing of a commission or request to examine witnesses abroad;

and a summons signed by one or more of the members of the tribunal may be substituted for and shall be

equivalent to any formal process capable of being issued in any action for enforcing the attendance of witnesses

and compelling the production of documents."

In interpreting this subsection there would probably be general agreement that Parliament was not thereby investing in its

respective Houses statutory powers to make resolutions of the kind described. It was assumed (and I think assumed correctly)

that the Houses already had such powers. If, for instance before the enactment of the 1921 Act, the two Houses of Parliament

had each passed resolutions on some occasion that it was expedient that a tribunal be established by the executive to inquire

into a particular matter it would never have occurred to anybody that there was something invalid or ultra vires about such a

resolution. If, following on the resolution, the executive set up an inquiry, the inquiry in question prior to 1921 would not have

had the benefit of the powers which it had following on the 1921 Act but that is the only difference.

From and after passing of the 1921 Act, once a resolution in those terms has been passed by each House of Parliament the

executive when setting up the tribunal if it decides to do so (an option to which I will return) may state in the instrument

setting it up that the Act is to apply and then all the consequences under the Act relating to discovery, compellability etc.

come into play.

In addition to the assumption underlying the subsection that either House of Parliament could, at any time and in any

circumstances, pass a resolution that it be expedient that a tribunal be established for inquiring into some definite matter, there

is a second underlying assumption. In its original form that assumption was that "His Majesty or a Secretary of State" could as

part of his inherent executive powers set up such an inquiry. On the wording of the subsection it might be just about open to

argument that it is Parliament which effectively sets up the tribunal and that the instrument executed by "His Majesty or a

Secretary of State" was not intended to be an executive act as such but merely an administrative act or in other words a piece

of paper work pursuant to the instructions of Parliament. The subsection has never been interpreted in that way and it is not

contended for in this case. All the well known tribunals in modern times such as Whiddy, the Stardust, the Kerry Babies, the

Beef Tribunal, the Dunnes Payments Tribunal etc. have all reported to either the Taoiseach or a particular Government Minister

who established the tribunal. It seems clear that the tribunal envisaged by the 1921 Act is an executive tribunal or rather a

tribunal established pursuant to inherent executive powers but by virtue of the 1921 Act and consequent on the instrument

setting it up, the tribunal, although an executive tribunal, has a number of powers conferred on it by Parliament. The tribunal is

not, however, an agent of Parliament.

My view on this does not count if the Supreme Court has already held otherwise and it is suggested that it effectively has done

so. The two cases relied on in this regard are Goodman International v. Hamilton and Haughey v. Moriarty cited above. I do not

think that my suggested interpretation is in conflict with those decisions and I turn to consider them now.

Since the Supreme Court on appeal in the Goodman International case upheld the views of Costello J. in the High Court, it is

important first to consider the judgment of Costello J., but it is even more important to consider the context in which it was

delivered. The principal issue in the Goodman case was whether there was an infringement of the separation of powers in that

allegedly the tribunal was administering justice. Both the High Court and Supreme Court rejected that argument. But in the

course of his judgment Costello J. made the following observation at p. 554 of the report:-

"It is obvious that, if these claims are correct, the powers of Parliament to inquire into matters of public importance,

both through its own committees and by means of tribunals of inquiry, are severely circumscribed by the Constitution."

I do not think that on any fair interpretation of that sentence the learned High Court judge was suggesting that any inquiry into

matters of public importance could be conducted either by a Dáil committee or by a tribunal of inquiry interchangeably. I doubt

very much if any such concept was in his mind when he framed that sentence. On the same page of the report Costello J. gives

the following analysis of the basis for 1921 Act Tribunals with which I agree and which is accepted by the respondents in their

written and oral submissions. The passage in question reads as follows:

"There is no statutory provision which empowers the establishment of this tribunal either by the two Houses or the

Minister. It is established by an administrative Act, that is by the order of the Minister of the 31st of May 1991. The

Government or any Minister can inquire into matters of public interest as part of the exercise of its executive powers,

but if this is done without reference to Parliament then the inquiry will not have the statutory powers which are to be

found in the Tribunals of Inquiry (Evidence) Act, 1921, and the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979."

Costello J. then, however, goes on to use an expression that was probably perfectly apt in the sense that he intended it but

which unfortunately is open to other interpretations. He said that the resolutions of the two Houses contemplated by the 1921

Act was "in effect a direction to the Government or the relevant Minister to establish such an inquiry". The word "direction"

appears nowhere in the 1921 Act nor does any cognate word. But in using the expression "in effect" what Costello J. was

intending to convey in my view is that for all intents and purposes such resolutions would be regarded as a direction by

Parliament to the Government. Clearly, such resolutions would have immense political force and immense moral force. But I

doubt very much that he had in mind that some kind of order of mandamus or its equivalent could be obtained by anybody or in

any circumstances from a court directing the Government or the relevant Minister to establish an inquiry. At p. 558 of the

report Costello J. makes another important observation:-

"The Constitution enjoins all public authorities, including the two Houses of the Oireachtas to protect and vindicate the

good name of every citizen (Article 40, s. 3 sub-s. 2). If disparaging allegations of wrongdoing by a citizen are made

(either in Parliament or outside of it) and if the two Houses conclude that the public interest requires that these

allegations be investigated, I do not think they are prohibited from directing the establishment of a tribunal of inquiry

because of this constitutional duty. The holding of an inquiry into disparaging allegations will, of course, give them fresh

circulation. But if the public interest requires that they be investigated and if procedures are adopted which permit the

person accused of wrongdoing to rebut the allegations and clear his name, I do not consider that any breach of

constitutional duty occurs by the establishment of the tribunal."

What the learned judge is saying here is that despite the constitutional protection of one's good name a balancing against that

of the public interest may require the holding of an inquiry into disparaging allegations which would give them fresh circulation.

As I understand it, the respondents are not disputing that proposition and, indeed, in this case at least they are not necessarily

arguing that an Oireachtas committee, if it had the statutory powers could not perform that function, but they are arguing that

they would have to have the power first and that they do not in fact have the power and that one (among others) of the

reasons why it would be wrong to read into the present Constitution such an implied power is because any such balancing act

as envisaged by Costello J. in relation to the vindication of one's good name must be done in such a way as to cause the

minimum unnecessary damage. The respondents say that 1921 Act Tribunals which are not contrary to the Constitution perform

that function admirably.

The judgment of Costello J. upholding the Beef tribunal was appealed to the Supreme Court and the appeal was dismissed. The

judgment of Finlay C.J. is primarily concerned with the argument that the tribunal was administering justice and in relation to

the matters which are potentially relevant to these proceedings he effectively endorsed the views of Costello J. But Hederman

J. at p. 597 of the report dealt with the nature of tribunals established under the 1921 Act. He had this to say:-

"But in any parliamentary democracy it is essential that the Parliament should have powers to initiate inquiries. Many

inquiries have in the past emanated from something said in Parliament. By Article 15, s. 12 of the Constitution absolute

privilege attaches to whatever is said in the Houses of the Oireachtas.

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

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

the Marconi scandal contrasted with the success of the Parnell Commission which had been established by the Special

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

(under the chairmanship of Lord Justice Salmon, Cmnd. 3121) sets out the historical background to the legislation and

advocates the continuation of such tribunals as being an essential concomitant to the efficient working of Parliament in

contrast to inquiries or tribunals that do not have the necessary powers to compel witnesses and so forth."

This passage and some of the remarks which followed from Hederman J. would seem to indicate that he found this necessary

power in a parliamentary democracy to "initiate inquiries" in the structure of the 1921 Act. And I do not think that anything that

he said in that judgment lends support to the kind of inquiry contemplated in relation to Abbeylara.

Turning now to Haughey v. Moriarty and to the judgment of Hamilton C.J. in relation to the matters raised other than the

constitutionality of the Act. At p. 53 Hamilton C.J. undoubtedly refers to "the inquiry mandated by the resolution and order

made in the present case". But when read in context I am satisfied that "mandated" meant nothing more than what I have

already suggested was meant by "directed" in the judgment of Costello J. in the Goodman case. But later on in the same page

the following observations of Hamilton C.J. appear:-

"It may be the case - and is almost invariably the case - that a tribunal established under the Act of 1921 is empowered

to make recommendations as to legislative or administrative reforms which appear to it to be desirable having regard to

its findings. That is so in the case of the tribunal now under consideration. But it is by no means the only purpose for

which such a tribunal may be established. In the report of the Royal Commission of Tribunals of Inquiry, 1966 in the

United Kingdom under the chairmanship of Salmon L.J. (hereafter the Salmon Report) the following passage appears at

paragraph 27.

'The exceptionally inquisitorial powers conferred upon a tribunal of inquiry under the Act of 1921 necessarily

exposed the ordinary citizen to the risk of having aspects of his private life uncovered which would otherwise

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

to reputation. For these reasons, we are strongly of the opinion that inquisitorial machinery set up under the Act

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

vital public importance concerning which there is something in the nature of a nationwide crisis of confidence. In

such cases we consider that no other method of investigation would be adequate.'

And again at para. 28:-

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

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

public life without which a success for democracy is impossible. It is essential that on the very rare occasions

when crises of public confidence occur, the evil, if it exists, shall be exposed so that it may be rooted out; or if it

does not exist, the public shall be satisfied that in reality there is no substance in the prevalent rumours and

suspicions by which they have been disturbed. We are satisfied that this would be difficult if not impossible without

powers of investigation by an inquisitorial tribunal possessing the powers conferred by the Act of 1921.'

Those considerations are also applicable in this jurisdiction. 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 the matters of

urgent public importance for which it is to inquire into and report those findings to Parliament or the relevant Minister."

I think it is clear from this passage that Hamilton C.J. was not intending in any way to equate tribunals under the Act of 1921

with Oireachtas commissions and committees. On the contrary, he was contrasting different forms of bodies suitable for

different purposes. Indeed, this is even more clear in the succeeding passages in the judgment in which he, like Hederman J. in

the Goodman case, refers to the history of tribunals as set out in the Salmon Report and the work of George W. Keeton and in

particular the contrast between the independent commission set up in relation to the Parnell allegations and the disastrous

House of Commons Inquiry into the Marconi affair. It is then worth quoting the former Chief Justice's comments in the next

paragraph which is at p. 55 of the report.

"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. Such an inquiry, generally but not necessarily conducted by one or more judges, typically takes

the form of an investigation such as the present into circumstances which have raised the possibility of corruption or

other impropriety in public life. The terms of the legislation, however, do not restrict the Oireachtas and the Executive

to initiating such an inquiry to that area: the 'definite matters' of 'urgent public importance' can obviously extend to

disasters involving loss of life and serious injury such as were the subject of the Whiddy Island Disaster Report (1979)

and the Stardust Fire Report (1982)."

This passage was in the context to some extent of making it clear that a 1921 Act Inquiry did not have to be in aid of the

legislative process but there does not appear to be a phrase or a sentence in that judgment which supports the view that there

is an inherent power in the Houses of the Oireachtas to conduct any kind of inquiry for which the 1921 Act could have been

availed of.

The statutory powers argument

While those are the principal arguments put forward in favour of the inherent power it has also been submitted that the court

should take into account that the Oireachtas itself and its predecessor the Oireachtas of Saorstát Éireann must have

considered it had such powers or so the argument runs having regard to the Acts passed in aid of the exercise of such powers.

The first of these Acts is the Oireachtas Witnesses Oaths Act, 1924. That Act provided for the administration of Oaths by the

Houses of the Oireachtas and Committees thereof and for a penalty for false evidence based on the penalties. That Act is still

applicable to the current Oireachtas but it does not seem to be relevant to the question of whether an inquiry such as the

Abbeylara Inquiry is within the powers of the Oireachtas. It is not suggested by the respondents that the Houses of the

Oireachtas are precluded from inquiring into anything.

The second statute in this connections is the Committee of Public Accounts of Dáil Éireann (Privilege and Procedure) Act, 1970

already referred to. This was an Act designed for a special purpose. It was intended to protect and give additional powers

including compellability powers to the Committee of Public Accounts of Dáil Éireann "while engaged in the performance of the

functions assigned to it by order of Dáil Éireann made on the 1st day of December 1970". It was a limited Act for a limited

purpose. As I have already indicated it does appear to have been enacted under the underlying assumption that that committee

had an inherent power to conduct an inquiry of the kind now impugned. But as I have also observed earlier on in this judgment

it is not legitimate to work backwards from that Act to prove the existence of an inherent power.

It is exactly the same position with the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of

Witnesses) Act, 1997. This is an elaborate piece of general legislation conferring wide powers on Oireachtas Committees and

Subcommittees to compel the giving of oral evidence and to compel discovery and production of documents and, indeed, there

is a general power given to "give any other directions for the purpose of the proceedings concerned that appear to the

Committee to be reasonable and just". There are then special provisions exempting certain evidence. As has already been

pointed out the compellability power can only be carried out with the consent in writing of "the appropriate subcommittee". In

relation to a committee appointed jointly by both Houses of the Oireachtas or a subcommittee of such a committee this means

a subcommittee appointed jointly by the Committee on Procedures and Privileges of each such House. The long title of the 1997

Act is:

"an Act to make provision regarding compellability and the privileges and immunities of witnesses before committees of

the Houses of the Oireachtas and to provide for related matters."

It is not in dispute that it is a procedural Act only and it does not confer any powers of inquiry on either House of the

Oireachtas. It is remarkable that that Act was passed sixty years after the Constitution came into force. Whilst effectively that

Act may be used for some forms of legitimate inquiry, it cannot be availed of as a basis of proof of the existence of the inherent

power contended for in this case.

The sterile effect argument

The appellants also submit that the so called "findings" are sterile of effect and are therefore unobjectionable. In relation to this

argument, I am in agreement with the cogent views expressed by Hardiman J. in his judgment. There is nothing which I can

usefully add.

The wide-ranging Abbeylara Inquiry intended by the subcommittee is in my view ultra vires for the reasons which I have given. I

agree with Hardiman J. that it can be contrasted unfavourably with the inquiry by the Justice and Electoral Committee of the

House of Representatives of the New Zealand Parliament into police handling of riotous behaviour during the visit to New

Zealand of the President of China in 1999. The summary of recommendations to the Government listed in the report make it

quite clear that that Committee viewed their functions rather differently from the subcommittee in this case notwithstanding

that the Parliament of New Zealand would at any rate have wider powers of inquiry based on the British House of Commons

powers. The summary of recommendations to the Government of New Zealand commences with the following words.

"We make the following recommendations to the Government about the legislative framework currently governing the

New Zealand police".

There then followed seven recommendations which can be summarised as follows:

1. Consideration should be given to new legislation clarifying the constitutional status of the police and in particular the

constitutional boundaries between the police and the government.

2. Consideration should be given to enacting a particular regulation in the New Zealand Police Regulations into primary

legislation.

3. In accordance with recommendations made in the report there should be some changes in the police policy on

demonstrations.

4. That policy should be stated in clear language and should be well publicised so that everybody understands it.

5. There should be a further police general instruction about visiting foreign dignitaries.

6. In advance of visits by foreign dignitaries to New Zealand high priority should be given to full frank and conclusive

discussions between government agencies and the police at an early stage.

7. Limits on police powers resulting from the New Zealand Bill of Rights as contained in an Act of 1990 should be explained

to all foreign delegations before such visits.

These recommendations are far removed from say a finding that the fourth shot at Abbeylara should not have been fired.

Further elaboration of this contrast can be found in paragraphs 126-130 inclusive of the written submissions lodged on behalf of

the respondents. I think it useful to quote those paragraphs in full. They read as follows:-

"126. In essence, therefore, the questions squarely and immediately raised by this case, in particular, is whether the

Irish Constitution, by implication rather than express words, has constituted the Oireachtas, as it were, the Grand

Inquest of the Irish Nation, and empowered it to carry out consciousness raising investigations ventilating issues of

national concern and to do so by machinery not wholly independent of the political process but by the political process

itself.

127. The issue is raised all the more squarely in this case because the fact which the subcommittee contends it has

power to find, and the issue which it seeks to investigate is, perhaps, the most serious known to the law: the possible

claim that one human being's life has been unlawfully taken by another and in this case one or more persons who are, in

addition, servants of the State. It must necessarily follow that if the Oireachtas does have power to investigate a

matter such as this, that the power of investigation and ventilation sweeps extremely far indeed.

128. As is set out at footnote 1 above, both Deputy Shatter and the committee explicitly contend that the power of the

Oireachtas to conduct an inquiry 'did not have to be legitimately and proximately related to and in furtherance of the

legislative function'. Again, both Deputy Shatter and the committee expressly rely on the passage from Haughey v.

Moriarty cited above and contend that that power conferred upon a tribunal of inquiry (to investigate for the purposes

of ascertaining the true facts alone, and unrelated to any legislative function) is also a power of the Oireachtas.

129. Two things might be observed. The exercise of such a power would be novel and unusual for the Oireachtas; and

the exercise of specific power is capable of having a direct impact of the rights and interests of individual citizens.

130. It seemed quite clear from the line of questioning pursued by the committee at the hearing that the committee

was intent on determining that central issue. That that is so is also confirmed by the fact that the essential contentions

raised in the submissions made on the Garda Commissioner's report, focused on this issue and challenged the conclusion

in the report. However, if there were any doubt, it is, it is submitted, clearly dispelled by the submissions of the

subcommittee to this court itself. For example page 2:

'Page 2: The continuing public concern in the event arises from the fact that he died at the hands of An Garda

Síochána ... in circumstances which raise the recurring question - was John Carthy's death unavoidable?

Page 2: The public call, understandably, was for an inquiry into the circumstances.

Page 3: It is accepted on all sides that the questions raised by the circumstances are of major public concern and

importance and deserving, if not requiring, investigation by some form of public inquiry.

Page 3: It is not alone proper for these questions to be asked and the matter generally to be investigated, but it is

imperative that this happened and entirely legitimate for Parliament to do so.

Page 4: Any inquiry is worthless unless it raises the fundamental questions about whether John Carthy's death was

unavoidable.

Page 4: The contention that the reference ... precluded taking evidence on the makings of findings and

recommendations on that most basic question - is by any criterion, unworldly.

Pages 4-5: It is submitted that it is difficult to see what possible purpose could be served by considering the

Culligan Report if the subcommittee did not have the power to consider if that report was correct or not ... It is

submitted that there could be no possible means of assessing the report unless the subcommittee could first

establish whether the facts stated in it were true or not'."

It can be seen from those quotations that the subcommittee was quite clearly intent on carrying out its own separate

investigation of the facts leading possibly to a finding (admittedly without legal effect) that an individual member of An Garda

Síochána committed an unlawful killing. For the reasons which I have indicated I cannot accept that such a sweeping implied

power is contained in the Constitution.

A further argument or perhaps more accurately debating point which has been put forward on behalf of the appellants in this

case is that if, contrary to their contention, there is no inherent power to conduct an inquiry of this kind, there is nothing to

prevent the Oireachtas tomorrow enacting legislation which would give a subcommittee such as this the power now contended

for. But the short answer to this response is that it is irrelevant. There is obviously no issue before this court nor was there

before the Divisional Court as to whether the Oireachtas could constitutionally enact such a law. Indeed once such a law was

enacted it would immediately attract the presumption of constitutionality. It would be improper for this court in any way to

speculate as to the constitutionality of such an Act. The question simply does not arise. It might well be for instance that there

would be considerable opposition to such a Bill if introduced or more to the point that even if it was thought to be perfectly

constitutional, it might be perceived in practice to be very difficult to operate in any controversial circumstances such as the

Abbeylara incident because of the problems of bias to which I will now be returning.

A key question that has to be answered is this. If in the public interest it is necessary that there be an inquiry potentially

resulting in findings (whether they be of fact or opinion) which are damaging to the good name of the citizen (otherwise

protected by the Constitution) is it not essential that such inquiry be independent and be perceived to be independent?

Bias

I have already expressed the view, that both having regard to a likely frequent perception of structural bias and at any rate to

the practical difficulties in the way of a T.D. especially avoiding accusations of bias, there is every reason for rejecting the

alleged inherent power to conduct inquiries of the nature of Abbeylara.

If I were wrong in that view, the question of bias would still arise on a case by case basis. I reject the idea that the legal

principles relating to bias whether subjective or objective either do not apply or are in any way modified or are in any way non-

justiciable at the suit of third parties in relation to inquiries conducted by Oireachtas committee and subcommittees. If the

question of fair procedures is justiciable as it clearly is having regard to In re Haughey why should it be any different in the

case of bias? It is for this reason that although in theory, if this appeal is dismissed, the Oireachtas could legislate to give itself

the powers which it now claims to be inherent, the exercise of those powers might prove legally difficult because I am quite

satisfied that all the normal rules of natural and constitutional justice involving fair procedures and absence of bias whether

subjective or objective would apply no differently than in the case of an extra parliamentary inquiry. Any member of the Dáil or

Seanad who was on such committee or subcommittee would be precluded from commenting on the matters the subject matter

of the inquiry whether to the press or on radio or television or in any other public forum other than the Houses of the

Oireachtas themselves but there they would be subject to their own restraining Standing Orders. One can imagine all kinds of

practical difficulties because as was pointed out at the hearing T.D.s are in constant communication with their constituents and

quite properly are lobbied by their constituents and have to take into account the views of their constituents.

The comments of a distinguished former Secretary of the Department of Finance, Mr. Sean Cromien, as contained in an affidavit

sworn by him in these proceedings on the 9th of July, 2001 are apposite in this connection. I think it useful to cite the entire of

paragraph 14 of that affidavit which reads as follows:

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

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

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

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

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

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

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

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

expected to operate in a quasi-judicial manner, as in this inquiry by the subcommittee.

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

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

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

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

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

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

to the allocation of the surplus on the National Lottery and the sale of Carysfort College.

Another example arises in the report of the Public Accounts Committee Inquiry into DIRT. This was widely acclaimed in

the media. However, it was also criticised for not dealing effectively with the role of politicians in the 1980s in allowing

tax evasion to thrive. For example, the Irish Times editorial of 16th December, 1999, while praising the report added:-

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

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

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

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

issues, as an independent tribunal would be."

Coming from a former civil servant of such seniority and experience, the passage cited is a remarkable bit of testimony and it

underlines the obvious problems about an Oireachtas subcommittee conducting an extensive inquiry in the nature of the

Abbeylara Inquiry even if it was given a statutory power to do so.

Mrs. Justice McGuinness in her judgment has treated of the bias issue in somewhat more detail and I am in complete agreement

with her analysis and observations.

Having regard to the view which I have taken on the absence of an inherent power I do not strictly speaking have to deal with

the various jurisdictional points arising out of the procedures which were adopted. But as these points assumed considerable

importance at the hearing of the appeal I think that I should express my view on them as they may have implications for future

cases.

Justiciability

First of all there is the question of justiciability. While it is true that out of respect for the separation of powers the courts will

not interfere with the internal operations of the orders and rules of the Houses in respect of their own members, the non-

justiciability principle stops there. If there is some essential procedural step which a house of the Oireachtas or a committee

thereof has to take before rights of an outsider, that is to say a non-member of the House can be affected, then at the suit of

that outsider the courts can give relief if that essential step is not taken. Broadly speaking, that is the view of the Divisional

Court and I agree with it.

Certiorari

But even in cases where the acts of an Oireachtas committee may be reviewable and where there is found to be some

irregularity it does not follow that this will always lead to the discretionary remedy of certiorari. An instance where it might be

refused is where various procedural steps were taken possibly in the wrong sequence but where the applicant for judicial review

is in fact in exactly the same position as he would have been if the steps had been taken in the correct sequence. Indeed, to

some extent the respect for the separation of powers is relevant in relation to this issue. The courts should be particularly slow

to quash steps taken by committees of the Oireachtas if no damage in a real sense has resulted. Although I do not have to

form a definite view on it having regard to my views on other aspects of the case, I would be inclined to differ from the

Divisional Court in relation to the net effect of the events of the 10th, 11th and 12th of April, 2001. It is true that when the

subcommittee made the application to the Compellability Committee on the 11th of April, 2001 they accidentally omitted from

the documentation the amendment which had been made on the 10th of April but on the other hand they included an

amendment which had not technically yet been made but was in fact made on the following day i.e. the 12th of April, 2001.

Since the decision of the Compellability Committee was made on the assumption that the amendment of the 12th of April was

made and, of course, in the event it was made later and since the amendment of the 10th of April was not really relevant to

the matters to be considered by the Compellability Committee, once the later amendment was before it, I consider that a strong

case could be made out for not granting certiorari if that was the only objection. However, it is by no means the only

objection. On the 26th of April, 2001 a substantial amendment was made to the order establishing the subcommittee. Prior to

that amendment in relation to the Abbeylara incident the subcommittee was to have only those functions of the joint committee

which were set out in certain subparagraphs of the joint committee's order of reference. Following on the amendment the

functions were to include "such other matters as may be jointly referred to (the joint committee) from time to time by both

Houses of the Oireachtas." In my opinion from and after that amendment a new consent from the Compellability Committee

would have been required. The objection that there was none is a valid objection and is justiciable and could lead to an order of

certiorari if none of the other points arose.

Absence of Consent of Compellability Committee

This brings me to the much more fundamental objection made by the respondents namely, that there was no consent in writing

from the Compellability Committee under the 1997 Act in existence at the time the directions to witnesses to attend were

transmitted. It is submitted that that being so the directions need not be obeyed. The argument against this is that the

Compellability Committee had duly met and considered the application and had consented prior to that date but the consent

had not been recorded in a written document. It is suggested by the appellants that all that is required is a consent and that

the requirement of writing is only for the purposes of proof somewhat analogous to a court order being the spoken order from

the Bench but the proof of it being the written order prepared sometime afterwards. While I accept that there is room for

argument, I am firmly of the opinion that the view taken by the Divisional Court is correct. Surprisingly, it is difficult to find a

precedent. Two sections that circuit practitioners and conveyancers would have been very familiar with in the past i.e. sections

12 and 45 of the Land Act, 1965, contained the expression "the consent in writing" rather than just the word "consent" with a

further subsection enacting that such consent has to be in writing. Another commonplace example is section 10 of the Landlord

and Tenant Act (Ireland), 1860 ("Deasy's Act") where the expression "the consent in writing of the landlord" is used. It is true

that to speak of the written consent of the committee is not an easy concept especially where the statute makes it clear that

it is not intended that all members of the committee sign the consent but that it will be effectively deemed a written consent if

signed by the chairman. However, as the Divisional Court points out, if it was intended that there need not be a consent in

writing as such before the directions would be sent out, the section could have been quite differently worded. On the words in

fact used, I find myself in agreement with the Divisional Court. I cannot improve on the way that court put it in its judgment at

p. 59 ff and I will now set out the relevant passage in full as it accurately represents my own views.

"The court is satisfied that by so providing the Legislature made it clear that a consent for the purposes of the Act

cannot be achieved by the mere passage of a resolution by the Compellability Committee but must be in written form in

accordance with the terms of section 3(9)(a). This is a specific statutory definition of what constitutes a consent for

the purposes of the Act. It would have been open to the legislature to provide otherwise. For example it might have

prescribed the passage of a resolution as enough and then go on to provide a method of proof of the passage of such

resolution by reference to document in writing to be produced under the hand of the Chairman. That is a concept well

known in company law where the passage of a resolution by a company is proved by an appropriately authenticated

minute. But that is not what the legislature chose to do here. It specifically defines a consent in mandatory terms as

one which 'shall be in writing'. Despite some infelicity in the subsection when it goes on to speak of the 'document

containing it' we do not think that the court would be justified in interpreting a mandatory provision requiring that the

consent be in writing as meaning the precise opposite. The only form of consent which satisfies the Act is one in writing,

duly authenticated as prescribed and not otherwise.

The respondents point to the fact that the statute does not require that the consent exists prior to the issue of the

direction by the subcommittee. Whilst it is true that the word 'prior' is not contained in the statutory provisions it has to

be remembered that under section 3(1) the subcommittee could only give directions directing the attendance of

persons if it had the consent of the Compellability Committee. As such a consent has the special statutory meaning

mandated under section 3(9)(a) as one which 'shall be in writing' it follows that in the absence of a consent which

satisfies that statutory provision there was no consent extant at the time the directions were issued on the 12th of

April, 2001. It follows therefore that there was no authority vested in the subcommittee to issue these directions."

The alternative interpretation put forward by Mr. Sean Ryan, S.C. counsel for the subcommittee provides what might be

arguably a perfectly reasonable way of doing things if the legislature had permitted. I do not, therefore, approach this matter

on what might be reasonable or unreasonable but on the actual wording used in the section. Under the ordinary canons of

construction unless there is some ambiguity the court must interpret the intentions of the Oireachtas by the words used. That

was the approach of the Divisional Court and I agree with the court's conclusions.

A second objection to the consent is that it was given on foot of wrong information. Having regard to the view I have taken in

relation to the requirement of a written consent I do not find it necessary to consider this other objection. Without going

further into it I would not be altogether satisfied that a court should quash the proceedings of an inquiry on that ground alone

having regard to the surrounding circumstances already outlined.

Procedural Complaints

Turning now to the complaints against the procedures intended to be adopted by the subcommittee, I would first make a

general comment. As the subcommittee hearings had not got under way I do not consider that certiorari would be appropriate if

a statement of intended objectionable procedures was the only ground. That remedy would be premature. But that does not

mean that a judicial review proceeding itself would be premature. Once there was such a clear declaration of intention as to the

nature of the procedures it was legitimate to bring judicial review proceedings but in so far as the court would uphold the

objections of the applicants (respondents in this appeal) it should be reflected in the form of declaratory relief rather than in

the form of certiorari. Under the doctrine of separation of powers each of the three branches of Government endeavours as far

as is practicable to show respect for the other. A court would be bound to assume in normal circumstances that an Oireachtas

subcommittee would alter its plans if a court had declared intended procedures to be legally objectionable, nor indeed in such

circumstances would orders of mandamus or prohibition or orders in the nature of injunctions be appropriate.

The following were the two procedural directions made by the subcommittee which are considered the most objectionable and

subject to judicial review.

1. A ruling that the evidence in chief of each witness would be taken first and that then such cross-examinations as

might be permitted by the subcommittee would take place.

2. That in an elaborate schedule of timings prepared by the subcommittee all cross-examinations together with the closing

addresses were intended to be done on one day at the end.

It is well established by decided cases that in respect of any kind of tribunal or inquiry body, as to what is or is not fair

procedures may vary depending on the nature of the matters being investigated. There is, for instance, no absolute right to

cross-examine. As to whether there should a right to cross-examine or not in any given instance depends on the

circumstances. There was nothing wrong in principle with a ruling that permission had to be obtained to cross-examine. But

such permission would have to be based on the significance of the witness to be cross-examined and the nature of the

evidence of that witness which might be adverse to the interests of the cross-examiner's client. The granting or withholding of

the permission could not normally be based on any kind of detailed inquiry as to the nature of the cross-examination itself

because surprise can often be the essence of cross-examination. It is also true that in courts of law cross-examination of a

friendly witness can often be extremely helpful. But while there can be no hard and fast rule, in most circumstances it would be

my view that a committee of this kind would be entitled to confine cross-examination to witnesses who are giving definite

evidence or making allegations inimical to the party who wants to cross-examine. If the subject matter is serious as the events

of the Abbeylara Inquiry certainly are, cross-examination in those circumstances would have to be allowed but not necessarily

of every witness.

The confining of the cross-examinations to one day if that was implemented would be wholly objectionable and a grossly unfair

procedure. But declaratory relief in this regard is all that the respondents on the appeal would require. If the majority of the

court takes the same view, as I do, in relation to the absence of inherent power the question does not arise.

Form of Declaration

I now come to what in some ways is the most difficult problem. I refer to the actual form of relief which ought to be granted. I

have already indicated dissatisfaction with the form of declaration actually made but to devise a viable substitute is not an

easy task. I have no doubt that a joint Oireachtas committee or a subcommittee thereof has power to gather information up to

a point for its legislative purposes. In a sense they can do this because there can be no legal objection to it rather than

pursuant to the somewhat grandiose title of "inherent power". Order 79 of the Dáil Standing Orders provided that a select

committee empowered "to send for persons, papers and records, may report its opinions and observations, together with the

minutes of evidence taken before it, to the Dáil, and also make a special report of any matters which it may think fit to bring

to the notice of the Dáil. " But in so far as there is any element of compellability it can only be under the 1997 Act. Before that

Act the evidence had to be obtained on a voluntary basis. There were analogous provisions in the Seanad Standing Orders.

With or without compellability powers it may well be that an Oireachtas committee or subcommittee carrying out an inquiry for a

legitimate legislative purpose, that is to say, to obtain necessary information for the purposes of a particular type of legislation

if proved appropriate, may necessarily have to probe into management structures and there may consequentially be read into

the report implied criticism of persons in existing management roles. I do not think that would necessarily be objectionable and

that is why I consider the declaration made by the Divisional Court to be too wide. In the context for instance of Abbeylara I

see a very big difference between a view being expressed by an Oireachtas subcommittee that muddled orders were given and

defective systems devised at some particular level in the gardaí and an opinion on the other hand that an individual garda on

the spot had effectively committed what the public would interpret as an unlawful killing. But there is a further objection that I

see to the form of declaration made in the first of the declaratory orders contained in the order of the Divisional Court. In

considering whether the form of inquiry is within the inherent powers of the Houses of the Oireachtas and, therefore, legitimate

or illegitimate as the case may be, it is irrelevant that it is conducted "with the aid of the power of the State" if by that is

meant the compellability powers under the 1997 Act or an equivalent. I would not favour any abstract declaration of general

legal principle. Such a declaration

is not normal and is liable to give rise to problems in the future. The usual practice and, in my view, the wise practice is for the

general principle to be set out in the written judgment and if a declaratory order is thought desirable it should relate to the

specific facts of the case. I have already indicated the relevant general principles as I see them but I will try and summarise

them. Any kind of inquiry by an Oireachtas committee or subcommittee for a direct and express legislative purpose and which

would not be intended to result in findings of blameworthy conduct on the part of identifiable individuals is constitutionally and

legally permissible. In some instances such an inquiry would be constitutionally and legally permissible even if as a necessary

fallout some blame became attached by the committee to higher levels of management who could be identified. Again there is a

very big difference between a conclusion that command structures at some high level of the gardaí were defective on the one

hand and blame being placed on a particular garda on the other. The former may not be constitutionally or legally objectionable

depending on the circumstances but the latter will be. The only actual declaration I would make in substitution for the first

declaration in the Divisional Court's order would be the following.

"A declaration that the conducting by the Joint Oireachtas Subcommittee 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."

That is the form of declaration proposed by Mrs. Justice Denham in her judgment and I agree with it. I also agree with her that

the only other substantive order which should be made is an order of certiorari quashing the directions to the applicants

requiring them to attend before the Abbeylara Subcommittee there to give evidence and to produce documents in their

possession. Having regard to the view which I have taken on the inherent power I do not find it necessary to consider the

question of reliefs in relation to any of the other issues raised. I do not consider that any further declaration or order is required

either in relation to the appeals or the cross-appeals.

In summary I would not, therefore, allow the appeal but would modify the form of the first declaration granted by the Divisional

Court in the manner outlined.