Thomas v Thomas

In the High Court, counsel on behalf of the plaintiff did not rely solely on the alleged unconstitutionality of the 1970 Act: they also resisted the contempt proceedings on a number of other grounds. In particular, they urged that the proceedings of the Committee were conducted in a manner which violated the constitutional right of the plaintiff to fair procedures, an aspect of the decision which is also relevant to these proceedings and which is considered at a later stage of this judgment. The High Court rejected the challenge to the constitutionality of the 1970 Act and also found against the plaintiff in respect of the grounds on which he had resisted the contempt proceedings.

The plaintiff having appealed to this court, the court, in their judgments, considered first the question as to whether the 1970 Act was invalid having regard to the provisions of the Constitution. The judgment of the court, which was delivered by O’Dalaigh CJ, concluded that s.3(4) of the 1970 Act - which provided the machinery under which the chairman had purported to certify that the plaintiff had committed an offence - was invalid having regard to Article 38 of the Constitution.

The court went on to consider the other grounds of appeal which raised questions independent of the constitutionality of the 1970 Act. Judgments on these issues were delivered by O’Dalaigh CJ and Fitzgerald and McLoughlin JJ, Walsh and Budd JJ agreeing with O’Dalaigh CJ.

Counsel for the plaintiff is recorded as having submitted that

In his judgment, O’Dalaigh CJ referred to Standing Order 127 which defined the powers of the Committee of Public Accounts

He concluded that the examination of the expenditures of monies belonging to the Irish Red Cross Society, not being monies granted by the Dáil to meet the public expenditure, was not a matter which, as such, fell within the jurisdiction of the Committee of Public Accounts.

It is, accordingly, correct to say that, so far as the non-constitutional issues were concerned, no submission was advanced on behalf of the plaintiff in that case to the effect that a committee of the Oireachtas had no inherent power to conduct a fact finding inquiry the conclusions of which might adversely affect the good name or reputation of a person who was not a member of the Oireachtas. This was the case, although counsel for the plaintiff, in his submissions, expressly relied on the guarantee under Article 40.3.2° of the citizen’s good name in advancing the submission that the procedures adopted were not in accordance with the Constitution.

If the submissions advanced on behalf of the respondents in the present case are well founded, the failure by counsel for the plaintiff in that case to rely in any way on this point is, at first sight, inexplicable. The suggestion put forward by the divisional court, admittedly somewhat tentatively, that it may have been because the inquiry in that case was being carried out with the specific statutory powers “pertinent to that inquiry” is, with respect, clearly wrong. The inquiry in the present case is also being carried out with specific statutory powers. What is common to both the 1970 Act and the 1997 Act is that, while they confer specific powers, they at no point authorised the inquiry in issue.

In the course of the oral arguments in this court, a different reason was advanced, i.e., that the failure to raise the point may have been because of a “tactical” reason. This was that the result of a finding by the High Court or this court that the Oireachtas had no power to order such an inquiry might have been the establishment of a tribunal presided over by a judge. In the context of the present case, the suggestion that the plaintiff’s legal advisors in In re Haughey considered that his constitutional and legal rights would be more adequately protected by the Committee of Public Accounts than by a tribunal presided over by a judge is somewhat surprising. However, the suggestion that this might have been the reason for not advancing the submission in In re Haughey is also clearly wrong: the arguments successfully relied on could have had precisely the same effect, since the response of the Oireachtas, in that case as in the present, could have been to authorise the establishment of a tribunal of inquiry.

The conclusion is irresistible that Mr. Thomas Conolly SC., the foremost constitutional lawyer of his generation, was either unaware of a point which, on the respondents’ arguments, should have been obvious from a reading of the provisions of the Constitution dealing with the Oireachtas, or else thought it was of such little merit as to be not worth advancing. If incomprehension on his part was the reason, it was a lack of understanding which must presumably have been shared by his colleagues in the case, Mr. Anthony Hederman SC and Mr. Patrick Connolly, both of whom went on to hold the office of attorney general, and one of whom became a judge of this court.

The difficulties do not end there. If the respondents are correct, this point of fundamental importance was not only entirely overlooked by Mr. Conolly and his colleagues, but was, at the least, not considered as meriting even a passing reference by any of the eight judges in the High Court and the Supreme Court, who included two former holders of the office of attorney general and two judges whose role in the development of Irish constitutional law needs no elaboration, Walsh J and Henchy J. It is not as if the court was not concerned with the legal basis of the inquiry: the resolutions which purported to establish it were subjected to a detailed examination by counsel, the High Court and the Supreme Court in order to ascertain whether the inquiry being conducted by the Committee was authorised by law.

And that is not all. In the course of that part of the judgment which dealt with the constitutional issue, O’Dalaigh CJ in delivering the judgment of the court expressly drew attention to the precise constitutional nature of the functions being discharged by the Committee. Addressing the argument that the Committee had effectively been empowered to try a criminal offence, he said

He went on to uphold the conclusion of the High Court that the power of the chairman to certify that an offence had been committed was not constitutionally invalid. He concluded, however, that the procedure laid down for a trial of the offence in question in the High Court was constitutionally infirm in not providing for a trial by jury.

One has to assume that, if the respondents are correct, while the learned Chief Justice was expressly addressing the constitutional inhibitions on the powers of such committees, and, specifically, their power to conduct a trial of a criminal issue, he was either unaware of, or indifferent to, the fact that the inquiry which the committee in that case were engaged in was unconstitutional from beginning to end.

I do not find it in the least surprising that Costello J in Goodman -v- Hamilton , dismissed that view of the decision in In Re Haughey and regarded it as supporting the proposition that the Oireachtas enjoyed an inherent power to initiate inquiries of that nature whether by a tribunal or an Oireachtas Committee. His view of the effect of that decision was part of the reasoning by which he reached his conclusion that the tribunal of inquiry under consideration in that case had been validly established. On one view, it was accordingly part of the ratio of the decision which was upheld on appeal and is binding on this court. However, even if his view that the Oireachtas enjoyed an inherent power to establish a committee to conduct an inquiry which reflected on the good name of a citizen but did not involve any adjudication of civil or criminal liability was obiter , in the context of that case, that does not mean that it was wrong. As it happens, it was the considered view of a judge who had not merely held the office of attorney general but brought to it a wealth of parliamentary experience unrivalled by any of his predecessors.

I am satisfied that the Irish authorities lend overwhelming support to the submissions advanced on behalf of the Attorney General and the Committee.

I turn finally to the authorities in England and the United States.

Of the former, the first is Howard -v- Gossett , a decision of the Court of Queen’s Bench dating from 1845. The plaintiff had been arrested by the serjeant-at-arms of the House of Commons, having failed to attend when required to do so for the purpose of being examined at the Bar of the House. The plaintiff’s case succeeded, because of defects in the form of the warrant, but as to the inherent jurisdiction of the House to conduct an inquiry, Lord Denman CJ had this to say:

Counsel for the respondents relied on that authority in support of the proposition that no such inherent power exists in the Oireachtas and I shall return to it at a later stage. Two earlier authorities were also relied on by them, of which the first is Beaumont -v- Barrett , which was decided by the Privy Council in 1836. The issue in that case was whether the House of Assembly in Jamaica had power to commit to prison a person who was alleged to have published material which was a breach of the privileges of the House. It was held that it had. However, in Kielley -v- Carson , decided in 1842, the Privy Council overruled their earlier decision because, as they held, the inherent power of the imperial parliament derived from the particular character of the House of Commons as being part of the High Court of Parliament. That inherent power, justified, as it was said, by the lex et consuetudo parliamenti was not enjoyed by any inferior assembly, such as that in Jamaica, simply because it had the power to legislate for that particular territory.

These latter authorities were, somewhat surprisingly, relied on in support of the proposition that the Oireachtas of the Irish Free State enjoyed no inherent power to hold inquiries. I describe this as surprising because, elsewhere in their submissions counsel relied strongly on what they correctly described as the radical and innovative nature of the 1922 Constitution in the context of British constitutional theory. One of its distinctive features is vividly described by Kohn as follows.

Authorities such as Kielley -v- Carson , accordingly, dealing as they do with inferior colonial assemblies, lend no support to the proposition that the Oireachtas of the Irish Free State was incapable of enjoying such powers, unless the imperial parliament at Westminster in its wisdom decided to confer them on the Oireachtas.

Finally, there are the United States decisions of which the first is Anderson -v- Dunne where it was held that the House of Representatives had power to attach and punish a person other than a member for contempt of its authority - in that case an attempt to bribe one of its members - although no such power was expressly conferred by the Constitution. It was followed by Kilbourn -v- Thompson where the question was whether the House of Representatives had exceeded its powers in directing one of its committees to make a particular investigation: the decision was that it had. In considering whether the House of Representatives had power to punish for a contempt of its authority, Miller J, giving the opinion the court, said that

He went on to reject the proposition that the right of the House of Representatives to punish for contempt, if it existed, could derive any support from the precedents and practices of the two Houses of the English Parliament. In the instant case, the House of Representatives had purported to establish a special committee to inquire into the affairs of a company which had become bankrupt and in which public monies had been deposited. The court concluded that

The case was relied on subsequently in support of the proposition that neither House of Congress had power to make inquiries and summon witnesses “in aid of contemplated legislation”. However, in McGrain -v- Doherty , the Supreme Court, while acknowledging that there were expressions in the opinion of Miller J which might bear such an interpretation, declined to treat it as a definitive authority for such a proposition. In that case Van de Vanter J, giving the opinion of the court said

Finally, there is Watkins -v- United States . In that case a person had been convicted of a violation of a statute which made it a misdemeanour for any person summoned as a witness by either House of Congress or any committee thereof to refuse to answer any question “pertinent to the question under inquiry”. The petitioner was summoned to testify before a sub-committee of the House of Representatives Committee on Un-American Activities and refused to answer questions as to whether he had known certain other persons to have been members of the Communist party, on the ground that these questions were outside the proper scope of the committee’s activities and not relevant to its work.

The Supreme Court, while holding that the petitioner had not been afforded a fair opportunity to determine whether he was within his rights in refusing to answer and that the conviction was accordingly invalid under the due process clause of the Fifth Amendment, made some important general observations on the power of Congress to conduct inquiries. Warren CJ, giving the opinion of the court, said

Substituting “Oireachtas” for “Congress” and “the executive” for “the Federal Government”, I would unhesitatingly adopt that paragraph as a statement of the law in this jurisdiction.

Counsel for the respondents argued that this passage was not of any assistance to the appellants in this case, having regard to the following statement in the judgment of the court in Haughey -v- Moriarty :

The court, at that point in its judgment, was solely concerned with the question as to whether the fact that the inquiries under consideration might lead to no recommendations for legislation had as its necessary consequence that the inquiry was ultra vires the 1921 Act. The court was doing no more than drawing attention to the fact that, to the extent that the American authorities supported the proposition that the power to inquire could only be used in aid of the legislative function, the power was necessarily more limited than under our Constitution, since, in sharp contrast to the position under the Irish Constitution, the executive in the United States is not answerable to the Congress.

Counsel for the Respondents sought to distinguish this powerful current of authority in the US Supreme Court on two grounds. First, they argued that, as in England, the cases proceeded on the basis that the power to inquire which was inherent in the legislative process could not exist without the consequential power to secure the attendance of witnesses and the production of documentary evidence. Since that consequential power was not inherent in, or expressly conferred, on the Oireachtas, they urged, the power of inquiry to which it was consequential could not exist either.

The divisional court was impressed by this argument: I have to say, with respect, that I find it bafflingly illogical. If the power to inquire is pointless and meaningless without the consequential power (and it is highly debatable whether that is so [5] ), the consequence should be either a finding by the courts that it exists as a necessary consequence of the inherent power (as in England and the United States) or the enactment of legislation conferring it (as in Ireland). To treat it as a ground for supposing that the bare power to inquire does not exist in the first place is, to put it mildly, mystifying.

The second ground on which they sought to distinguish the United decisions was that the jurisprudence of the Supreme Court adhered more closely to English constitutional precedents than could ever be the case in this country.

That proposition seems entirely at odds with the unequivocal statement of Miller J in Kilbourne that the power found its origins in the Constitution of the United States and nowhere else. Far from there having been any subsequent disapproval of that aspect of the decision in Thompson , as was somewhat faintly suggested, the later decisions, most notably Watkins , are even more emphatic that the power exists because it is a necessary feature of the legislative process established by the Constitution. There is not a scintilla of justification, in my view, for the proposition that it has been clung to in the United States jurisprudence as one of what Professor Gwynn Morgan (in a different context, it has to be pointed out) has described as “the eccentric relics” of the British Constitution.

In any event, I am bound to say that I find the historical argument - that this represents some form of filial attachment to British constitutional practice which we have long since abandoned - less than convincing. It is based, in part at least, on the judgment of Kingsmill Moore J (sitting as a High Court judge) in In re Irish Employers Mutual Insurance Association [1955] IR 176 and of O’Dalaigh J (as he then was) in Melling -v- O’Mathghamhna [1962] IR 1. In the first case, which foreshadowed the subsequent decision of this court in Byrne -v Ireland [1972] IR 241, the learned judge was concerned with a specific issue, i.e., as to whether the royal prerogative had survived the enactment of the Constitution so as to preserve the supposed priority of debts due to the State in insolvency proceedings. In the course of his judgment, he referred to the passing of the British North America Act 1867 dealing with the future government of Canada and said

In the second case, O’Dalaigh J, in considering whether a particular criminal procedure had survived the enactment of the 1922 Constitution, said:

Even if one leaves out of the equation the eminence of the two judges who arrived at those decisions, they would evoke no dissent today and have indeed been frequently followed and applied. However, one does not necessarily have to accept the historical excursus of O’Dalaigh CJ with the same enthusiasm. I would have thought that the measured cadences in which the rebellious American offspring bade farewell to the motherland lost at least some of their resonance during the bloody War of Independence and can hardly have been of much comfort when the British sacked Washington during the war of 1812.

However, what was of far more significance in the constitutional history of the United States was the complete and surgical severance from the motherland reflected in the Constitution. In stark contrast to what happened in Ireland in 1922, every single link with the empire was broken and a republican form of government established with an elected president as head of state and chief executive. Radical and innovative the Irish Free State Constitution certainly was, as Kohn recognised, but it is seriously to misread history to suppose that its framers intended, however desirable they thought this in at least some areas, to sever all their links with the empire.

That they agreed, although only with the greatest reluctance to such features of the 1922 settlement as the Oath of Allegiance, the institution of the governor general, the retention of the appeal to the Privy Council and the ambiguous position of the new State in relation to its own defence and foreign policy, is a matter of history. (The same could be said, although in an indirect fashion, of their acceptance of the exclusion of Northern Ireland from the new dispensation based in part on the misplaced optimism with which they regarded the establishment of the Boundary Commission.) It is also the fact that they took the opportunity while adopting the Westminster model of introducing some interesting innovations in that area, such as the role of “external” ministers and the “initiative” process, both effectively abandoned in 1937.

However, far from abandoning the Westminster parliamentary system in its entirety, they seemed happy to perpetuate most of its features in the new political order they were establishing, doubtless because, as Kingsmill Moore J pointed out, they were worthy of adoption rather than because they were British, an approach in many ways reminiscent of that of the American founding fathers.

The only direct evidence put forward by in support of the submission that there was a conscious abandonment of the committee system in 1922 is the fact that, as pointed out by Professor Farrell in his valuable series of articles in the Irish Jurist, a draft prepared by James Murnaghan SC (later a member of the High Court and Supreme Court) and Alfred O’Rahilly expressly empowered the Oireachtas to establish committees of inquiry. But the fact that this was rejected is a remarkably slender basis for attributing to the framers of the Constitution an intention to jettison the committee system in its entirety, particularly when one bears in mind that less than two years after the enactment of the Constitution they put in place provisions to enable witnesses to give evidence on oath before such committees. The Murnaghan/O’Rahilly draft, was in any event, to put it no more strongly, a somewhat idiosyncratic document (although some of its proposals were adopted by De Valera in 1937) and, as Professor Farrell makes clear, there were many factors at work in the somewhat fraught process with led to the ultimate emergence of the Constitution as enacted. [6]

Ultimately, of course, the English and United States decisions can be of no more than persuasive force, but they confirm that, in the case of the two states whose parliamentary and legal systems have had by far the greatest influence on ours, it has repeatedly been made clear that their legislators enjoy the inherent power to initiate inquiries of which our legislature is said to be bereft.

I am satisfied that the conclusion of the divisional court that there was no inherent power to hold inquiries of this nature, subject to the limitations accepted by the Attorney General, was wrong in principle, and irreconcilable with the decisions of this court in In Re Haughey, Goodman -v- Hamilton and Haughey -v- Moriarty . I am fortified in arriving at that conclusion by the decisions of the United States Supreme Court to which I have referred and I am satisfied that no guidance whatever is to be gained from the denial by the English courts of analogous powers as inhering in what they regarded as inferior legislative assemblies throughout the then British empire. If I entertained any doubts on this issue, which I do not, they would be entirely allayed by the history of parliamentary select committees in this jurisdiction since 1922, and, in particular, by the tacit acceptance by this court of the existence of the inherent power in In Re Haughey .

There remains the argument which the divisional court did not find it necessary to address but which was relied on in the notice to vary in this case and was also the subject of written and oral submissions, i.e., that the inherent power to inquire in question is constitutionally impermissible because of what is described as “structural bias” on the part of the members of such a committee.

It is important to distinguish this argument from an entirely separate argument which I will consider at a later stage and which related to what is alleged to be “objective bias” on the part of specified members of the committee in this case and, in particular, the Chairman and Deputies Howlin, McGuinness and Shatter. It was said that comments they had made to the media and interventions by them during the hearings of the committee demonstrated that they had already come to conclusions on the matters which the committee had to consider and that, in the mind of a reasonable person, this could legitimately lead to an apprehension that they were approaching the matters within their remit in a manner vitiated by bias.

The submission I am now considering is that, even members of the Oireachtas who sat on such a committee who demonstrated no partiality and whose participation could not be impeached because of objective bias (stemming, for example, from some interest, financial or otherwise, that they might have in the outcome of the committee’s deliberations) were disqualified from so acting. It is said that, since as legislators they owe a duty to represent their constituents, they are constitutionally incapable of approaching the resolution of issues such as this with the appropriate detachment.

I see no reason why Dáil deputies and senators should not approach their participation in committees of this nature with minds unclouded by pressures from their constituents or, for that matter, from the political parties which they represent. No doubt, there may be occasions when a deputy or senator should, at the least, inform his or her colleagues of matters which he or she has learned during his/her constituency work and which, in the result, might make it difficult for him or her to approach the committee’s deliberations with the requisite detachment or, at the very least, with the necessary appearance of detachment. In a different sphere, judges find themselves confronted with the same problem from time to time and it has never been suggested, nor could it be suggested, that that, of itself and without more, prevents them from, in general, discharging their constitutional duties fairly and impartially.

Such an argument, indeed, gives little, if any, weight to the respect for the other organs of government which, as has been repeatedly emphasised, is an essential feature of the separation of powers enshrined in the Constitution. Manifestly our legislators frequently disappoint the expectations which the voters place in them and have on occasions abused the trust which is vested in them. But, viewing the matter from the perspective of principle, I see no reason to deny them the benefit of the presumption established in cases such as East Donegal Co-operative -v- Attorney General [1970] IR 317 that they will conduct their proceedings in accordance with the requirements of natural and constitutional justice, even though we are concerned here with an inherent power rather than one expressly conferred by an Act of the Oireachtas. In any event, as was authoritatively established in In re Haughey , any departure from the requirements of those canons will be restrained and corrected by the courts where that is necessary to protect and vindicate the rights of the citizen.

I should finally observe that it would indeed be strange if the legislators were constitutionally debarred because of what is claimed to be “structural bias” from embarking on such an inquiry when the Constitution itself empowers them, not merely to initiate an inquiry, but to adjudicate (using that expression in its proper sense) in two of the most solemn cases imaginable: the impeachment of the President under Article 12 and the removal of judges of the Superior Courts from office under Article 35.4. Counsel for the respondents did not shrink from the proposition that, even when engaged on those momentous functions, the Constitution envisaged that the legislators would yield to the wishes of their constituents or answer the dictates of the party whips. I see no reason whatever to attribute to the framers of the Constitution an acceptance that, in carrying out the impeachment process either in the case of the President or of judges, legislators could or would be legitimately swayed by wholly extraneous and irrelevant factors.

I should add that, while some reference was made during the course of the arguments to Order 58 of the Dáil Standing Orders prohibiting the making of “an utterance in the nature of being defamatory” and providing that it “may be prima facie an abuse of privilege”, I am satisfied that it has no relevance to the issue under consideration. If the Houses of the Oireachtas enjoy an inherent power to authorise the holding of fact finding inquiries by committees, the findings of which may reflect on the good name of citizens, that inherent power could not be removed by the adoption of a standing order nor does the order in question purport to do anything of the kind. The fact that the Oireachtas has chosen, by its standing orders, to ensure, so far as it can, that members of the Oireachtas do not abuse the far reaching privileges conferred on them by Article 15.13 of the Constitution is of no relevance to the issue as to whether the Oireachtas has power to authorise inquiries of the nature under consideration in these proceedings.

As to the form of declaration which Denham J, in the judgment which she will deliver this morning, proposes should be substituted for the declaration granted in the High Court, it is unnecessary for me to express any opinion, having regard to the view that I take as to the existence of the inherent power relied on by the appellants.

I would make some final observations on this issue. The choice as to which is the more suitable machinery for conducting an inquiry into a matter of public importance - an Oireachtas Committee or a tribunal of inquiry - in many cases presents no difficulties. Allegations of misconduct by elected politicians have invariably been the subject of inquiries by tribunals since the foundation of the State, for the reasons which led to the abandonment of the select committee form of inquiry in such cases in the post-Marconi era and the enactment of the 1921 Act. Nor could an Oireachtas committee conceivably represent an appropriate machinery for investigating disasters such as Whiddy and Artane. There are also other forms of inquiry which would inevitably involve the taking of so much evidence as to render an inquiry by an Oireachtas Committee seriously impracticable. In addition, an inquiry which was exclusively directed to establishing whether a particular person or persons had committed criminal acts might well be unsuitable for an Oireachtas Committee or, for that matter, a tribunal to undertake since, apart from any other considerations, any public interest it might serve could be outweighed by the possibility of subsequent criminal proceedings being prejudiced.

There remain cases in which investigation by an Oireachtas committee may be perfectly appropriate and in which it will inevitably have to find facts, if its conclusions are to be of any value, and where, in the result, the reputations of individuals may be affected. It may be that, in some of those cases, meticulous adherence to the requirements of natural justice, which has been insisted on by the courts since in In re Haughey, would mean that inquiry by committee would be as expensive and cumbersome as an inquiry by a tribunal.

However, it would be unwise to assume that observance of the requirements of natural justice is the only factor which leads to inquiry by tribunal being in some cases a more protracted and expensive form of procedure than other forms of inquiry, whether by an Oireachtas committee or some other machinery. Everyone who has participated as a lawyer or judge in such tribunals knows that, with the best will in the world, those engaged at a professional level find it difficult to abandon an approach which is appropriate in adversarial litigation but unsatisfactory in what is essentially an inquisitorial procedure. The courts have also had ample experience of the significant delays which occur in the conduct of such inquiries while the judicial review process pursues its sometimes painfully slow and expensive course through the legal system. While this has sometimes been the inevitable consequence of the requirement to observe natural justice, that has not always been the case.

The choice between the various methods of inquiry is not one which should be made by the judicial arm of government. The consequences are glaringly apparent in the emasculation, which will be the result of this decision, of the operations of the Committee of Public Accounts. The historic function of the legislature in the control of supply, particularly in a period of massive public expenditure, is one of critical importance, although it may not involve any exercise by either house of its legislative functions. To eliminate any possibility of a fact finding inquiry by parliament in that area, because the findings may of necessity attribute responsibility to individuals in the public service, is a step which must give rise to serious misgivings. The result is a disquieting, and I would hope unique, assumption of a decision in the area of policy which should be quintessentially that of parliament itself.

I am satisfied that, in the result, the challenge to the inherent power of the Oireachtas to establish such committees, subject to the limitations accepted by the Attorney General, fails.

As already noted, the divisional court granted declarations sought by the applicants that

In addition, the divisional court granted an order of certiorari quashing the resolution of the 12th April 2001 whereby the Committee purported to extend the terms of reference of the Committee and whereby the Committee was purportedly empowered, if it considered it necessary to do so, to hear evidence in accordance with the provisions of the 1997 Act and to report to the Joint Committee thereon and to include its findings and conclusions and recommendations, if any.

In the High Court and again in this court, the Committee challenged the jurisdiction of the High Court to grant relief of this nature on the ground that it dealt with matters which related exclusively to the functions of the Houses of the Oireachtas and, under the Constitution, were not justiciable by the courts.

It should be noted that it was not submitted on behalf of the Committee, either in the High Court or in this court that the claim as to non justiciablity extended to the compliance or otherwise of the Committee and the Compellability Committee with the provisions of the 1997 Act. It was also accepted that the High Court was entitled to examine the procedures undertaken by the committee with a view to ascertaining whether they complied with the requirements of natural justice and fair procedures, a concession inevitably made in the light of the decision of this court in In re Haughey .

Having considered the relevant provisions of the Constitution and a number of authorities in this jurisdiction and in the United States, the divisional court came to the following conclusions:

The divisional court accordingly concluded that all of the complaints made by the respondents were justiciable and could be the subject of examination by the court.

In the High Court, the claim of the Committee that these matters were not justiciable was supported to a limited extent by the Attorney General. As already noted, his appeal to this court was confined to the issue of the inherent power of the Committee to conduct the inquiry. The Committee have, however, appealed against the findings of the divisional court in relation to all these matters.

On behalf of the Committee, it was submitted that the divisional court had erred in supposing that the principle which rendered immune from scrutiny by the courts the internal procedures of the Oireachtas was confined to the exercise by it of its legislative powers or, alternatively, had no application when parliament was purporting to deal with citizens other than its own members. It was argued that such citizens who were affected by statements or decisions made concerning him/her by the Oireachtas was not without means redress: his remedy, however, lay through the political process rather than in the courts. They cited in support of this argument the decision of Costello J in O’Reilly -v- Limerick Corporation [1989] ILRM 181 and observations of Hardiman J in this court in Sinnott-v- Minister for Education and Science and Ors : (Unreported; judgment delivered 12th July 2001).

It was further submitted that the divisional court were mistaken in treating In re Haughey as an authority on the issue as to whether the proceedings which were sought to be impugned in this case were justiciable, and that their approach to that case was inconsistent with their view that it was not an authority on the question of the inherent power, since that issue had not been raised or debated in the case. It was suggested that the same could be said of the issue of non-justiciability.

It was further submitted that, although it had been indicated in Goodman -v- Hamilton and Haughey -v- Moriarty , that a resolution of either House could be reviewed in the Courts on the grounds of impropriety or as constituting an abuse of power, such considerations did not arise in this case.

It was also submitted that the US decisions referred to in the judgment of the divisional court, and in particular that of the Supreme Court in Watkins , were explicable because they raised questions of fair procedures affecting citizens which would unquestionably be unjusticiable in this jurisdiction also. They also cited in support of their submissions the judgment of Geoghegan J at first instance in Haughey -v- Moriarty in which he declined to admit evidence directed to showing that there was an irregularity in the convening of the Seanad for the purposes of the resolution under scrutiny in that case, as it seemed to him that it was not a justiciable matter. They also cited the decisions of this court in Slattery -v- An Taoiseach [1993] 1 IR 286, O’Malley -v- An Ceann Comhairle [1997] 1 IR 427 and Wireless Dealers Association -v- Fair Trade Commission (Unreported; judgment delivered 14th March 1956) and of the High Court of the Irish Free State in O’Cruadhlaocih -v- Minister for Finance [1934] 68 ILTR 174.

Counsel on behalf of the respondents submitted that the doctrine contended for by the Committee was expressly reflected in Article 9 of the Bill of Rights 1689, which was consistent with the sovereignty of parliament under the unwritten British Constitution. That provision, however, was not now and never had been part of Irish law: the privileges of the Oireachtas are as defined in Articles 15.10, 15.12 and 15.13 and give no support to the claim advanced by the Committee. They cited the observations of Walsh J in Byrne -v- Ireland to the effect that there was no power, institution or person in the land free of the law, save where such immunity was expressed, or provided for, in the Constitution itself.

They further submitted that decisions such as O’Malley -v- An Ceann Comhairle were explicable as dealing solely with the internal processes of the Oireachtas which did not affect citizens who were not members. It was further submitted that where, as here, a dispute arises as to whether procedures affecting the rights of citizens who are not members of the Oireachtas have been observed, it is only the courts which can conclusively decide that issue, citing observations of Walsh J in Crotty -v- Ireland [1987] IR 713 at p.778.

Decisions such as Sinnott -v Minister for Education , O’Reilly -v- Minister for Education and T.D. (a minor) -v- Minister for Education and Others (Unreported; judgments delivered 17th December 2001) were distinguishable, since they dealt with the quite different issue as to the role of the courts, if any, in overseeing the application of resources, a matter peculiarly within the policy making role of the executive and the Oireachtas.

They also submitted that the refusal of the High Court in Haughey -v- Moriarty to admit evidence relating to the convening of the Seanad for the purpose of passing the resolutions under scrutiny was also distinguishable: the actions of the legislature, once convened, whether they take the form of legislation or resolutions, are subject to scrutiny by the courts, although not the procedures employed in convening one or both of the Houses.

It was further submitted that the divisional court were entirely correct in holding that re Haughey was a clear authority for the proposition that the Standing Orders of the Dáil could be scrutinised in order to ascertain whether a particular inquiry had been authorised.

Article 15.10 of the Constitution provides that

Article 15.12 provides that

Article 13 provides that

These extensive immunities and privileges, denied to citizens who are not members of the Houses of the Oireachtas, are an important feature of the parliamentary democracy established under the Constitution. Neither these provisions, however, nor any other provision of the Constitution expressly exempt from scrutiny by the courts the actions of the Oireachtas or its individual members save to the extent specified in Article 15.12 and 13.

That is not to say that the courts will accept every invitation to interfere with the conduct by the Oireachtas of its own affairs: such an approach would not be consistent with the separation of powers enjoined by the Constitution. Specifically, the courts have made it clear that they will not intervene in the manner in which the House exercises its jurisdiction under Article 15.10 to make its own rules and standing orders and to ensure freedom of debate where the actions sought to be impugned do not affect the rights of citizens who are not members of the House: see the decision of this court in Slattery -v- An Taoiseach. It was also held by the former Supreme Court in Wireless Dealers’ Association -v- Fair Trade Commission , that the courts could not intervene in the legislative function itself: their powers to find legislation invalid having regard to the provisions of the Constitution arise only after the enactment of legislation by the Oireachtas, save in the case of a reference of a Bill by the President to this court under Article 26. Nor, in general, will the courts assume the role exclusively assigned to the Oireachtas in the raising of taxation and the distribution of public resources, as more recently made clear by this court in T. D. and Others -v- Minister for Education and Science and Others.

That resolutions authorising the establishment by the executive of a tribunal of inquiry invested with the powers specified under the 1921 Act may be scrutinised by the courts and their legal effect conclusively resolved by the courts is clear from the decisions in Goodman -v- Hamilton and Haughey -v- Moriarty . However, it is equally clear, as Geoghegan J found at first instance in the latter case, that the actual process by which parliament is convened for the purpose of passing such resolution is not justiciable.

Different considerations apply, however, where, as here, the Oireachtas purports to establish a Committee empowered to inquire and make findings on matters which may unarguably affect the good name and reputations of citizens who are not members of either House. An examination by the courts of the manner in which such an inquiry is established in no way trespasses on the exclusive role of the Oireachtas in legislation. Nor does it in any way qualify or dilute the exclusive role of the Oireachtas in regulating its own affairs.

Even if there were no authority to guide this court on this issue, I would, accordingly, be satisfied that, as a matter of principle, the divisional court was correct in holding that these issues were justiciable. The matter, is however, put beyond doubt, in my view, by the decision of this court in re Haughey .

As I have already pointed out, in his judgment, O’Dalaigh CJ expressly found that

Such a finding was plainly irreconcilable with any view on the part of the learned Chief Justice that this was not a justiciable issue. Similarly, as the divisional court pointed out, O’Dalaigh CJ, in another part of his judgment, expressed the view that the committee in that case was not legally entitled to an answer to any question which was not relevant to the proceedings and which was not within its terms of reference. Similarly, his judgment considered the powers granted to the Committee of Public Accounts under a specific standing order and the validity of what purported to be a certificate of the committee having regard to its terms of reference. I have no doubt that the divisional court were correct in holding that the decision in re Haughey conclusively disposes of the claim made on behalf of the committee in the present case that, subject to the qualifications already referred to, the issues raised in these proceedings were not justiciable.

The respondents claim that the proceedings of the Committee in general, and the directions purportedly issued to the respondents on foot of the 1997 Act in particular, were ultra vires the powers of the committee, even assuming that it enjoyed the power to conduct an inquiry of this nature in the first place. Their grounds for that claim can be summarised as follows.

First, they say that the order purportedly establishing the committee did no more than require it to consider the report by the Commissioner of the Garda Síochána and submissions received thereon and to report to the Joint Committee thereon. Their application to the Compellability Committee, however, it was said, treated their remit as having been extended so that they were now empowered

In addition, two amendments were purportedly made by the Joint Committee to their order establishing the Committee. The first - that on April 12th - purportedly amended the original order by empowering the Committee

This purportedly replaced an earlier amendment of the 10th April which had given the Committee power, if it considered it necessary to do so, to hear evidence in accordance with the provisions of the 1997 Act.

The second amendment on the 26th April purported to cure a defect in the order establishing the Committee by substituting references to the appropriate sub-paragraphs in the relevant Orders of Reference, i.e. (vi) in the case of the Dáil and (v) in the case of the Seanad..

In addition, it is claimed that there was no consent in writing of the Compellability Committee at the time the directions were purportedly issued to the respondents and that the existence of such a consent in writing was, under the terms of the Act, a precondition to the exercise by the Committee of the power to issue directions. It was further claimed that, in its written submission to the Compellability Committee, the Committee had misrepresented the position as to its powers, since it referred to the Order establishing the Committee in terms of the amendment subsequently passed on April 12th. Finally, it was said, that the consent itself was also defective in failing to specify, as required by the 1997 Act, the specific functions of the Committee to which the consent was to relate.

In its judgment, the divisional court found that the task of the Committee, as defined by the Joint Committee, was to consider the report and submissions received thereon and to report back. It had, however, of its own motion enlarged this into an inquiry into the Abbeylara incident itself. This, the court held, the Committee was not entitled to do. As they put it,

As to the consent, the court held that, since the existence of a consent in writing was, under the terms of the 1997 Act, an essential precondition to the issuing by the Committee of directions to the respondents, the fact that there was no consent in writing in existence at the time the directions were issued was fatal to their validity. The divisional court also found that the purported consent in writing dated the 30th April was, in any event, defective, since it did not specify the functions of the committee to which it related as required by the 1997 Act. The committee also found that the application to the Compellability Committee was defective in that it represented to the Committee that it enjoyed powers which in fact were not conferred on it until the amendment of the following day,

On behalf of the Committee, Mr. Ryan submitted that, in considering whether the committee had unilaterally and unlawfully extended their terms of reference, the precise sequence of events was of importance. They had been asked by the Joint Committee to consider, not merely the report of the Commissioner, but also any submissions they received relating thereto and, on the 4th April, resolutions had been passed by both Houses of the Oireachtas giving the Committee power to send for persons, papers and records. The Committee were, accordingly, clearly and unambiguously empowered, not merely to report to the Joint Committee on the Commissioner’s report, but to conduct an inquiry into the events which had given rise to it and the submissions which the Committee had received. He said that the object of the application to the Compellability Committee, supported by the documentation in relation to these matters, was in order to enable the Committee, not merely to conduct the inquiry - that they were already empowered to do - but to obtain the consent of the Compellability Committee to the exercise by them of the powers of compulsion conferred by the 1997 Act. All of that had been made clear to the respondents in the letter from the chairman of the Committee conveying the direction to each of the respondents to attend the hearing on Tuesday 24th April and enclosing the interim report of the Joint Committee, the rules and guidelines for committees and the memorandum of procedure and the conduct of proceedings drawn up by the Committee. There could have been no doubt in the minds of the respondents, he said, as to the nature of the inquiry which was being undertaken when the public hearings began on the 24th April and that was indeed demonstrated by the objection raised by counsel on their behalf as to the nature of the inquiry being undertaken.

As to the consent in writing by the Compellability Committee, Mr. Ryan submitted that there was nothing in the wording of the relevant provisions of the 1997 Act to suggest that the consent had to exist in written form prior to the issuing of directions. The requirement that its existence be evidenced in writing in a document signed by the chairman of the Committee was no more than an evidential requirement: the actual giving of the consent was effected by the Compellability Committee at their meeting.

He further submitted that, contrary to what had been found by the divisional court, the consent in writing did specify the function of the committee to which it related, i.e., the holding of an inquiry into the Abbeylara incident. He further submitted that the committee, in its application to the Compellability Committee for the consent, had not in any significant manner misstated the terms of reference of the sub-committee.

On behalf of the respondents, Mr. John Rogers SC submitted that the resolutions from Dáil and Seanad Éireann of October 25th did not authorise any inquiry at all: they merely referred the report of the Commissioner to the Joint Committee. The resolutions of the Dáil and Seanad of April 4th giving the Committee the power to send for persons, papers and records were made, he pointed out, before a series of further amendments to the Order, including the amendment of April 10th allowing the sub-committee to hear evidence in accordance with the provisions of the 1997 Act and to make findings. He also submitted that an analysis of the e-mails which had been exchanged between the officials of the Oireachtas showed that they had wrongfully given the impression that a consent in writing existed at a particular time and, although this had been denied on affidavit by the chairman of the committee, he had subsequently withdrawn that denial in a further affidavit on the 23rd July 2001, i.e., after the hearing before the divisional court had commenced.

As to the jurisdiction of the Committee to conduct the inquiry, insofar as it existed at all, he submitted that it could derive only from the resolutions of the Dáil and Seanad dated the 25th October. They, however, did no more than refer the Garda Commissioner’s report to the Joint Committee. Those resolutions, if they were to provide the appropriate jurisdictional basis for the subsequent proceedings of the Committee, would have had to define the scope of the inquiry and accord the persons who were being summoned before the Committee the right to determine what questions might be lawfully be asked of them, and the extent to which, if at all, the inquiry might result in their being the subject of adverse comments or findings. He cited in this context the opinions of the United States Supreme Court in Watkins -v- United States .

As to the absence of the consent in writing, Mr. Rogers submitted that the wording of s.3(9)(a) of the 1997 Act was unambiguous in requiring the consent to be in writing and the document containing it to be signed by the chairman of the committee. This had not been met in the case of the consent in these proceedings. He also submitted that the Committee, in their application to the Compellability Committee had clearly misstated the extent of their powers as they existed at that date and the divisional court were correct in so holding. He also submitted that the consent originally furnished was defective in not complying with the precise wording of s.3(9)(b) in specifying the functions of the Committee to which it related.

It is clear beyond argument that there was a series of errors in the drafting of the various orders and resolutions and the amendments thereto relating to the establishment of the Committee, the setting out of its functions and terms of reference and the application to the Compellability Committee for their consent to the giving of directions to the respondents.

Officials of the Oireachtas are not, however, alone in being fallible mortals. The courts have long recognised that similar errors occur almost on a daily basis in the conduct of both civil and criminal proceedings and that mistakes are not the monopoly of any one section concerned in the judicial process: judges, counsel, solicitors and court officials, all alike, can contribute their quota of errors. It is partly for that reason that courts have traditionally enjoyed extensive powers to amend pleadings and, in exercising that power of amendment, judges have placed in the forefront of their approach the importance of seeing that justice is done.

In saying that, I would not like to be taken as being in any sense critical of counsel for the respondents for carrying out his professional task of analysing and relying on the various defects which have come to light in the proceedings in the Oireachtas in this case. Nor would I be in any way critical of the divisional court for conducting a careful and detailed review of the manner in which the inquiry came into being. Having correctly concluded that these were justiciable issues, they could not avoid carrying out such a review.

I would also reject any suggestion that the courts, in conducting such an inquiry, should overlook or dismiss as irrelevant procedural defects of this nature. Moreover, since we are not concerned here with the exercise of the judicial power of the State, a failure to comply with the appropriate procedures cannot be excused on the ground that an over-meticulous adherence to procedural requirements could defeat the ends of justice.

I would also readily accept the submission on behalf of the respondents that they could not lawfully be compelled to attend hearings of the committee, answer questions put to them and expose themselves to the rigour of the criminal law in the event of their non-compliance, where the scope of the inquiry was not clearly laid down in the resolutions of the Oireachtas which brought it about. As Warren CJ said in Watkins -v- United States :

It is, however, illuminating to compare the subject matter of that case with what has happened here. Its subject was, of course, the notorious Un-American Activities Committee whose authority was defined by resolution in 1938 as follows:

It is hardly surprising that Warren CJ said that it would be difficult to imagine a less explicit authorising resolution. He also pointed out that

Let us compare that with what has happened in this case. Both Houses of the Oireachtas passed resolutions referring the report of the Garda Commissioner to the Joint Committee. That committee then had the power by virtue of paragraph (2)(a)(vi) of the Dáil orders of reference and paragraph 1(a)(v) of the Seanad orders of reference to consider that report and report thereon to both Houses of the Oireachtas. (The errors in the order appointing the Committee, which were corrected on April 26th, could have misled no one.) In turn, the Joint Committee was empowered by Standing Order 78A(5) of Dáil Standing Orders

An identical text is contained on Seanad Standing Order 65 .

In pursuance of that power, the Committee was established

That it was intended that the Committee should hear evidence in accordance with the provisions of the 1997 Act and report to the Joint Committee was made perfectly clear by the resolution of both Houses on the 4th April empowering the Committee, in the historic phrase now enshrined in the 1997 Act, “to send for persons, papers and records” and by the amendment of the 10th April, entitling it to hear evidence in accordance with the 1997 Act and report to the Joint Committee thereon.

The Committee was thus established to inquire into a specific incident, the death of Mr. John Carthy during the course of a Garda operation, and to report its findings to the Joint Committee so that they in turn could report to both Houses of the Oireachtas. Its specific and confined terms of reference could not be in greater contrast to the wide and vague remit given to the Committee on Un-American Activities which was the subject of Watkins -v- United States and whose activities, by the time they came under judicial scrutiny some 20 years later, were, in the view of the Supreme Court, virtually outside the control of Congress.

The Committee had also specified in detail, in their application to the Compellability Committee, the issues which they considered would arise and the witnesses whom they intended to call. That statement of issues and the list of witnesses were also furnished to witnesses, including the respondents. I am satisfied that, by the time the Committee commenced its hearings the respondents and their legal advisors were fully aware of the issues with which the inquiry was proposing to deal and, indeed, from the outset strenuously contested the right of the Committee to conduct the inquiry into those issues.

As to the challenge to the issue of the directions by the Committee on the ground that the consent in writing of the Compellability Committee was not in existence at the date they were given, which was upheld by the divisional court, I agree with the analysis carried out by Murphy J of this matter in his judgment and with the conclusion at which he has arrived. I am also satisfied that, while the application to the Compellability Committee undoubtedly was in error in referring to the order establishing the committee as including the amendment which was not actually effected until 12th April, there is not the slightest reason to suppose that the Compellability Committee would have been misled to any significant degree by this mistake.

I am also satisfied that the consent in writing was not defective, as held by the divisional court in failing to relate to “specified functions” of a particular Committee. The consent was stated to be for the express purpose of permitting the Committee to inquire into the Abbeylara incident and to address such possible conflict of facts as in their opinion arose directly or indirectly from oral or documentary evidence. That, in summary form, was a specific function of the Committee and I am not clear, with respect, how the conclusion was drawn that there was “no reference to the functions of the [Committee]” in the written consent.

I am, accordingly, satisfied that the directions issued by the Committee to the respondents and the proceedings of the Committee, until such time as they were halted by the present proceedings, were not ultra vires the powers of the Oireachtas.

It has already been pointed out that the chairman and two members of the Committee, Deputy Marian McGuinness and Deputy Alan Shatter appeared on television or radio to discuss the inquiry: the chairman, indeed took part in a television discussion on the day the Committee began its hearings. In addition, members of the Committee gave regular briefings to the media.

It is in the nature of politics that its practitioners will participate constantly in discussions in the print or electronic media on the issues of the day. However, even when one makes every allowance for that indisputable fact, one would also expect them to refrain from commenting on sensitive matters upon which they may subsequently, as members of an Oireachtas committee, find themselves reaching opinions and conclusions which may seriously affect the reputations of citizens who are not in any way engaged in the political process. It is unfortunate that, in the case of the present inquiry, some at least of the Committee failed to observe that obvious precaution. That, however, was not the ground on which, in the present case, the divisional court reached the conclusion that fair procedures had not been observed by the Committee. That finding was essentially related to the procedure adopted by the Committee in relation to the cross-examination of witnesses.

Nor, as I understood the submissions advanced on behalf of the respondents, did they contend that the proceedings of the subcommittee were, in the result, fatally affected by the existence of objective bias on the part of some of its members, i.e., circumstances which would give rise to a reasonable apprehension that the respondents would not have a fair hearing from an impartial body. It is to be observed, in this context, that, however inappropriate the conduct of the members in question may be judged to be, they did not go so far as to express concluded opinions on the issues of fact which the committee would be considering. Moreover, while one could understand that the respondents would be concerned by the tone and thrust of some of the interventions by members of the committee, particularly Deputies Howlin and Shatter, during the course of the hearings, it has to be pointed out that litigants, and their legal representatives, may also infer, sometimes entirely erroneously, from interventions made by persons who, unlike the committee, are engaged in quasi judicial hearings - and, one would also have to add that such interventions are not unknown in the case of judges - that a particular conclusion had already been reached.

For those reasons, the respondents did not rely on the existence of objective bias as such: they did, however, undoubtedly urge that, in considering whether fair procedures had been adopted by the committee, the divisional court, and this court, should bear in mind the legitimate concerns of the respondents as to the manner in which at least some of the members of the committee appeared to be approaching their task. It is to those procedures that I now turn.

Section 13 of the 1997 Act provided for the drawing up of rules and the issuing of guidelines relating to the conduct of proceedings, and to the procedure generally, of committees of the Oireachtas and required such committees, so far as reasonably practicable, to conduct their proceedings and perform their functions in accordance with any such rules and guidelines. Such rules and guidelines were adopted by the appropriate sub-committees in 1999 in relation to the proceedings of committees,

That would clearly apply to the Committee in the present case. Rule 2 provided that

In the present case, the Committee issued an memorandum of the procedures it proposed to adopt. Paragraph 10(d) said

Paragraph 10(f) provided that:

Sub-paragraphs (h) and (i) provided as follows:

In the witness schedule furnished to the witnesses, however, the following appeared:

It was also made clear in the schedule of witnesses that the cross-examination would not take place until the ninth day of the hearings, which day would also have to accommodate the closing submissions of the parties. Day 10 was allocated for further evidence and “conclusions”.

The divisional court found that the deferment in general of all cross-examination to the end of the hearing, which was then to be conducted only with leave of the committee, was an impermissible dilution and negation of the guarantees of fair procedures in the conduct of such inquiries identified by this court in In re Haughey. They also said that, even if this inquiry was being conducted by a tribunal presided over by a judge, the erosion of the re Haughey guarantees would not be tolerated and a parliamentary committee could not be in any better position.

On behalf of the Committee, Mr. Clarke said that the divisional court had paid insufficient regard to the fact that in a number of cases the total spectrum of the rights identified in In re Haughey would not necessarily be available to a person simply because he or she is required to give evidence, citing observations by Murphy J in this court in Lawlor -v- Flood [1999] 3 IR 107. Unlike the situation that had arisen in In re Haughey , where a specific charge in relation to the application of public funds had been made by a Garda officer against the plaintiff, no charge in this case was made against any member of the Gardaí. He further submitted that the constitutional right of a person against whom a particular charge was being made to cross-examine the witnesses whose evidence was said to support that charge did not extend to an immediate right to cross-examine the witness after he/she had made his or her statement to the committee. The Committee was entitled to adopt a certain flexibility in its procedures and indeed, if it thought it appropriate, to withhold the right to cross-examine in any case where it was not necessary to protect the good name or reputation of any person.

On behalf of the respondents, Mr. O’Donnell submitted that the procedures adopted by the Committee in the present case were entirely at variance with the approach adopted by this court in In re Haughey. It was a truism of advocacy that the deferment of cross-examination while other witnesses gave evidence afforded significant advantages to the witness concerned. The impact of the cross-examination was necessarily blunted by its being deferred in that manner and, in addition, the witness could well derive an advantage from hearing the evidence of other witnesses before his/her turn for cross-examination arrived. Nor was there any justification for the right which the Committee apparently reserved to itself of denying any cross-examination in the case of particular witnesses.

In that case, as in this case, the violation had not occurred at the time of the proceedings and it may not occur in this case. However, in my view, no citizen whose good name may be affected by the proceedings of a committee of this nature and who is required by legal process to attend and give evidence before it can be constitutionally denied in advance the right to cross-examine those whose evidence might so affect his rights. The Committee, in this case, have not expressly denied to the respondents or their counsel the right to cross-examine witnesses, but they have undoubtedly reserved the right to subject it to drastic constraints which, in my view, are seriously at variance with the nature of the right as identified in re Haughey .

I would accept that it is reasonable for a committee such as this to adopt a certain flexibility in this area and that it may be reasonable not to afford a right of cross examination to a person whose good name or reputation would not appear to be affected by any conclusion the committee might reach on a particular issue. It was, however, in my view, not permissible for the committee to adopt a procedure which meant that cross-examination in respect of crucial matters would be deferred until after other witnesses had given evidence, a practice which would serious erode the value of cross-examination as it has been traditionally understood. Moreover, while the committee might have found themselves, in practice, unable to adhere to the remarkably limited time they were affording counsel for both the next of kin and the respondent to cross-examine and make submissions, the adoption by them of so apparently rigid a time schedule was, again, inconsistent with the constitutional protection which should have been afforded in accordance with In Re Haughey .

I would, accordingly, uphold the finding of the divisional court insofar as it found that the right to fair procedures had not been upheld by the committee.

In the result, I would allow the appeal and substitute for the order of the High Court an order dismissing the respondents’ claims for the various reliefs sought by them by way of judicial review, other than the declaration at paragraph 5 of the order. I would also dismiss the application to vary brought by the respondents.

This is an appeal by the respondents/appellants, hereinafter referred to as the Committee, Alan Shatter, T.D. Ireland and the Attorney General, against a decision and order of a Divisional Court of the High Court (Morris P., and Carroll and Kelly JJ.) delivered on the 23rd November, 2001. The applicants/respondents, hereinafter referred to as the Gardaí, served a notice to vary the said decision of the High Court.

The facts of this case have been set out very fully in the judgment of the Chief Justice. Such short references to facts as there are in this judgment are included as a necessary part of the analysis and decision.

On this appeal a number of specific issues arose for decision. However, the primary issue in the appeal is as to the power of the members of the Dáil and Seanad to conduct a public inquiry of the type in issue. On that issue being decided against the appeal no other issues arise for decision. However, I have added an opinion on s. 3 Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997 ‘consent’; and on the issue of bias. The core issue on this appeal is the query as to whether the Houses of the Oireachtas, members of the Dáil and/or Seanad, acting through a committee, have the power to conduct a public inquiry of the type in issue.

The High Court declared that:

Against that order Ireland, the Attorney General, the Committee and Alan Shatter T.D. have appealed on the ground, inter alia , that the High Court erred in law in holding that it was ultra vires the powers of the Houses of the Oireachtas to conduct a public inquiry with the aid of the power of the State and conducted by members of the Oireachtas under the aegis of the Houses of the Oireachtas and with the authority thereof liable to result in findings of fact or expressions of opinion adverse to the good name, reputation and/or livelihoods of persons not members of such Houses. Consequently, in issue is the source, nature and scope of the power of the members of the Oireachtas to conduct such a public inquiry.

The nature of the inquiry in issue was described by the High Court. I summarise their findings. On the 19th/20th day of April, 2000, an incident occurred in Abbeylara, County Longford, during which Mr. John Carthy was shot dead by a garda or gardaí. Chief Superintendent Culligan submitted a report to the Garda Commissioner on the 28th June, 2000. The Garda Commissioner reported to the Minister for Justice, Equality and Law Reform. The Minister placed the report before Parliament which referred it to a Joint Committee of both Houses. The Joint Committee considered it and submitted it to both Houses. The report was published. Submissions were invited and received by the Joint Committee. On the 8th of March, 2001 the Joint Committee purported to establish a sub-committee. It is that reference and the work of that sub-committee which is the subject of this judicial review. The High Court held that it was quite clear that the sub-committee perceived its task as being one requiring it to enquire into the Abbeylara incident and related matters and to address possible conflicts of fact as in the opinion of the sub-committee arose directly or indirectly from oral or documentary evidence. Those findings, if considered appropriate, could include a finding of the unlawful killing of Mr. Carthy by an identifiable garda or gardaí. The gardaí have been compelled to attend and give evidence. A failure to attend and comply could have the consequences set out in the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997 . In these circumstances the sub-committee saw itself as having an adjudicative function, that it was entitled to make findings on the evidence tendered before it. All of the applicants are members of the Garda Síochána who have been directed to attend before the sub-committee in order to give evidence to it. Amongst the applicants are the officers who shot Mr. Carthy. The considerations of this committee may give rise to findings of fact or to conclusions which could adversely affect or impugn the good name of any person, including the gardaí. The Committee could conclude that an unlawful killing took place by an identifiable garda or gardaí.

The Constitution of Ireland, 1937 gives many explicit powers to the Dáil and Seanad. For example, Article 15.2.1 o vests the sole and exclusive power of making laws for the State in the Oireachtas, Article 15.6 vests the exclusive right to raise and maintain military or armed forces in the Oireachtas. Article 15.10 provides that:

Article 15.12 provides that:

Article 15.13 provides that:

Article 15.15 provides that:

There being no explicit grant in the Constitution to members of the Oireachtas of such a power to conduct an inquiry such as is in issue, the next issue to consider is whether there is an implied power to hold such an inquiry. It was not submitted that such an implied power exists. No literal interpretation of the words of the Constitution can show power being granted for such a committee. Nor can such power be inferred from a purposive interpretation of the words of the Constitution. I am satisfied that the words of the Constitution of Ireland, 1937 do not give rise to an implied power to members of the Dáil and/or Seanad to conduct a public inquiry of the type in issue in this case.

The Attorney General, the Committee and Alan Shatter T.D. submitted that a committee of members of the Dáil and/or Seanad have inherent power to conduct an inquiry such as is in issue. The kernel of this case is whether members of the Dáil and/or Seanad in committee have inherent power to conduct an inquiry of the type in issue.

The word ‘inherent’ is defined in the New Shorter Oxford English Dictionary as:

I adopt this definition. The question then is whether the power to conduct a public inquiry such as is in issue in this case is fixed, situated or contained in, or is existing in, members of the Houses as an essential or permanent characteristic, attribute or quality, or as a right, power or function under the Constitution of Ireland, 1937. Therefore it is necessary to consider whether the right to hold such an inquiry is an essential element of the Irish representative body, whether it is intrinsic, necessary or vested as a right or privilege. The Constitution of Ireland, 1937 must be analysed to see whether this inherent power claimed lies in the basic law.

Reference was made and reliance was placed by counsel on behalf of the Committee and by the Attorney General on the constitutional law of England and Wales and of the United States of America. They drew analogies between those constitutions and the Constitution of Ireland.

The parliament of Westminster and its powers are the product of history. The Mother of Parliaments developed after a struggle between the Monarchs of England and the Commons, which culminated in a transfer of power from the monarch to the parliament. The sovereignty of parliament was established. The characteristics of this English parliament were described in Law of the Constitution by A.V. Dicey , fifth edition, 1897, p. 83-86 as being:

A consequence of British history, which gave rise to the sovereignty of parliament, was to invest Parliament with considerable inherent powers. This has been described in case law, for example, in Gosset v Howard [1847] 116 ER 158. Parke B. delivered the judgment of the court. The House of Commons having ordered that the plaintiff attend the House he refused to obey. To compel his attendance at the Bar of the House to be questioned it was ordered and resolved by the House that the plaintiff should be sent for and brought before the House in the custody of the Serjeant at Arms and that the Speaker should issue his warrant accordingly. The Speaker issued his warrant which recited, inter alia , that the House of Commons having that day ordered that the plaintiff should be sent for in the custody of the Serjeant at Arms he required and authorised the Serjeant at Arms, to take into custody the body of the plaintiff. Parke B. said, at p. 172:

Parke B. went on to draw an analogy between the House of Commons and the Superior Courts in Westminster Hall. He stated, at p. 174:

Further, he stated, on p. 175:

I have quoted this case at some length because the judgment describes the nature and powers of Parliament at Westminster. The Mother of Parliaments was the Great Inquisitor of the Nation, had inherent powers of compellability of witnesses to the Bar of the Parliament, and the means of enforcing that power. It is clear from Gossett that the English Exchequer Chamber treated the House of Commons as a court of the realm, a Superior Court, and applied the law accordingly.

The above description of the British Constitution illustrates the significant difference between the British Constitution and the Irish Constitution. Consider first Dicey’s analysis. None of the three characteristics Dicey described of the British Constitution apply to the Irish Constitution. Thus, in contrast to the British Constitution, (a) there are laws that the Oireachtas cannot change - the Constitution of Ireland; (b) there is a marked and clear distinction between laws which are constitutional (the Constitution) and laws which are not, and (c) the Supreme Court may pronounce void an enactment of the Oireachtas.

The Dáil is not a court of the Nation. There is no concept of it being the Great Inquisitor of the Nation. Indeed it was not submitted that the Dáil has the inherent power to take persons into custody and bring them to the Dáil Chamber.

The historical root of the House of Commons is as a Superior Court of the Nation. That root goes back hundreds of years - to the mists of antiquity. The Dáil is not a Superior Court of Ireland. The Irish Constitution is a modern constitution which includes principles such as the separation of powers. Consequently, the analogy of the Mother of Parliaments is not apt in analysing the parliament in Dublin.

The legislative committee system such as is in issue in this case was not expressly established in the Constitution of the United States of America. It was construed as being an inherent part of the Constitution of the United States by the courts of the United States of America. In so construing their Constitution it is clear that it was done with a vision that the American Constitution continued and incorporated concepts from the Mother of Parliaments in Westminster.

The Constitution of the United States of America was written in a different historical context and at a different time to that of the Irish Free State. Also, there was a desire, as in Canada, to proceed with a constitution with many similarities to that of Westminster. The Canadian situation was noted by Kingsmill Moore J. in In Re Irish Employers Mutual Insurance Association Limited [1955] IR 176. At pp. 223-224, Kingsmill Moore J. contrasted the Canadian situation in the nineteenth century, where there was desire evidenced to proceed with a constitution similar in principle to that of the United Kingdom, in contrast to that of the Irish Free State. He stated:

Very different was the historical background of the Saorstát Éireann Constitution. It arose out of an armed revolt against British rule and the terms of a Treaty to put an end to hostilities. Of those who enacted it nearly all had been engaged in the revolt in one way or another and many had actually borne arms. There is not the slightest reason to suppose that ‘with a view to the perpetuation of the connection with the Mother Country’ they desired ‘to follow the model of the British Constitution so far as circumstances permit’. The admitted reproduction in the Constitution of many of the features of the British Constitution is more properly attributable partially to a genuine appreciation of the inherent excellence of those features, partially to the fact that the Constitution had much of the nature of a compromise between British and Irish views.”

That the Irish and British constitutions had significant differences was also referred to by Ó’Dálaigh C.J. in Melling v. O Mathghamhna and the Attorney General [1962] IR 1. Further, he referred to the difference also between Ireland and the United States of America stating, at p. 46:

Not only was the historical context different, and the time different (by centuries), but also the concept of ‘legislative power’ was different. The words ‘legislative power’ is not a precise term. As was stated by Landis: Constitutional Limitations on the Congressional Power of Investigation (1926) Harv. Law Review Vol. XL 153 at p. 156:

Landis then went on to analyse powers of a legislative committee of inquiry. It is clear that

He considered the powers of the Parliament in Westminster in early times - that is sixteenth,

Having analysed the British roots Landis states at p. 165:

The use of legislative committees was described by Clark J. in (his dissenting opinion in) Watkins v. United States (1957) 354 U.S. 178 at p. 219:

In this historical context the courts of the United States have given a very broad definition of the concept of legislative power. But this interpretation is built upon another constitution which had inherent powers of inquiry in the legislature and inherent powers of compellability of witnesses to the legislature. Thus, the legislative committee of inquiry approach of the U.S.A. is grounded in its constitution, which has roots in the Westminster model. As already noted the Westminster Constitution is not similar to the Irish Constitution.

The congressional and Senate committee system as established in Washington has no resonance in the establishment of the Irish Dáil and Seanad. The historical context was different, the times were different, the political basis for the State was different. Consequently, the model of the parliament in Washington and its legislative committee system is not persuasive in interpreting the Irish Constitution.

The Attorney General, the Committee and Alan Shatter T.D., placed emphasis on the concept of legislative power and cited cases, largely from the United States, to ground the submission that legislative power included the establishment of a committee such as is in issue.

However, legislative power is not a technical term. It is a term to be interpreted in the context of the Constitution of Ireland. Whereas all the parliaments considered have power to establish committees relevant to their work the adjudicative nature of the committee in issue, in relation to a specific incident, with serious consequences to individuals, places it apart from the mainstream.

It is noteworthy that such a committee was not explicitly or implicitly written into the Irish Constitution. Also, that it was not a system utilised by the legislature previously. Also, that previously other tools were used, e.g. tribunals of inquiry under the Tribunals of Inquiry Act, 1921 as amended. Also, that it was only in recent times, 1997, that the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997 was passed into law. These latter matters contrast to the situation in Westminster and Washington.

The Irish Constitution, both in 1922 and 1937, had the benefit of modern constitutional concepts and people with a vision of a new Irish State. There is no reason to assume that the privileges and powers of the House of Commons would naturally be an incident of the representative assembly in Ireland. Indeed there is evidence to the contrary.

The issue of parliamentary committees arose during the creation of the State of Ireland. Efforts to establish a parliamentary committee system of government in Ireland between 1919-1922 were unsuccessful. Counsel referred the court to A Note on the Dáil Constitution , 1919, Brian Farrell, Irish Jurist [1969] 127. At p. 134 he stated:

For the Government, the acting President, Arthur Griffith pointed out that the motion meant a complete revolution of the Constitution of Dáil Éireann. It meant taking away the responsibility of the Ministers and placing it in the hands of Committees and the sentiments were echoed by Eoin MacNeill who said it was a very revolutionary proposal and he did not believe that the country would approve of it.

Whatever about the country, certainly the Dáil was not ready for any experiments in the field of parliamentary institutions. MacNeill’s amendment that the motion be postponed for twelve months was carried on a division by 33 votes to 1.”

Counsel also referred the court to B. Farrell, The Drafting of the Irish Constitution (1970) I.R. JUR 115-140: 344-356, (1971) I.R. JUR 112-135: 345-359.

It is incontrovertible that the committee established to draw up an Irish constitution looked far wider than the British model. Hugh Kennedy, a member of the committee and later the first Chief Justice of the Irish Free State (1924-1932), made this clear. In his foreword to Leo Kohn, The Constitution of the Irish Free State, Kennedy C.J. stated, of Leo Kohn:

Here is the key to the issue. The fact that the Irish Constitution was something different from that of England and the Dominions. The fact that it derived from “another line of thought”.

In the Articles of the Constitution of the Irish Free State which established and described the parliament no reference was made to parliamentary committees of inquiry. Nor is there any reference to parliamentary committees of inquiry by the Dáil and/or Seanad established under the Constitution of Ireland, 1937. Therefore it is a matter of construing and interpreting the Constitution of Ireland, 1937 to determine whether such committees are an inherent part of the Irish constitutional system of government.

The Constitution of Ireland, 1937 did not establish a structure of government, or a system of parliament, modelled on Westminster. Indeed differences which existed under the Constitution of the Irish Free State, 1922 were expanded in the Constitution of Ireland, 1937. For example, the concept of parliamentary sovereignty was not established. The Superior Courts were given the power of judicial review. The power of the people was given to three great organs of State (the legislature, the executive and the judiciary) and divided between them with checks and balances established on the powers so distributed. Construing the Constitution to determine whether such an inherent power exists necessarily involves analysis to see if such a power would be consistent with the Constitution as a whole.

Emphasis was placed by counsel for the Committee and by the Attorney General on cases of the United States. For, as has been referred to previously in this judgment, the Supreme Court of the United States of America was requested to determine whether there was an inherent power under the Constitution of the United States of America for their members of parliament, Congress and the Senate, to hold Committees of Inquiry and the extent of their powers. However, there are significant differences between Irish constitutional law and that of the United States of America. In Ireland there are no inherent compellability powers in the Houses of the Oireachtas under the Constitution. The powers that exist were established by statute. There has not been a history of such inquiries by the members of the Houses of Parliament. These factors reflect the true nature of the Houses of Parliament in Ireland and are in contrast to parliaments in Westminster and Washington.

Committees are a part of legislative government. However, they have not until now included the type of inquiry in issue, the adjudicative inquiry of fact, of a specific incident, involving individual culpability, of named or identifiable individuals, in relation to an unlawful killing, such as is issue in this case. Since 1921 the type of inquiry in issue has been undertaken usually by a tribunal established under the Tribunals of Inquiry Act, 1921, as amended. This reflects the nature of the legislature established in Ireland and the prior history of committees of inquiry over the previous few hundred years. It leaves to the parliament the power to initiate inquiries but the machinery which has been established envisages the inquiry being held outside parliament. In Goodman International v. Hamilton [1992] IR 542 at pp. 597-598 Hederman J. described the situation:

It has not been argued that the inherent power of the Dáil and Seanad enable them to compel non-members, witnesses, to attend and to take steps accordingly. The powers of compelling the attendance of witnesses described in Gossett have not been assumed in Ireland. Such powers exist by Statute law. This is of fundamental importance in analysing the powers of the Dáil and Seanad. It highlights the difference between the parliament at Westminster and that in Dublin. The parliament in Westminster has these powers inherently - from its roots as a court of that nation. The root of the Dáil and Seanad is entirely different.

There are a number of factors of importance in this analysis. They include the following:

The Constitution of Ireland gives explicit protection to a person’s good name. Article 40.3.2 o states:

This right of a citizen and duty of the State was not a feature of the Constitution in England and Wales in early times nor is it an Article of the Constitution of the United States of America. It is an illustration of “another line of thought”, of “something different”.

Taken with other fundamental rights protected under the Constitution it illustrates the human rights foundation in this basic law. The rights protected include not only good name but also rights of due process, fair procedures. The Constitution of Ireland, 1937 is a modern constitution. In 1937 it had a prescient vision of many matters which would be relevant in constitutional law in the latter part of the 20th century. While it was enacted prior to the International Declaration of Human Rights and the European Convention of Human Rights it had already placed human rights as a cornerstone of the Irish State.

As already indicated the Constitution specifically incorporates the right to good name. In neither the United States of America nor the United Kingdom was such a right expressly guaranteed. While this is not the pivotal point of my judgment it is a factor of importance in considering the constitutional machinery for an adjudicative inquiry of the type in issue.

It was submitted that a number of statutory provisions necessarily implied the existence of an inherent power to conduct the type of inquiry proposed. I have had the opportunity of reading the judgments about to be delivered by Hardiman J. and Geoghegan J. and I am in agreement with their analysis of this submission. I am satisfied that no inherent power exists, by reason of necessary implication from statutes, to conduct the type of inquiry in issue.

Judges have a duty to uphold the Constitution: Article 34.5.1 o . In addition the Superior Courts may judicially review legislation to determine its constitutionality. These are grave duties and responsibilities of judges.

In exercising these duties and responsibilities it is often necessary to balance and harmonise conflicting constitutional rights. This requires careful judicial judgment. It may require the exercise of judicial discretion to achieve a just and proportionate determination. When a court is protecting constitutional rights it has specific duties and responsibilities under the Constitution. These duties and responsibilities are exercised by a court using power which has come from the people and which has been designated by the Constitution to be exercised by the courts. This duty and responsibility are to be carefully guarded by a court for the protection of the Constitution and constitutional rights.

In construing the Constitution and protecting rights the courts do not have a role in legislating or writing a constitution. In this case the Attorney General, Counsel for the committee, and Mr. Shatter T.D. are asking this court to make a decision which would involve considerable judicial activism. They request that the court construe the Constitution so as to find an inherent power for the Houses of the Oireachtas to establish a committee system of legislative government to empower an inquiry of the type in issue. The court is requested to describe and proscribe the boundaries of this alleged inherent power. This is a request to make law. Without shirking the duty and responsibility of upholding the Constitution and the laws it is necessary to ensure that such a decision does not exceed the jurisdiction of the court. It is my view that it would not be constitutional to make such a judgment. Such a decision should be made elsewhere, either by the legislature or by the people. In my opinion to decide that a power as submitted for the Committee is inherent in the Constitution would be either to draft a constitutional amendment or to legislate. To establish such a legislative committee of inquiry is a matter for the people in a referendum or the legislature in legislation, and is not a matter for the court. It is a matter neither explicitly nor implicitly in the Constitution. It is a power contrary to the roots laid down in 1922 and grown in 1937. It is not an inherent power in the Constitution of Ireland, 1937.

Whether such a power in the Houses of the Oireachtas is a good thing or a bad thing is a policy issue to be determined by the legislature or by the people. Whether the people’s representatives in the national legislature should undertake inquiries such as in issue is a policy matter to be determined in another forum. It is a policy matter to be decided by the representatives of the people in a legal frame. It is a policy matter which has to be decided in light of the Constitution of Ireland.

A cornerstone of the Irish legal system is the Rule of Law. This legal principle has three components, being: (a) everyone is subject to the law, (b) the law must be public and precise, and, (c) the law must be enforced by some independent body, principally the court system: D.G. Morgan, Constitutional Law of Ireland (Round Hall Press, 1990). All three components are important, the second is of particular relevance to the issues in this case. Thus, the law must be public and precise. A reason for this component of the Rule of Law is that the law should be ascertainable and predictable. That is clearly not the situation in this case.

Counsel pointed out that it was only in relation to the last issue that the parties disagreed. As

Whilst the issue is simple it is fundamental and goes to the root of the nature of our constitutional government. The Rule of Law applies in Ireland as a principle fundamental to constitutional justice. It requires public and precise law. There is no public law - either in the Constitution or legislation - enabling such an inquiry as is in issue in this case. Consequently, the issue as to whether such law is precise does not even arise for consideration. It would be in breach of the Rule of Law to allow the appeal. To allow the appeal would be to legislate, to have the courts write the law on such committees and their boundaries. That role is for the Oireachtas - to legislate in accordance with the Constitution.

There is not an explicit, implicit or inherent power for the members of the Oireachtas to establish committees of inquiry of the type in issue. However, the legislature has authority in conjunction with the Minister, pursuant to the Tribunals of Inquiries Act, 1921, as amended, to initiate a tribunal of inquiry. The choice is a matter for the legislature. This type of inquiry was commonly used in the 1920s when the Constitution was emerging. It was the vehicle of choice for such inquiries. It remains available and in use.

The powers of the Oireachtas in the State are evolving. In 1937 the Oireachtas had the sole and exclusive power of making laws for the State. No other legislative authority had powers to make laws for the State: Article 15.2 Constitution of Ireland. However, that is no longer the situation. The decision that Ireland join the European Union has had a profound effect, not least on the legislature. Many laws for Ireland today come from the European Union through Regulations and Directives. The changing nature of legislation has given rise to issues of a democratic deficit: Meagher v. Minister for Agriculture [1994] IR 329, at pp. 366-368 and Maher v. Minister for Agriculture [2001] 2 ILRM 481 . This query of a democratic deficit in relation to legislative principles and policies is a kernel issue in legislative governance of Ireland. It is an issue relating to the making of laws for the State and consequently at the core of the legislature’s branch of power. It may require development of committees within the Houses of the Oireachtas. However, that issue contrasts sharply with the type of adjudicative inquiry at issue in this case.

There is no express power in the Constitution of Ireland enabling a Committee of members of the Dáil and/or Seanad as members of the Houses of the Oireachtas hold an inquiry such as is in issue. There is no implied power in the Constitution of Ireland permitting such an inquiry on such issues. The Attorney General, the Committee and Alan Shatter T.D. have submitted that the members of the Dáil and/or Seanad, that the Houses of the Oireachtas, have inherent power to hold such an inquiry. Analogies were drawn with the parliament at Westminster. However, that analogy must fail as the concept relied upon - Westminster Parliament with its root as the Grand Inquisitor of the Nation - a court - is contrary to the Constitution established in Ireland. Reliance was placed also on the analogy of the representative body in the United States of America, and that system of legislative committees. However, it is clear from precedent and academic analysis that the committee system in Washington was influenced by a vision of continuing in America a Westminster style of parliament. Consequently, just as the parliament at Westminster is not a model for the Irish parliament, so too does the Washington model fail to be persuasive.

In the final analysis it is a matter of construing the Constitution of Ireland: the document by which the people gave powers to a variety of institutions. The court is asked to find inherent power in the Constitution for the members of the Dáil and/or Seanad, the Houses of the Oireachtas, to hold inquiries of the type in issue. This is a request for a considerable degree of judicial activism. I am satisfied that such an approach and interpretation is contrary to the fundamental concepts of the Irish Constitution, there being no evidence or context for such a power, indeed the words of the Constitution, and its background, are quite to the contrary.

As the first Chief Justice of Ireland, Kennedy C.J. wrote in the foreword to Leo Kohn, The Constitution of the Irish Free State:

The Constitution of the Irish Free State, 1922 was a step on a different road, which journey was continued by the Constitution of Ireland, 1937. These Irish constitutional instruments were, in many respects, different from those of England and other colonies and dominions. Another line of thought developed in Ireland. While retaining the Common Law System, Ireland wished to establish an Irish legal order. There was no reality in returning to the ancient Irish Brehon Law. A modern constitution was required. Thus in 1937 principles and theories such as the principle of the separation of powers, fundamental rights, including the right to a good name and fair procedures, were continued, and expanded, powers were given to the executive and the legislature and the courts, which were given the duty of guarding the Constitution. A new constitutional basis for the State was laid. The constitutional government established was not a mirror image of that in London or Washington.

These steps of 1922 and 1937 were taken on a journey on a road then less travelled by other countries with a common law legal system. Ireland took the road

Ireland took the road less travelled in 1937. It was a decision in advance of its time. It presaged a move toward modern constitutions. The Constitution of Ireland, 1937 was prescient of European Constitutions and international instruments to follow. In 1937 the Constitution of Ireland protected fundamental rights, fair procedures and gave to the Supreme Court a role as guardian of the Constitution. A decade later, after World War II, the United Nations Charter and the Universal Declaration of Human Rights were brought into being and in Europe the European Convention on Human Rights followed. Over the succeeding decades of the twentieth century, courts, through judicial review, have sought to protect human rights. Developments in Europe have heralded changes in England and Wales also. In the home of the Mother of Parliaments the Human Rights Act, 1998 has been passed. And, while the courts of England and Wales were not given the full judicial review role as recognised in the United States of America and established in Ireland in 1937, the courts of England and Wales have been given power to declare Acts of Parliament incompatible with the convention: s. 4 (1)(2) of the Human Rights Act, 1998 . While the Constitution of England and Wales is changing, powers still reflect the historical roots - for example, the House of Lords retains legislative and judicial power. However, the protection of human rights and the role of the courts have become more similar to that in Ireland under the Constitution of Ireland. The fundamental principles of the Constitution outlined by Dicey in the nineteenth century are changing in the twenty first century, in the England and Wales of the European Union and the Human Rights Act, 1998 .

Under the Constitution of Ireland, 1937 power was given to the three great organs of State. Legislative power was given to the Oireachtas. It has neither explicit, implicit nor inherent powers to conduct the type of inquiry in issue. However, it could initiate a tribunal of inquiry under the Tribunals of Inquiry Act, 1921 as amended. The issue of specific future legislation establishing a statutory inquiry or a committee of inquiry is not before this court. As the law stands the Houses of the Oireachtas do not have inherent power to hold the type of adjudicative inquiry in issue.

Members of the Oireachtas may function by way of committees. Such committees may differ in nature. The work of a committee may go to the essence of the role of the legislature in relation to legislation. In such work there may be references to individuals. Such references may be a necessary part of the work of the committee. A constitutional balance has to be obtained and fair procedures applied. However, if it is wished to hold an adjudicative inquiry of the type in issue in this case, there should be a legal basis for such an inquiry. None exists under the Constitution or the law.

While this issue does not now require to be decided, there was considerable legal argument as to the consent necessary for the purpose of issuing directions under the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997 and it might be useful to give an opinion. The said Act made provision regarding compellability, privileges and immunities of witnesses before committees of the Houses of the Oireactas. Section 3 of the Act provided power to committees to obtain evidence. The consent required is described in s. 3 (9). Section 3 (9) states:

The words are plain. They require that a consent of the appropriate subcommittee shall be in writing. The words are clear. It is a mandatory requirement. The consent is required to be in writing. There is no provision for an oral consent. Further, s. 3 (9) is precise in requiring that the document containing the consent shall be signed by the chairman of the subcommittee or by another member of the subcommittee duly authorised in that behalf by such chairman. Thus, not only is the consent to be in writing but it is required to be in a document signed by a specified person.

I am satisfied that a valid consent under this section must be in writing in a document as specified. An oral consent, or a consent not yet in document form as specified, is not a consent for the purposes of s.3 (9) of the Act .

While this issue also does not require to be decided, there was considerable legal argument on the matter of bias in relation to such a committee and it might be useful to express an opinion. The issue of subjective and objective bias has been the subject of previous decisions: O’Neill v Beaumont Hospital Board [1990] ILRM 419; Dublin Wellwoman Centre Ltd. v Ireland [1995] 1 ILRM 408; Bula Limited and Ors. v Tara Mines Ltd. Unreported, Supreme Court, 3rd July, 2000; Webb v The Queen (1994) 181 C.L.R. 41 .

In this case the inquiry was not the administration of justice but an inquiry of the nature described. However, fair procedures are required. While there was some discussion of ‘structural’ bias I am satisfied that the issue of bias relates to two aspects - subjective and objective. Subjective bias means actual bias and clearly no committee member who has subjective bias may participate in such an inquiry. Objective bias is a matter which also is a component of fair procedures. Thus a committee member in such an inquiry as is in issue may not sit if in all the circumstances a reasonable person would have a reasonable apprehension of bias, an apprehension that the committee member might not bring an impartial and unprejudiced mind to the hearing. This would refer to considerations relating to matters prior to the establishment of the committee and during the hearings of the committee. Thus, indications of a view being held by a committee member whilst the hearing is proceeding would be contrary to the concept of fairness.

The Constitution gives no explicit power to the members of the Houses of the Oireachtas to hold an inquiry such as is in issue in this case. Nor does the Constitution imply such a power. Further, the members of the Houses of the Oireachtas do not have inherent power to hold such an inquiry. I would not allow the appeal. However, I consider that the form of declaration granted by the Divisional Court is too wide. The relief should relate only to the inquiry in issue. I would propose the following two orders. I would grant a declaration that the conducting by the Joint Oireachtas Sub-Committee of an inquiry into the fatal shooting at Abbeylara on the 20th day of April, 2000 capable of leading to adverse findings of fact and conclusions (including a finding of unlawful killing) as to the personal culpability of an individual not a member of the Oireachtas so as to impugn his or her good name is ultra vires in that the holding of such an inquiry is not within the inherent powers of the Houses of the Oireachtas. Also, I would grant an Order of Certiorari quashing the directions to the applicants requiring them to attend before the Abbeylara sub-committee there to give evidence and to produce documents in their possession. In view of these proposed orders it is unnecessary to make any further order including any order in relation to the notice to vary.

As the complex history of this matter has been clearly set out in the judgment of the Chief Justice no purpose would be served by my engaging in the same task. Nor will it be necessary for me to analyse the numerous decisions to which the Chief Justice and my other colleagues have referred in the course of their judgments. As far as possible I will confine my judgment to an identification of what appear to be the essential issues raised in this appeal and to express my conclusions thereon.

In my opinion the declaration sought by the respondents and granted by the divisional court was ambiguous. The ambiguity arises, in part at any rate, from the varying nature of different types of inquiry and the characteristics or powers which they possess. However, inquiries, whether conducted by a committee of the Oireachtas or by a tribunal appointed by it, have or may have three features, namely, first, the gathering of information from individuals, secondly, the power to compel persons to attend at and give evidence to the inquiry and, thirdly, the right or duty to “make findings”.

The respondents argued, and the divisional court accepted, that subcommittees of the Oireachtas did not have an inherent or implicit power to conduct inquiries exercising those three powers.

In my view that issue should be approached by reference to duties and powers expressly or impliedly conferred upon the Oireachtas by the Constitution or positive law. An historical approach to the problem provides only very limited assistance. Whatever the historical background to the Constitution, or the terms of any international agreement which preceded it, Bunreacht na hÉireann explicitly recognises that the Constitution was adopted, enacted and given to the people of Ireland by the people of Ireland. There is no question of the Oireachtas or any other organ of State acquiring rights, powers or duties by assignment or devolution from the parliament in Westminster. All sovereign powers vested in the people of Ireland and the extent to which they conferred those powers or any part of them on any organ of State can be determined only by identifying the powers so expressly or impliedly conferred.

In pursuance of the power most obviously granted to it (by Article 15(2) of the Constitution) the Oireachtas enacted the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997. It is beyond debate that a committee appointed by either house of the Oireachtas, or jointly by both houses of the Oireachtas, or a subcommittee of such a committee, may compel the attendance before it of any person required by the committee to give evidence and to produce any document in his or her possession subject to certain consents being obtained. The constitutionality of the Act of 1997 has not been challenged and, indeed, Counsel on behalf of the respondent gardaí accepted that there was no basis on which such a challenge might be made.

It is of course agreed that elected representatives should take every opportunity to inform and advise themselves on all matters relevant to their wide-ranging duties as law makers in addition to informing themselves as to the needs, interests and concerns of their constituents. The information required by TD’s will range from the international, technical and detailed to the parochial, popular (or unpopular) and general. The great Library of Congress in Washington is a monument to the information required by diligent legislators.

Thus the right of members of the Oireachtas, whether individually or collectively, to obtain information is implicit in the Constitution and the right, in certain circumstances, to compel members of the public to provide such information under oath is expressly conferred by statute. The real concern, as I see it, relates to the power or duty of a subcommittee of the Oireachtas “to make a finding of fact”.

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

The Oireachtas must have as ample powers to perform its functions as the courts have to fulfil theirs. However extensive the powers of either organ may be they are necessarily subject to this qualification: they cannot trespass on the monopoly constitutionally given to the other. The Oireachtas cannot usurp the functions of the Courts (see Buckley & Ors (Sinn Féin) .v. Attorney General & Anor [1950] IR 67). Nor can any other person or body exercise the judicial function which the Constitution exclusively vested in the Judiciary (see In re O’Farrell & Anor [1960] IR 239). Similarly the courts have no jurisdiction to substitute for impugned legislation a form of enactment which it considers desirable or to indicate to the Oireachtas the appropriate form of enactment which should be substituted for the condemned legislation (see Somjee .v. The Minister for Justice & the Attorney General [1981] ILRM 324 and MacMathúna .v. Ireland & Anor [1995] 1 IR 484. The legislature cannot confer on itself or any other person or body a power or duty, in whatever terms expressed, which would amount to the exercise of the judicial function. On the other hand confusion may arise from the fact that the legislature can confer a power, and multiplicity of persons and bodies may assume, functions which are required to be exercised in a judicial manner. What constitutes the administration of justice so as to preclude its exercise by anyone other than the courts established under the Constitution does not admit of a test which can be easily and confidently applied (see Kennedy .v. Hearne [1988] IR 481). However, an essential feature of a judicial adjudication is that the decision, view or opinion of the adjudicator is determinative of an issue arising in the matter. The opinions and views of other persons and bodies may indeed have, whether directly or indirectly, far-reaching effects because of the standing of the person or body by whom they are given or made but they are merely opinions or views: not determinations. The reports issued or to be issued by the numerous tribunals set up under the 1921 Act though generally, if not invariably, presided over by a judge of the Superior Courts do not decide the issues submitted to them for consideration and the ultimate report, however distinguished its author, and however comprehensive the research undertaken by him, necessarily leaves it open to the parties, or any person who may be involved, to have their rights in respect of that issue determined by the Courts established under the Constitution. To that extent it is properly said that the reports and decisions of the most august, but non judicial bodies, are “legally sterile”. If, for example, the Committee of Public Accounts continued with the inquiry which, on the 1st of December 1970, Dáil Éireann had directed it to undertake, and upheld the contention of Chief Superintendent John P Fleming to the effect that Mr Padraig Haughey was guilty of a criminal offence, that conclusion would not have enable the committee, or indeed any court of law, to impose any penalty by reference to that finding or conclusion. On the other hand, as the case of In re Haughey [1971] IR 217 so clearly demonstrates, an investigation by a non judicial body through incapable of imposing any penalty or sanction, can inflict very serious damage to the character and reputation of witnesses called before it. To avoid that injustice, and vindicate the constitutional right of the citizen to his good name, the Haughey case and numerous cases decided thereafter, have set out the procedures to which “an accused” witness is entitled to vindicate his constitutional rights.

There is then a level of decision making or fact-finding which, though non determinative, has the capacity to be very damaging indeed. It is that factor which requires in this (and other) jurisdictions that such conclusions be based upon material in respect of which the person exposed to injury has an opportunity to comment. This was recognised clearly in the UK in In re Pergamon Press Ltd [1971] Ch 388 and, indeed, in In re Haughey (above) itself. A relatively common example of the problem, and the steps required to overcome it, is to be found in the State (Shannon Atlantic Fisheries Ltd) .v. McPolin & Ors [1976] IR 93. In that case the defendant had been appointed under the Merchant Shipping Act, 1894 , to conduct an inquiry into the circumstances in which a fishing vessel had been wrecked off the Galway coast and report his findings to the minister concerned. In his report the inspector stated that the vessel concerned was sent to sea in an unsafe condition by reason of under-manning. The owners of the vessel protested against the conclusions contained in the preliminary inquiry on the grounds that they had not been heard in relation thereto. The report was set aside on the grounds that the inquiry was not conducted in accordance with the principles of natural justice notwithstanding the fact that the report itself had no adverse consequences for the owners of the vessel.

There is an intermediate situation in which the report of an inquiry may have an operative effect over and above the aspersions cast upon the character of any person identified in the course of the inquiry and yet fall short of a judicial determination. Inquiries by employers as to the conduct of their employees are an example of where this problem arises and how it may be resolved. In Glover .v. BLN Ltd [1973] IR 388 the board of directors of the defendant company were required to conduct an inquiry to ascertain whether the plaintiff/employee was in breach of his contract with them. An adverse finding arrived at in accordance with the requirements of natural justice would result in the dismissal of a plaintiff. Again, and more dramatically, in O’Neill .v. Beaumont Hospital Board [1990] ILRM 419 the board of Beaumont hospital, which was composed of fifteen part-time members appointed by the Minister for Health, had to inquire into the performance of his professional duties by a consultant paediatric neurosurgeon during the course of his probationary employment so as to enable the Board to certify whether his services had, or had not been, satisfactory. Only a favourable decision would have resulted in the permanent employment of the plaintiff by the defendants. It was the nature of the contract between the plaintiff and the defendants which permitted and required the Board to carry out that inquiry and reach its decision - in accordance with the requirements of natural justice - on the matter in issue. As the committee was composed of a very representative group of business and professional people, as well as housewives, and indeed politicians, it was obvious that they would have very serious problems in conducting the highly technical inquiry which was involved and reaching an opinion which could have very far-reaching effects for a young professional man.

In my view the making of decisions, the reaching of conclusions or the finding of facts, however designated, is a common and unavoidable function of everyday life. If it involves a determination of the rights of parties it may well be a matter which the courts alone can decide. In every other walk of life the only other requirement is that the adjudication, if impinging upon the reputation or character of any party, must involve the application of the principles of natural justice. I would readily infer that the Oireachtas had power to confer on a subcommittee a power to make findings of fact in the sense that those findings represented the views of the committee or a majority of them on any matter which might be in controversy. The fact that the findings might of themselves have serious repercussions, or that the publication thereof might cause damage to the reputation of witnesses or other members of the public, is regrettable but unavoidable. This contingency is adequately provided for by the well established requirement that any such witness must be afforded such protection as the circumstances require extending if necessary to what is described as “the full panoply of the Haughey rights”. I accept therefore that a subcommittee of the Oireachtas may be empowered to gather information, compel witnesses to attend before it and to make findings of fact on any issue properly raised before it. More particularly I am satisfied that such power can be exercised without the enactment of further legislation. It is not challenged by the gardaí - respondents that a right to conduct an inquiry challenged in these proceedings could be validly taken or conferred by legislation enacted in that behalf.

There are, however, limits beyond which such inquiries may not extend. There may be difficulties in defining those limitations. However, even greater will be the practical difficulties for a committee composed of democratically elected politicians in conducting any inquiry in accordance with the fair procedures which may be required to protect the constitutional rights of persons giving evidence to the inquiry or who may be referred to in any report issued by it. As the essential function of members of the Oireachtas is to enact new legislation, or review existing laws, the investigation of matters which may impinge on those tasks is potentially within their remit. It may be less difficult and more helpful to identify the scope of the inquiries which a subcommittee may not conduct. It is inconceivable that a committee of the Oireachtas could interest itself in the exercise by individual citizens of their private rights. What would be even more disturbing would be an inquiry - whether conducted by a committee of the Oireachtas or a tribunal set up under the 1921 Act - to carry out a criminal investigation. Whilst a proper investigation or inquiry into a matter of public concern might, incidentally, impinge upon conduct of a criminal nature, it is clear it would be difficult, if not impossible, to reconcile proceedings in the nature of a public hearing by a grand jury with the right to a trial of criminal charges in due course of law guaranteed by the Constitution. Certainly evidence obtained from a witness under compulsion of law could not be used against him in any subsequent criminal charge. The Abbeylara Inquiry is no such investigation. The issues identified by the subcommittee in the “Statement of Issues and List of Witnesses” would appear be entirely appropriate for investigation by a subcommittee of the Oireachtas. Of the thirty issues identified I would classify twenty-four as concerning matters relating generally to the conduct and activities of the gardaí, the Department of Justice, coroners inquests, licensing of firearms, training and similar matters. Issues which were specific to the Abbeylara affair include four concerning the medical health and treatment of the late John Carthy and two concerning the conduct of the gardaí in the course of the incident. Some of the submissions to the subcommittee would suggest that questions could be raised as to the tactics of the gardaí in relation to disconnecting television or supplying or failing to supply cigarettes but the most fundamental of the specific issues will be obviously the shooting dead of the late John Carthy. Clearly a question would arise as to the correctness of the finding or opinion of Chief Superintendent Culligan that the shooting was necessary to protect the lives of gardaí. From the submissions it would appear that this view would be challenged, first, on the basis that it was unnecessary to fire any shot, or alternatively, that the fourth shot was unnecessary and unjustified as John Carthy had been disabled by the third or earlier shots and no longer posed a threat to the nearby gardaí. The death of John Carthy is the matter of deepest concern to his distressed friends and relatives. It is a matter of universal concern that any human being - particularly a young man who was mentally unstable - should meet his death in this tragic fashion. However it does seem that the general thrust of this inquiry concerns a broader picture in relation to structures or procedures which could and might be regulated by legislation to ensure that any incident comparable to the Abbeylara affair should be dealt with in the most efficient, competent and humane manner consistent with the protection of the lives and liberty of all citizens.

In recent years there have been numerous and repeated applications to the Courts for the judicial review of the decisions of tribunals set up under the 1921 Act - what are usually called the “Judicial Inquiries”. It is constantly alleged that these inquiries do not afford to witnesses the requisite degree of fair procedures to protect their constitutional rights. Indeed very real problems do exist in extending fair procedures, which were developed under the adversarial judicial system, to an inquisitorial system. Evolving jurisprudence may have assisted in resolving some of these problems but the difficulties faced by a judge, whose profession and career gives him both security of tenure and a particular expertise, would be multiplied several fold for a committee consisting of elected politicians who do not have that security and may not have that expertise. The tradition of the judiciary is properly one of reticence: the business of the politician is one of communication. The very nature of the duties performed by a politician involve discussion on matters which are of interest to them and their constituents. Such discussion must give rise - as it has already done in the present case - to difficult questions of perceived bias. It would seem to me that fair procedures would virtually preclude a politician from discussing any aspect of an inquiry in which it was involved until the matter had been concluded. Whether the television interviews granted by some members of the subcommittee in the present case would disqualify them from further participation is a matter on which the divisional court has not expressed any view and accordingly is not before this court for determination. It is, however, obviously one of many matters which is likely to give rise to problems in the conduct of an inquiry by a committee consisting of elected politicians.

Of the procedural or technical difficulties which arose in the setting up of the committee the most significant related to the issue as to whether the requisite statutory consent had been obtained.

This much is agreed. At the date on which the subcommittee first gave or purported to give directions pursuant to s .3 of the 1997 Act the subcommittee did have the approval of the Compellability Committee to give those directions. It is equally clear that such consent was not in writing, less still a writing signed by the chairman of the subcommittee or any other member of the subcommittee authorised by such chairman as required by s .3 subsection 9 (a) of the Act of 1997.

The question is whether the consent of the Compellability Committee to the purported directions must exist in the written form prescribed by subsection 9 before the subcommittee can validly exercise any such direction.

In addition to the form of the document, paragraph (b) of subsection 9 prescribes that the consent shall relate to specified functions of the subcommittee concerned and goes on to provide that the consent may relate to a variety of directions or persons “as may be specified in the consent”. That potential for complexity may be an additional reason for the legislature expressly requiring the consent to be in writing.

However the primary purpose - or so it would appear to me - of requiring the document to be in writing, is the statutory evidential value conferred on it by paragraph (c) of subsection 9 . That paragraph provides that a document purporting to comply with Section 3 subsection 9 shall “unless the contrary is shown, be evidence of the consent .....”.

It was argued on behalf of the subcommittee that the consent of the Compellability Committee became operative - at least for some purposes - as soon as it was given. It was pointed out that the Oireachtas could have provided - if they had intended otherwise - in s .3 (1) that the subcommittee could give directions provided that they had the prior consent in writing of the appropriate subcommittee. To this the Respondents reply that the consent referred to in s .3(1) is by virtue of subsection (9)(a) required to be in writing so that the inclusion of the words “in writing” in s .3(1) would be tautologous.

The 1997 Act has not given the word “consent” an artificial meaning. It must therefore be understood in its ordinary sense as permission or approval. There is no doubt - and the Respondents would not dispute - that if and when the Compellability Committee unanimously approved the application of the subcommittee that they thereby gave their “consent” to that application.

When the Oireachtas required that the consent should be reduced to writing it did not change the nature of the consent but did make a statutory requirement as to the form in which it should be recorded.

Counsel on behalf of the Appellants drew attention to the distinction between a spoken order of the Court and the document in which it is recorded. That such a distinction exists is elementary. One can have an order or a consent and it can be recorded and may be required to be recorded in a particular form or with particular solemnity. On the other hand one cannot gainsay the fact that the order in the case of the Court, or the consent in the case of the Compellability Committee, was made or given before it was reduced to writing.

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

The same definition extends to a cheque save that the order is drawn on a bank. Undoubtedly one could give directions to a bank orally to make payments out of an account to a specified person and, if the bank was satisfied to act on oral instructions this might well be an effective direction, but that direction would not be a bill of exchange or a cheque as it was not in writing.

There is nothing in the 1997 Act which changes the inherent nature of the consent actually given by the Compellability Committee. Indeed in the very nature of a committee the decision must be made in the first place orally then subsequently reduced to writing. There is necessarily a two stage process - a consent and a reduction to writing. However, it seems to me that subsection 9 of s .3 gives even stronger support to the Appellants. It certainly establishes that the purpose of reducing the consent to writing is to create a document which will be prima facie authority for the committee to which it is given. What is specific in the subsection is that the writing is prima facie evidence of the consent. If it is prima facie evidence of the consent then the writing itself is not the consent but merely confirmation that the consent was indeed given. That seems to me recognition of the fact that the material consideration is the availability of consent and the purpose of the document in writing is to prove - where it may be necessary to do so - that the consent does exist. But that is only a matter of proof. Consent either does or does not exist. In my view the consent did in fact exist at the time in which the subcommittee purported to give directions in reliance upon it.

I believe, therefore, the Oireachtas does have the requisite power to set up the subcommittee to conduct the proposed inquiry. I do anticipate immense practical difficulties in conducting such an inquiry in accordance with the requirements of natural justice and fair procedures. However, that defect is not inherent in the nature of the inquiry itself and it would be premature to express any opinion at this stage as to whether the difficulties which I foresee will be overcome. I would allow the appeal in its entirety.

This is an appeal from the judgment and order of a divisional court of the High Court in proceedings in which the Applicants/Respondents (hereafter Respondents) successfully challenged the establishment and conduct of a parliamentary inquiry by a joint sub-committee of the Oireachtas known as the " sub-committee on the Abbeylara incident " hereafter 'the sub-committee'. At the time of the commencement of these proceedings the inquiry being conducted by the sub-committee concerned the circumstances and events which occurred at Abbeylara, Co. Longford on 19th and 20th April, 2000 which culminated in Mr. John Carthy, who was armed with a shotgun, being shot dead by the Garda Síochána. All of the Respondents are members of the Garda Síochána who had been required to attend before the sub-committee for the purpose of giving evidence concerning these matters, some of whom were directly involved in the events including the member who shot Mr. Carthy.

The sub-committee was formed by a joint committee of the Oireachtas known as the "Oireachtas Joint Committee on Justice, Equality, Defence and Women's Rights" hereafter ' The Joint Committee'. All of the Appellants, with the exception of the last two, are members of the Joint Committee, the first seven of whom are also members of the sub-committee.

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

The sequences of events and facts concerning the establishment of the sub-committee, the procedures which it adopted and followed in proceeding with its inquiry as well as the submissions and arguments of the parties have been helpfully set out in detail in the judgment of the Chief Justice.

As is reflected in the various orders made by the Divisional Court the Respondents relied to a significant extent on the contention that there were procedural defects and a want of fair procedures in the establishment and conduct of the inquiry by the sub-committee which were fatal to its legal status and its power to proceed further with the inquiry. However, there is a much more fundamental issue raised in these proceedings which concerns the contention of the Respondents that the Oireachtas had no power, deriving from the Constitution or statute, to establish a committee to conduct an inquiry of the nature which the sub-committee was conducting in this case. The Respondents succeeded on this point also in the High Court which is reflected in paragraph 1 above of the order of the Divisional Court. The Appellants for their part, in appealing against the findings and order of the High Court, contend that the power of the Oireachtas to establish a committee to conduct such an inquiry is an inherent power deriving from the constitutional role and functions of the Oireachtas as the National Parliament established by the Constitution.

It is not in issue that the Houses of the Oireachtas have the right to inform themselves on matters relevant to their parliamentary functions and to conduct, or authorise committees of the Oireachtas to conduct, inquiries for that purpose. What the Respondents have objected to is the extent or ambit of the powers of the sub-committee in this case. It is submitted that in so far as the sub-committee has considered itself entitled to make findings of fact or express opinions adverse to the good name, reputation and/or livelihood of persons not members of either House of the Oireachtas the establishment of the committee is ultra vires the power of the Oireachtas to do so.

Before considering whether the powers being exercised by the sub-committee are powers which are inherent to the Oireachtas I think it is important first of all to examine the nature of the inquiry being conducted by the sub-committee in this case, having regard to the powers which it is seeking to exercise.

Leaving aside for the present any issue as to whether the powers conferred on the sub-committee were properly so conferred the actual powers conferred or which the committee purported to exercise are not really an issue. On the question of inherent jurisdiction the issue between the parties focuses on the consequences which flow from the conferring of such powers on the sub-committee. Thus the powers which were conferred or which it was purported to confer, on the sub-committee included the following:-

I do not think it is necessary for present purposes to describe in detail the source of these powers since these are set out comprehensively in the judgment of the Divisional Court. In summary the powers were conferred on the committee by virtue of the Order of the Joint Committee establishing it and in particular sub-paragraph (e) of that Order, the resolution of both Houses of the Oireachtas of 4th April, 2001 granting it power to sent for persons, papers and records and the amendment to its terms of reference made by the Joint Committee on 12th April, 2001. The sub-committee applied to the Compellability Committee pursuant to section 3 of the Committees of the Houses of the Oireachtas (Compellability, Privilege and Immunities of Witnesses) Act, 1997 for the grant of a consent to the sub-committee to give directions and exercise compellability powers. In doing so it applied expressly pursuant to Rule 14 of the Rules and Guidelines for Committees in relation to the conduct of proceedings "which may give rise to findings of fact or conclusions which could adversely affect or impugn the good name of any person". In that application the sub-committee expressly referred to its work as one which would "include making such findings of fact as are necessary to enable the sub-committee to reach conclusions and make recommendations." The consent which was ultimately granted by the Compellability Committee stated, inter alia , that such consent was granted "for the express purpose of permitting the sub-committee on the Abbeylara incident to inquire into the said incident and related matters and to address such possible conflicts of fact as, in the opinion of the sub-committee on the Abbeylara incident, arise directly or indirectly from oral or documentary evidence; ".

Although I have not set out in complete detail all the powers of the sub- committee the foregoing are the core powers which the committee exercises for the purpose of conducting its inquiry and drawing up its final report. I think it is also relevant to note that according to the Order establishing the sub-committee it reports to the Joint Committee which established it. Pursuant to section 13(2) of the 1997 Act the Joint Committee would be under a duty to, " in so far as is reasonably practicable, conduct its proceedings and perform its functions in accordance with any rules and guidelines ..." made under subsection 1 of section 13. In July 1999 rules and guidelines were adopted pursuant to subsection 1. Rule 13 of those guidelines provides that where a committee receives a report from a sub-committee which it appointed it may accept, reject or refer back the report. In case the committee accepts the report the rule acknowledges the power of the committee to add recommendations and in this regard expressly provides " provided that, in accepting a report, the committee may add to it in so far as the additions constitute recommendations arising from facts found or opinions expressed in the report". It would appear, therefore, that the Joint Committee would be bound by any facts found or opinions expressed in the report of the sub-committee for the purposes of making any further recommendations of its own.

I would recall at this point some of the issues which the committee itself states that it intends to address in the inquiry. These are set out in the Statement of Issues submitted by the sub-committee to the Compellability Committee in its application for a consent pursuant to section 3 of the 1997 Act. It is described as a preliminary list of issues and not intended to be exhaustive. The Chief Justice has referred to the statement of issues in some detail and they include such issues as " the effectiveness/appropriateness/reasonableness of the Garda operation" ; the amount of force used, the possible use of "less than lethal weapon" and the statement makes specific reference to general findings of fact and conclusions as well as recommendations for the future.

What emerges from the foregoing is that a sub-committee of the Oireachtas has great and comprehensive powers to require citizens, who are not members of the Oireachtas, but whose actions or knowledge of facts are deemed by the committee to be relevant to the subject matter of their inquiry, to appear before it in public session, to answer to the sub-committee and to answer any allegations, however grave, made against them concerning their personal conduct. Persons called to attend are free to make such allegations of a grave nature against any other person with complete immunity, subject only to control by the sub-committee.

Moreover, the scope for an Oireachtas committee to make findings of fact or reached conclusions on any issue of fact or matter involving the culpability or reputation and good name of a citizen affected by the inquiry appears to be unlimited, and certainly appears to have been treated as so by the sub-committee in this case, once those matters fall within the ambit of the inquiry being conducted.

This is exemplified by the assertion of counsel for the sub-committee before the High Court and repeated before this Court that it would be entitled to make a finding of " unlawful killing" on the part of an individual member of the Garda Síochána.

As Mr. Justice Hardiman points out in his judgment this would in effect mean that the sub-committee could arrive at a conclusion that the individual garda member who fired the fatal shot which killed the late Mr. John Carthy had committed an unlawful homicide. If such a conclusion were reached it would, to put it no higher, be the formal opinion or conclusion of the committee albeit without any effect in law as to his legal culpability for any offence. I will give further consideration to the implications of this kind of finding later.

For the moment it is sufficient to note that a common thread in the case made on behalf of the Appellants is that once a committee of the Oireachtas has been duly established to inquire into any matter of public importance (and is, in the submission of the Attorney General, doing so for a purpose connected with the constitutional role of the Oireachtas) it may reach any finding or conclusion, to be published formally as part of its report, that a citizen has committed the gravest of wrongdoings.

Of course the Appellants have contended in these proceedings that all these powers, including those entitling an Oireachtas committee to make findings of fact or at least reach conclusions, are necessary and inherent in the Oireachtas if it is to properly fulfil its constitutionally conferred functions. The Respondents for their part state that they have no objections to an inquiry having powers of this nature provided it was an inquiry which was independent of the political process such as a Tribunal of Inquiry established under the Tribunals of Inquiry Act, 1921 as amended. The objections of the Respondents to an Oireachtas committee having such wide ranging powers focuses, in this context, on the fact that members of the Oireachtas have a day to day political role and the absence of any express power in the Constitution conferring on them powers to make individual citizens answerable to them to that extent and in that manner. One of the central contentions on the part of the Respondents is that the exercise of such powers may affect the constitutional rights of individual citizens, in particular their right to a good name, and that the Oireachtas, through such committees, has no power to compromise or injure such rights in the absence of any express power in the Constitution. The Appellants on the other hand, and in particular the Attorney General, as part of their submissions have submitted that the findings or conclusions of a committee of inquiry of the Oireachtas are no more than expressions of opinion and do not determine legal rights or obligations.

Counsel for the Attorney General emphasised that the views of any parliamentary committee have no legal effect and constitute no more than the opinions of the committee members about the facts examined by them. The other Appellants concurred in this approach. It was submitted that the opinions or conclusions of a parliamentary committee are sterile of legal effect and do not involve the determination of any rights or liabilities of individuals.

It is common case that the conduct of a parliamentary inquiry of the nature in issue here does not constitute an 'administration of justice' within the meaning of Article 34 of the Constitution no more than does a Tribunal of Inquiry established under the 1921 Act. The Attorney General took issue with the conclusions of the High Court in its judgment that the potential factfinding aspect of a parliamentary committee's powers constituted an 'adjudication'. Counsel for the Attorney General drew attention to the distinction drawn by Hamilton C.J. in Haughey v. Moriarty [1999] 3 IR 1 between 'trial and adjudication' on the one hand and 'inquiry' on the other. Counsel also relied on dicta of Hederman J. and McCarthy J. in their respective judgments in Goodman (No. 2) v. Hamilton [1992] 2 IR 542 when they distinguished 'trial and adjudication' and inquiry. It was submitted that the learned High Court judges erred in law to the extent that they relied on the concept of " adjudication" as characterising the process of inquiry and the reaching of conclusions which is carried out by a parliamentary committee of inquiry. In support of its submission along the same lines counsel for the committee relied on the statement of Murphy J. in Lawlor v. Flood [1999] 3 I.R. 107 concerning the nature of the findings of a statutory Tribunal, " it must be remembered that the report of the Tribunal while it may be critical and highly critical of the conduct of a person or persons who give evidence before it is not determinative of their rights. The report is not even a stage in a process by which such rights are determined. The conclusions of the Tribunal will not be evidence either conclusive or prima facie of the facts found by the Tribunal."

In one sense I agree with the submissions made on behalf of the Appellants in this regard. If " adjudication" is used in the sense that it means a judicial act which can only be validly performed by judges it is not a correct term to characterise the functions exercised by a parliamentary committee of inquiry or indeed the powers exercised by a Tribunal of Inquiry as the authorities cited demonstrate. Nor would it be a correct characterisation if it were intended to mean that legal rights of parties or as between parties were determined with legal effect.

I am not satisfied however that the Divisional Court of the High Court used the term adjudication in either of the foregoing senses when it referred to the adjudicative functions of the sub-committee. I am unable to interpret the High Court judgment as meaning that the findings of fact or conclusions or opinions of the sub-committee were to be treated as if they had a binding effect similar to a judicial act. In that judgment it used phrases such as " this power of adjudication" , " issues of fact requiring adjudication" , " adjudicative jurisdiction of the type which is sought to be exercised here" , " inherent power of the type contended for" . In using the terms adjudication or adjudicative I think the High Court was doing no more than referring to the substance of the powers which the sub-committee actually seeks to assert and use and was not treating or characterising them as having legal effect or capable of determining their legal rights as such. If the term adjudication has in its primary sense judicial connotations it seems to me that it was used in the High Court in a secondary sense as referring to the power of the sub-committee, when faced with a conflict of fact, to adopt or accept certain facts as being correct and making findings accordingly.

In any case whatever the merits of the argument concerning the use of the term adjudication the fact remains that the case made by the Respondents in the High Court and in this Court is based on the de facto powers which the sub-committee asserts it is entitled to exercise and the extent to which their exercise, particularly as regards findings and conclusions, may in reality affect their rights. The case is not based on the premise that any findings, conclusions or opinions reached by the sub-committee have binding legal effect.

Of course the Attorney General and the other Appellants go further than saying that the use of the term adjudication was inappropriate and a misconception as to the role and functions of the sub-committee. On the substantive point it was submitted that because the conclusions or findings of a parliamentary committee represent no more than the opinion of that committee, its power to make findings of fact should not be considered as an infringement of rights even where they are adverse to the good name or reputation of an individual. This submission was allied to other submissions to the effect that the powers were not unlimited since they had to be exercised for legitimate purposes and proportionately. It was also submitted that the exercise of such powers of inquiry by a parliamentary committee with full respect for the principles of natural justice and fair procedures constituted a fair and proper balance between the right of the Oireachtas to conduct inquiries and the protection of a citizen's good name. However, I will come to these latter points later. What I wish to consider here is the manner or extent to which such an inquiry and its findings may affect rights.

In the light of the powers of the committee I do not think it can be gainsaid that its findings, however they are characterised, can affect rights. Indeed the whole raison d'etre for specific measures designed to ensure fair procedures, such as the right to be represented and to cross-examine witnesses, is to enable persons, whose conduct or actions are the subject of such an inquiry, to defend themselves where their rights, such as a right to a good name, may be affected. It was accepted by Mr. McGuinness, S.C. counsel for the Attorney General, that a witness before the parliamentary inquiry could have his good name and reputation affected by its findings. Ó Dálaigh C.J. in In re Haughey (at 264) stated:-

In that judgment the former Chief Justice also expressed the view that where the conduct of a witness before such a tribunal is a subject matter of the committee's examination such a person cannot be regarded as a mere witness but should be more properly considered as a party. Moreover, in Redmond v. Flood [1999] 3 IR 79 Hamilton C.J. observed:

Those judicial observations concerning the manner in which rights may be affected apply with equal force to a public inquisitorial inquiry such as that being conducted by the sub-committee. They reflect the realities of any public inquisitorial process which may lead to findings or conclusions of personal culpability adverse to their good name on the part of citizens particularly for matters, which in a court of law, would be considered civil or criminal wrongs. These realities of what a witness in a public inquisition may face are also reflected in the observations of Chief Justice Warren in Watkins v. United States (354 US 178 at 197):

I find reliance on the distinction that the findings of the sub-committee would only be of " sterile legal effect" or constitute " opinions" irrelevant. They would be relevant if the issue was whether the sub-committee was engaging in a process which constituted the administration of justice within the meaning of Article 34 of the Constitution. That is not the case.

As Max Weber has observed every institution deploys its mana and charisma. The Houses of the Oireachtas derive their authority and standing from the Constitution as the core elements of the Oireachtas as an institution. An inquiry conducted by members of the Oireachtas on its behalf deploys a concentrated authority that derives from its role as one of the great organs of government established by the Constitution. A committee of the Oireachtas acting under the aegis of that authority and exercising extensive and magisterial, in a non-judicial sense, powers can make an enormous impact on the name and reputation of citizens against whom it makes findings of wrongdoing which, in a court of law, would constitute civil or criminal wrongs. Should the sub-committee in this case proceed to find that an individual garda or gardaí had participated in an unlawful killing it could only have devastating impact on the professional and personal reputation of those concerned even in the absence of legal effect.

It is manifest that a power of an organ of State to take away the good name of any citizen is one of a very grave import and directly affects rights. The right to a good name is expressly acknowledged in Article 40.3.2 of the Constitution which requires the State, by its laws, to protect and vindicate the good name of every citizen. This is also a fundamental right long recognised by the common law. Blackstone in his commentaries, 1765 states:

The conduct of an inquiry under the aegis and authority of the Oireachtas which may affect the constitutional right of an individual citizen to his or her good name can only be considered as the purported exercise of a governmental power, within the meaning of Article 6 of the Constitution, conferred on the legislature.

It is in the light of the extent and import of the powers being exercised by the sub-committee that the question as to whether the Oireachtas enjoys such inherent powers under the Constitution to make citizens answerable to it in this manner and to this extent.

It is common case that there is no provision in the Constitution which expressly authorises the Oireachtas to conduct inquiries of the nature being undertaken by the sub-committee. The appellants argue the power must be implied. It is submitted that it ought to be implied because the exercise of such a power is inherent to the proper functioning of a representative parliament.

I think it might be as well to emphasise that it is not relevant to the issues which the Court has to try whether it is desirable that the Oireachtas should have such powers. The question is rather whether the people, in enacting the Constitution of 1937 conferred powers on the Oireachtas inherent in which is the power to conduct an inquiry of the nature in issue in this case.

Accordingly, the submissions of the Attorney General, to which the other Appellants subscribed, focus inevitably on the provisions of the 1937 Constitution. Either the power to conduct inquiries of this nature by a committee of the Oireachtas is inherent in those provisions or it does not exist at all. The Attorney General submitted that the role of the Oireachtas goes far beyond that of a mere legislative organ. In addition to legislating, the duties of the Oireachtas include such matters as the control and scrutiny of national expenditure and taxation, criticism of national policy, scrutiny of central administration and to a limited extent at least, procuring the redress of individual grievances, for example, through the use of parliamentary questions. A core function of the Dáil is to hold the Government answerable to its members and it has the power to dismiss the Government. The Attorney General made particular reference to Article 6 by which powers of government, including legislative, are exercisable by the organs of State established by the Constitution, Article 15 which governs the constitution and powers of the National Parliament, Article 16.2.1 which provides for the representative nature of Dáil Éireann and Article 17.7.1 which provides for the presentation to Dáil Éireann of the annual Estimates of receipts and expenditure of the State in any financial year. Reference was also made to Article 28.4.1 according to which the Government shall be responsible to Dáil Éireann. In summary the Attorney General submitted that the Dáil had three essential functions which were (a) legislative; (b) accountability of the Executive and (c) control of public expenditure. The Senate shared with Dáil Éireann the legislative role. It was submitted that constitutional functions, in particular the legislative function, necessarily included and required a power to investigate matters relevant to the exercise of those functions. Indeed the Attorney General submitted that the power of the Oireachtas to conduct inquiries was limited to inquiries conducted for the purposes of those functions. Mr. Shatter in his submissions goes further and says that the inherent power to inquire is not so limited but relates to any matter of urgent public importance. Article 15, in particular Article 15.10 recognises that freedom of debate is an essential element in the exercise of parliamentary functions and that Articles 15.12 and 15.13 in conferring a number of privileges on the individual members of the Houses strengthen and protect that freedom of debate. In substance the Attorney General submitted that the members of the Oireachtas have a right and a duty to inform themselves on all matters relevant to the exercise of their function. A parliamentary inquiry is not an end in itself but rather is a process designed to feedback into the general parliamentary processes. The issue, it was submitted, was not whether there was any power of inquiry inherent in the Oireachtas but the extent of such a power of inquiry. The High Court held the inquiry be conducted in this case to be invalid by reference to the sole criteria that it was liable to adversely affect the good name of third parties.

There is a good deal of substance in the approach adopted by the Attorney General and the other Appellants in this regard not all of which is disputed by the Respondents. It does seem trite to say that members of the Houses have a right and indeed a duty to inform themselves of any matter which is relevant to their functions. Individual members may inform themselves by recourse to the views of constituents, expert reports, matters published in the media and the like. Collectively the Houses may keep themselves informed by recourse to similar sources of information and it is not uncommon for Ministers to place in the library of the Houses of the Oireachtas the reports of experts or inquiries relevant to legislation being introduced. It almost goes without saying that the Constitution should not be interpreted in a manner which is unduly restrictive of the functioning of either House of the Oireachtas. The Constitution is not only about rights but about liberties. There is nothing in the Constitution which would prohibit a local committee or indeed a committee of virtually any kind from conducting an inquiry into a matter which it considered worth inquiring into. The capacity of such committee to conduct an inquiry does not have to be derived from any express or inherent power conferred by the Constitution. It is simply something which they are not prohibited from doing. Of course, apart from any internal rules, such a committee would have to act within the law and would be liable for any defamatory statements which it made not enjoying the immunity which members of the Oireachtas enjoy under the Constitution. I think the Attorney General is correct when he submits that there is nothing in the Constitution to inhibit or prohibit the Oireachtas from conducting or initiating inquiries as such . The fact that the Houses of the Oireachtas may conduct or initiate inquiries to obtain information or ascertain facts does not derive from an inherent power peculiar to its role and function as a representative democratic parliament although its desire to do so in any particular case would indeed be related to such functions. But once an inquiry is conducted within the law and the Constitution it seems to me it is axiomatic that the National Parliament, like many other even private bodies, may conduct an inquiry for their own purposes. It is not restricted from doing so.

The freedom to inquire and be informed on matters relevant to the exercise of their functions by members of the Oireachtas is in a sense neutral, once it does not impinge on the rights of third parties or the functions of other constitutional organs such as the courts.

But the Houses of the Oireachtas are creatures of the Constitution. That is their sole source of governmental authority which, according to Article 6 of the Constitution, is derived from the people. If it acts so as to affect the rights of citizens this cannot be compared to a simple search for knowledge. If an organ of State acts so as to affect the rights of citizens it can only be justified in doing so pursuant to a governmental power conferred on it by the Constitution. When the Oireachtas exercises its authority in a manner which may affect the rights of others it acts with the aura and authority of a constitutional organ of State. To adjudicate, in the sense that the term is used here, on the culpability of citizens in their conduct cannot in my view be equated with the everyday search for knowledge of facts or expert opinions. That is a governmental power which it seems to me can only be exercised by virtue of power conferred by the Constitution.

Accordingly, different considerations must arise when the Houses of the Oireachtas assert a constitutional power to embark upon an adjudicative process, in the secondary sense, which has as one of its objects or functions to make findings of fact or reach conclusions which may impugn the good name of a citizen. As I have already pointed out earlier in this judgment this is a very great power capable of affecting the rights of citizens with potentially disastrous consequences. I would note in passing that the courts themselves do not have such an extensive power there being no investigatory role attributed to them.

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

The task of the court is a cognitive one. It is to ascertain whether there has resided in the Constitution an inherent power of the Oireachtas to conduct inquiries which may lead to adverse findings impugning the good name of a citizen. It is an interpretation which must be mandated by the Constitution. The question must also be approached in the light of other rights, in particular Personal Rights, guaranteed and protected by the Constitution as well as concurrent powers of the Oireachtas.

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

This is a specific and express power conferred on each House to govern the conduct of its own members, to determine when those members have been in breach of its rules and standing orders for the purpose of imposing penalties for their infringement. The standing orders of each House make provision for the suspension of a member of the House for a specified period by reason of a breach of rules or standing orders. It too is a potent power and may affect the rights of members to participate and vote in proceedings in each House. It may also confer upon each House the right to make adverse findings against any person or persons interfering with, molesting or attempting to corrupt its members although the ambit of this power was not really debated in the course of these proceedings. The Article nonetheless is one by which express powers are conferred.

Pursuant to Article 12.10 the President may be impeached for stated misbehaviour. A charge of stated misbehaviour may be preferred by either House of the Oireachtas and the other House is under a duty " to investigate the charge, or cause the charge to be investigated". Article 13.8.2 provides:

Article 33.5. provides for the removal of the Comptroller and Auditor General for stated misbehaviour upon resolutions passed by Dáil Éireann and Seanad Éireann. Similarly, Article 35 provides for the removal from office of a judge of the Superior Courts for stated misbehaviour upon resolutions being passed by both Dáil Éireann and Seanad Éireann calling for his or her removal.

All of these provisions confer express powers on the Houses of the Oireachtas to make findings of culpability on the part of persons who occupy the offices concerned.

These provisions were relied upon to a greater or lesser extent by the Appellants to demonstrate that the role and functions of the Oireachtas extend beyond a mere legislative function. This they undoubtedly do. However, they also throw in relief the stark silence of the Constitution on the attribution to either House of the Oireachtas a power to investigate and making findings of culpability for wrongdoing on the part of citizens, who fall outside the ambit of those provisions, and thereby impugn their good name or reputation.

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

The fundamental and intrinsic value of the right to one's good name and reputation, long recognised by the common law, is expressly raised to constitutional status by Article 40. As I have already pointed out the Constitution was drafted and adopted so as to give express powers in specific circumstances to the Houses of the Oireachtas to make findings of culpability of certain persons or officeholders for wrongdoing which would inevitably have the gravest consequences for their good name and reputation. The contrasting silence of the Constitution on the question of a power vested in the Houses of the Oireachtas to exercise its authority so as to make findings of fact involving personal culpability for wrongdoing, in this case one of unlawful killing, on the part of individuals so as to impugn their good name and reputation, is one reason why I cannot conclude that the existence of an inherent power is mandated by the terms of the Constitution itself.

Certainly, the Appellants have argued that the right to a good name is not absolute and that the procedures according to which the sub-committee is conducting its inquiry provide ample means to any person concerned in the inquiry to defend and vindicate his or her good name. Accordingly, it was submitted, an appropriate balance had been struck between the right of the Oireachtas to conduct inquiries and the right of an individual to protect his or her good name.

While it may indeed be that the right to a good name is not an absolute right in all circumstances a fundamental flaw in this argument is that it necessarily assumes the existence in the first place of a right to conduct such an inquiry and making findings impugning the good name of an individual, such as by a finding of unlawful killing. Fair procedures are self-evidently a procedural matter. There must first of all be an inherent power to conduct an inquiry of such a nature. It is only when there exists a power to conduct an inquiry or a hearing as to the culpability of an individual that procedural questions concerning the fairness of the proceedings and the rights of the parties which may be affected by such a hearing arise. Similarly, the principle of proportionality, referred to by the Attorney General in his submissions, arises when there are competing rights, in this context, a competing right of the Oireachtas to conduct an inquiry of this nature and the right to a good name. Merely establishing fair procedures to be followed in the exercise of a particular power does not create that power itself. Fair procedures apply to the exercise of an existing power. In short, just as the passing of an Act for the purpose of regulating the exercise of an alleged power cannot be used as evidence of the existence of such a power, as Geoghegan J. observes in his judgment, neither can the provision of fair procedures be evidence of it’s existence.

It was argued by the Appellants that the judgments in In re Haughey [1971] I.R. 217, which was concerned with the inquiry being then conducted by the Public Accounts Committee laid down principles according to which fair procedures should be observed in the conduct of that inquiry. The Appellants relied on this judgment as authority for the proposition that the Oireachtas does have power to establish committees to conduct inquiries of the nature in question here. This argument was addressed by the Divisional Court in the following manner:

I entirely agree with this conclusion. In that case the issue or implications of an express or inherent power of this nature residing in the Oireachtas was neither raised nor addressed.

There are further considerations which lead me to conclude that the Constitution of Ireland does not permit let alone mandate that there is to be found in its provisions an unexpressed inherent power of the Oireachtas to conduct inquiries of this nature concerning the personal culpability of individuals leading to findings which may impugn their good name.

Committees of inquiry are, by virtue of their role and function, part of the political process. Evidently, they are composed of public representatives answerable to their constituents, public opinion and with a day to day interest in the cut and trust of everyday politics. I do not say that a public representative by virtue of his or her political role is incapable of acting fairly and objectively. Nonetheless there is the underlying fact that they each have an ever present interest, from one perspective or another, in the political issues of the day including the ever present one of the standing or otherwise of the Government in office and its Ministers. Constitutionally the Government is answerable to members of the Dáil and in a different, but substantive way, may be the subject of support or opposition by members of the Senate. Unlike other forms of enquiry Oireachtas Committees are not independent of the political process. The question arises whether the Constitution, although silent on the matter , intended that personal culpability of citizens for serious wrongdoing with consequential implications for their good name should be decided in the course of an enquiry which was part of the political process. The risks inherent in such a process were adverted to in the document prepared by the Office of the Attorney General (which was submitted to the Court) and contained in the Comparative study into Tribunals of Enquiry and Parliamentary Inquiries published by the Committee of Public Accounts of Dáil Éireann. In that document it was stated:

Somewhat similar concerns, although from a different perspective, were echoed in the affidavit of Mr Sean Cromien filed in these proceedings. Mr Cromien is a person of great experience in the functioning of Government and the Oireachtas and has a distinguished reputation as a former Secretary of the Department of Finance. At paragraph 14 of his affidavit he makes the following comments on the functioning of parliamentary committees:

Mr Cromien’s observations seem to me to underline the necessity of taking into account potential and inherent frailties in such a parliamentary system of inquiries when considering whether it is likely that the Constitution contemplated such a system.

Perhaps I should emphasise that I am not concerned here with any question of objective or structural bias which would exclude the possibility of such powers of inquiry being attributed to members of the Oireachtas but rather whether, in the absence of an express provision, such a far reaching interpretation can be implied as being inherent in the Constitution.

However the foregoing extracts demonstrate that there is at least a real risk that the integrity or objectivity of parliamentary inquiries could be compromised by purely political considerations. It was the reality of such frailties that brought the parliamentary committee system in Britain into disrepute. It is difficult to imagine that the framers of the 1922 Constitution would not have been aware of this factor. Nor could one suppose that it was not considered by the drafters of the 1937 Constitution. The views expressed in the document of the Office of the Attorney General appears to envisage that in certain circumstances, particularly where there is the risk of bias or of a parliamentary committee being perceived as being open to political bias, that the Oireachtas, in the exercise of its own discretion, would resort to the option of an independent statutory tribunal in lieu of an inquiry conducted by a committee of the Oireachtas. I find it highly improbable that the Constitution was intended to confer an inherent power of this nature on the Oireachtas without expressly doing so or that, in the face of potential frailties to which the two texts which I have just cited refer, it would have been impliedly left to the Oireachtas to exercise its own exclusive discretion as to whether an inquiry which may result in findings of fact impugning the good name of a citizen should be conducted by an Oireachtas Committee or an Independent Statutory Tribunal.

Neither can one ignore the fact that as and from the enactment of the 1922 Constitution and before the adoption of the 1937 Constitution the Oireachtas did have at its disposal means by which inquiries of this nature could take place, on its initiative, which were independent of, as one American Judge put it, “the turbulent world of politics”. In Haughey v. Moriarty Hamilton, C.J. observed “There are various models which may be availed of by the Oireachtas and the executive in the form of commissions or committees, in the latter case either within the Oireachtas or external to it for the purpose of advising them as to the desirability of legislation on particular topics. The essential purpose, however, for which a tribunal is established under the Act of 1921 is to ascertain the facts as to matters of urgent public importance which it is to inquire into and report those findings to parliament or the relevant minister” later in the same judgement Hamilton, C.J. went on to say “ the underlying policy of the Act of 1921, as subsequently amended, is thus not in doubt, it is to provide the machinery, wholly independent of the political process whereby matters of grave public concern may be investigated and the true facts brought to light”.

Hamilton, C.J. preceded the foregoing statements by citing from a report of a Royal Commission of Tribunals of Inquiry, 1966, in the United Kingdom, known as the Salmon Report. The passage which he cited from that report was as follows:

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

The High Court in its judgement cited other extracts from the Salmon Report and they are also cited in the judgements of my colleagues Geoghegan, J. and Hardiman, J. For the sake of brevity I will not repeat them here but any historical review of the role of parliamentary committees of inquiry in the United Kingdom, as those judgments demonstrate, leads to the conclusion that they had notoriously fallen into disrepute by 1921. It is difficult to envisage then that the Constitution of 1922 or that of 1937 would, silently, ordain that the Oireachtas should have power to establish and conduct inquiries and make findings as to the personal culpability of individual citizens for serious wrongdoing.

As I have pointed out earlier when the Constitution gave specific and special powers to the Oireachtas to adjudicate on the conduct of its own members and on other persons and office holders who were not members it did so explicitly. I think it can be fairly said that if the Constitution intended to confer far reaching powers on the Oireachtas to inquire and make findings of fact or express opinions as to the personal culpability of individual citizens for serious wrongdoing it would have also done so in an explicit manner.

Furthermore, not to confer such powers is entirely consistent, to my mind, with the existence of a power on the part of the Oireachtas to initiate a tribunal of inquiry pursuant to the 1921 Act. The Oireachtas was not left without the means of taking steps to ensure that any matter of public importance be the subject of a comprehensive and far reaching enquiry, albeit independent of the political process.

Article 15.12 of the Constitution accords privilege to all utterances of members of the Oireachtas made in either house relying on this article it was argued on behalf of the Appellants that is was open to any member of the House to make statements, even of the most grave kind, impugning the good name and reputation of any citizen. This could be done under the protection of privilege and immunity accorded to Members by the Constitution. It was submitted by the Appellants that to call in question the powers of the subcommittee to conduct the inquiry on the grounds that the good name of the Respondents could be impugned served little purpose if their good name could be equally impugned as individuals in a public debate under the privilege of the Dáil or Senate chamber. I do not consider this argument to be well founded. First of all, we have here again an express immunity conferred on the Members of the Oireachtas in specified circumstances, that is to say, utterances made in either chamber. This contrasts with the inherent but silent power argued for by the Appellants. In any case the obligation to protect and vindicate the good name of every citizen is imposed on the State which includes all organs of State. Although Members of the Oireachtas are expressly privileged from being answerable for what they state in the Dáil or Seanad they are not relieved from their positive obligations to respect the rights of citizens. No doubt it is for this reason that Dáil Éireann in its own standing orders regulates the manner in which deputies may use the privilege of the House. Order 58 exposes a deputy, who makes an utterance of a defamatory nature concerning any individual in the House to the risk of being disciplined for an abuse of privilege. In certain circumstances the deputy may be required to withdraw the allegation made or the matter may be referred to the committee on procedures and privileges. I do not consider it necessary to refer to Order 58 in detail. Suffice it to say that I do not consider that the privilege enjoyed by Members of the Oireachtas in respect of their utterances can be considered as a source of implied powers for committees of inquiries established by the Oireachtas.

The exercise of all governmental powers in the name of the State, by which ever organ of government is called upon to exercise them, can only be exercised by virtue of the Constitution of Ireland. In Buckley and Others (Sinn Féin) v. Attorney General and Another [1950] IR 67 at 81 the former Supreme Court held:

The Appellants sought to establish that in distributing powers of government among the various organs of state the Constitution conferred an implied or inherent power on the Oireachtas to conduct inquiries which may make findings or reach conclusions impugning the good name of the citizens. For the reasons stated above, in particular having regard to the express powers actually conferred on the Oireachtas and the specific protection afforded to the good name of the citizen by Article 40, I conclude that had it been intended that the Oireachtas, as part of the political process, should exercise such far-reaching powers of inquiry the Constitution would have explicitly said so. I do not find in the provisions of the Constitution itself any basis for concluding that the existence of an inherent power to conduct such inquiries is either an appropriate or mandated interpretation.

By way of addendum I would recall that the document prepared by the Office of the Attorney General referred to above drew a particular distinction between a Parliamentary Inquiry in which an allegation of wrongdoing against a person is being investigated and those in which issues of a broader nature are considered. In the circumstances of this case we are only concerned with an inquiry which may make findings of personal culpability impugning the good name of an individual citizen. I do not see any reason why the Oireachtas cannot conduct inquiries of the nature which they have, for practical purposes, traditionally done, including inquiries into matters concerning the competency and efficiency in departmental or public administration as well as such matters as those concerning the proper or effective implementation of policy, and to make findings accordingly. Also, in the case of a particular office holder, such as the chief executive of a semi-state body, who is by virtue of his appointment, whether by statute or contract, answerable to the Houses of the Oireachtas different considerations arise and I do not consider that the order proposed to be made by this Court affects such a situation.

Furthermore, as Mr. Justice Hardiman illustrates in his judgment in considering the New Zealand experience it is possible for a parliamentary committee to conduct an indepth investigation of a large police operation and make extensive findings and recommendations of great public and legislative import without the necessity of making findings of personal culpability of individual police officers.

As an aid to the construction of the provisions of the Constitution the Appellants relied on a range of statutory provisions facilitating the conduct of inquiries which, although they did not confer or purport to confer a power on Oireachtas committees to conduct the kind of inquiry in question, were nonetheless said to be evidence of the existence of such an inherent power in the Constitution. It was also argued that in so far as the Oireachtas had the power to initiate or establish tribunals of inquiry pursuant to the 1921 Act it must also have power to constitute committees of inquiries composed of its own members with the same or similar powers. I have had the opportunity of reading the judgments of Hardiman J. and Geoghegan J. on both of these submissions and the related case law. I agree with their reasoning and analysis of the law on these submissions and that they do not demonstrate the existence of an inherent power.

As a further aid to the construction of the Constitution, and they cannot be described as more than that, the Appellants relied on constitutional arrangements and powers in other countries. They confined themselves essentially to countries whose domestic legal system has its origins in the common law, although their constitutional structures may differ greatly, such as the United States, the United Kingdom, Canada, Australia and New Zealand. The principal ground upon which reference was made to the constitutional arrangements in these countries was with a view to establishing that the extensive inherent power of parliament to enquire was a necessary adjunct to a representative parliament. The popular representative parliamentary tradition is not solely the creature or tradition of countries whose internal legal system derives from the common law. No attempt was made to demonstrate that countries other than the few mentioned enjoyed such inherent powers as a necessary adjunct to the functioning of their parliaments. Constitutional structures are the product of history and tradition of each individual country often influenced by the era and climate in which those constitutional structures are established or evolve. As I have already indicated at best, as a matter of comparative law, they can only be aids in the construction of the Constitution. No doubt for this reason it was not contended by the Appellants that characteristics and powers of the Parliament of the United Kingdom were carried over into the 1922 Constitution to be subsequently reflected in the 1937 Constitution.

I will make one brief reference to the position in the United States in McGrain v. Doughtery (273 U.S. 135) Van de Vanter J., giving the opinion of the Court, had this to say:

This extract highlights a fundamental aspect of the United States experience and the constitutional interpretation given to the powers of Congress in this context. It is firmly anchored in historical experience, including those of state legislatures, before the Constitution of the Union was adopted as well as the position adopted by the framers of the American Constitution subsequently. These experiences are unique to the United States and it seems to me that judicial pronouncements have to be interpreted in the light of that experience. However , Hardiman J. Geoghegan J. have extensively and comprehensively analysed the parliamentary powers relevant to the countries concerned. Entirely agreeing with their analysis upon these matters, as I do with their judgments on the question of inherent power, it makes it unnecessary for me to travel over the same ground and repeat the same conclusions which they have so clearly exposed in their judgments. Suffice it to say that for the reasons referred to above and set out in their judgments I do not find in the constitutional arrangements of the countries concerned a basis for concluding that the inherent power argued for is one necessarily exercised by a legislature in a democratic state. Nor does an examination of their constitutional arrangements affect my view as to the proper interpretation of the Constitution of Ireland.

The Constitution delineates the democratic framework of the State. It specifies the powers which are conferred on the organs of Government referred to in Article 6, the Executive, the Legislature and the Judiciary. It protects and guarantees the fundamental rights of the citizen and in particular requires the State to vindicate the good name of the citizen.

For all the reasons stated earlier in my judgement, if the Oireachtas is to exercise the power to establish committees of inquiry so as to make findings of fact and reach conclusions involving personal culpability of individual citizens for alleged wrongdoing of the gravest kind and thereby impugning the good name of a citizen, that power must be found in the Constitution. In the absence of any express provision the Appellants have argued for an inherent power. For the reasons which I have given in my judgement and given the silence of the Constitution on the matter it would appear to me, to borrow the words of Finlay, C.J. In Web -v- Ireland (1998 IR 353 at p383) “inconsistent with the framework of the society sought to be created and sought to be protected by the Constitution” that such a far reaching inherent power be implied in the Constitution.

Because I have reached the conclusion that no such inherent power exists the Appeal of the Appellants should be disallowed and I agree with the proposed declaration and order set out in the judgement of Denham, J. In the circumstances I do not consider it necessary to deal with the other issues which were raised on the appeal no order being required in respect of them.

This is an appeal against the judgment and order of the Divisional Court of the High Court of 23rd November 2001 concerning a Sub-committee of the Joint Committee of the

Oireachtas on Justice, Equality, Defence and Women’s Rights. This Sub-committee ( “the Abbeylara Sub-committee” ) had embarked on an inquiry into the incidents which occurred at Abbeylara, Co. Longford, on the 19th/20th April 2000 and which culminated in the death of Mr John Carthy at the hands of the Gárda Siochana.

The procedures and powers of the Abbeylara Sub-committee were challenged in the High Court by a number of members of the Gárda Siochana who had been directed by the Sub-committee (pursuant to its powers under the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997 - “the 1997 Act” ) to appear as witnesses at the proposed inquiry.

At the conclusion of a lengthy and careful judgment the Divisional Court made Orders of Certiorari firstly quashing the resolution of the Joint Oireachtas Committee on Justice, Equality, Defence and Women’s Rights made on 10th April 2001 extending the terms of reference of the Abbeylara Sub-committee and secondly quashing the directions to the members of the Gárda Siochana (the Gárda Applicants) requiring them to attend before the Abbeylara sub-committe and to give evidence and produce documents. The Divisional Court also made a number of Declarations. The most far-reaching of these Declarations was the first:-

Against this judgment and these orders and declarations the Appellants/Respondents have appealed. There were three separate but related Appellants before this Court who made both written and oral submissions - the Attorney General, the members of the Abbeylara Sub-committee other than Deputy Alan Shatter, and Deputy Alan Shatter.

The Chief Justice in his judgment has helpfully set out in some detail the factual and procedural history of the Oireachtas Sub-committee inquiry into the events at Abbeylara. The Inquiry was initiated by a resolution of the Dail of 25th October 2000:-

On the same day the Seanad resolved:-

During March and April 2001 a number of amendments and extensions to these resolutions were made. These are set out in detail in the judgment of the Chief Justice. The actual Inquiry before the Sub-committee began on 24th April 2001. From the beginning queries in regard to its powers and challenges to its procedures were raised, in particular by Counsel for the Gárda Applicants, Mr John Rogers. On 26th April 2001 the Inquiry was adjourned until the following Monday, 30th April. On that day it was announced that further hearings would be adjourned for thirty days. On 21st May 2001 the Gárda Applicants initiated the present proceedings by application for leave to apply for relief by way of judicial review.

In the course both of the hearing before the Divisional Court and of the appeal to this Court a number of important issues concerning aspects of the powers and procedures of the Abbeylara Sub-committee were raised and argued. The main issue, however, was that covered in the first Declaration made by the Divisional Court. Indeed, this was the only aspect of the Order of the Divisional Court which was challenged by the Attorney General in his appeal. I propose to deal first with this main issue and subsequently to consider a number of the other issues which, although in one sense subsidiary, are also of considerable importance to the future of inquiries initiated or carried out by the Oireachtas.

The Respondents to this appeal (the Gárda Applicants) have issued a Notice to Vary which in essence deals with the question of bias. I will consider this issue towards the conclusion of this judgment.

Before embarking of any consideration of this issue I should acknowledge that I have had the benefit of reading in draft form the judgments of Hardiman J. and Geoghegan J. which I have found extremely helpful both in their analysis and in their conclusions. To a large extent I find myself in agreement with them. Where, therefore, my learned colleagues have discussed in detail a particular aspect of this question and have reached conclusions with which I agree I will not endeavour to repeat the argument on this particular aspect.

Given the declaration made at No. 1 of the Order of the Divisional Court, the issue then is whether under the Constitution the Houses of the Oireachtas jointly have the power to conduct an Inquiry, to be carried out by members of the Oireachtas itself, which is “liable to result in finding of facts or expression of opinion adverse to the good name, reputation and/or livelihoods of persons not members of such Houses.” The declaration made by the Divisional Court is in wide and general terms and for the purposes of the instant appeal it may only be necessary to decide whether the power exists for this particular Sub-committee to conduct this particular inquiry. In order, however, to reach such a limited conclusion it is, in my view, necessary to look at the question of a general power of inquiry on the part of the Houses of the Oireachtas. This must be looked at in the context of the powers of the Oireachtas under the Constitution, whether express or implied.

It is accepted by all parties that there is no explicit power given in the Constitution to the members of the Oireachtas to carry out inquires. Any such power must be inherent or implied. There is nothing wrong in principle in accepting that such powers exist. They may be compared with the implied or inherent rights which accrue to the individual citizen under the Constitution. However, such implied or inherent rights must be shown to arise necessarily either from the nature of the Oireachtas itself or from some role or task given to the Oireachtas through the Constitution.

In both the written and oral submissions made to this Court by the Appellants and the Respondents there were detailed discussions concerning the history of powers of inquiry of the Parliaments of other jurisdictions, in particular those of the Westminster Parliament and of the United States Congress. This historical and comparative aspect of the issue has been comprehensively considered by Geoghegan J. in his judgment and I am in agreement with his analysis and his conclusions.

Considerable reliance was placed in argument by the Appellants on the judgments of this Court in Goodman International v Mr Justice Hamilton [1992] 2 IR 542 and Haughey v Moriarty [1999] 3 IR 1 . Both these judgments have been fully discussed by Hardiman J. and Geoghegan J. in their judgments. I am in agreement with their conclusions and have nothing to add to their analyses of these judgments.

Both Hardiman J. and Geoghegan J. have also analysed the meaning and effect of the judgments of the United States Supreme Court, in particular Kilbourn v Thompson 102 U.S. 168 (1880), McGrain v Daugherty 273 U.S. 153 (1927) and Watkins v United States 354 U.S. 178 (1957) , which deal with the powers of enquiry possessed by the United States Congress. Again I am in agreement with both learned judges and have nothing to add on this aspect of the issue.

It seems to me, accepting this analysis, that if an inherent or implied power of inquiry exists it must be found within the four walls of Bunreacht na hEireann, as enacted by the people of Ireland in 1937 and as amended by them since that date. The powers of the Oireachtas stem, through the Constitution, from the people. The role of the Oireachtas is explicitly set out in the Constitution and any implied powers should be derived from this explicit role or, at the least, clearly and directly necessary to it.

This approach is largely accepted by the Attorney General in his submissions on the appeal (it will be recalled that his appeal is limited to the first declaration made by the Divisional Court). The Attorney General drew particular attention to a passage in the Opinion of Chief Justice Warren in Watkins v United States (at page 187) :-

The Attorney General submitted that this passage reflected his general approach to the question. The Attorney General, however, would not limit the power of inquiry as being confined to aiding the legislative power of the Oireachtas as set out in U.S. Supreme Court decisions. In our system of Government, he suggested, the Dail and Senate have a legislative function, while the Dail alone has the additional function of scrutinising the Government and holding it to account and also has a number of functions in relation to financial matters - the passing of estimates, the budget etc. The Attorney General argued that a power of inquiry should be implied in aid of any or all of these functions, but accepted that such a power would have to be proportionate both to the actual requirements of the Oireachtas and to the rights of those who are not members of the Oireachtas. As far as the Abbeylara Sub-committee was concerned, he submitted that its proposed inquiry was in aid of the Oireachtas role of holding the Government to account - the Gárda Siochana being ultimately responsible to the Minister for Justice, Equality and Law Reform, and through him to the Dail. This argument, of course, suffers from the weakness that only the Dail has the function of holding the Government to account, while the Abbeylara Sub-committee is a joint Sub-committee of both Houses. When pressed in argument, the Attorney General was reluctantly prepared to concede that the task of holding the Government to account was not proper for a joint Sub-committee and that therefore the Senate membership of the Abbeylara Sub-committee was at the least doubtful.

During the course of argument before this Court the Court was provided with an analysed list of the specific references to the role and powers of the Oireachtas as set out in the Constitution. It is useful to reproduce this list here.

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

In my view there is much to be said for the argument put forward by the Attorney General although, as I will point out later, I would further limit the type of inquiry to be carried out in aid of the functions of the Dail and Seanad. It is clear that general inquiries have in fact been carried out over the years both by Committees of the individual Houses and by Joint Committees of the Oireachtas. These inquires have in general been directed towards future legislation or possible future amendment of the Constitution. A few examples demonstrate: the Committee on the Constitution 1967, the Joint Oireachtas Committee on Marriage Breakdown 1987, the Sub-committee on Health and Smoking and the All-Party Oireachtas Committee on the Constitution. These Committees have relied on voluntary submissions and willing witnesses but there is in fact no reason why such enquiries should not use the powers of the 1997 Compellability Act to obtain necessary evidence and information. As far as the Dail’s functions in relation to financial matters are concerned the Public Accounts Committee maintains this function and was, of course, the Committee who carried out the Inquiry into Deposit Interest Detention Tax (DIRT). It would, however, be a mistake to make too direct a comparison between the DIRT Inquiry and the Inquiry under consideration in the instant case. Firstly the Public Accounts Committee is a Standing Committee of Dáil Eireann with a long established and continuing role. Under its terms of reference it is appointed to examine a report to the Dáil on “the accounts showing the appropriation of the sums granted by the Dáil to meet the public expenditure and such other accounts as they see fit...which are audited by the Comptroller and Auditor General and presented to the Dáil, together with any reports by the Comptroller and Auditor General thereon; the Comptroller and Auditor General’s reports on his or her examinations of economy, efficiency, effectiveness evaluation systems, procedures and practices; and other reports carried out by the Comptroller and Auditor General” under the Comptroller and Auditor General (Amendment) Act 1993 .

Secondly, in the case of the DIRT Inquiry the Public Accounts Committee

The Respondents argue that there is a limit to this power of inquiry. They submit that there is no inherent power to be found in the Constitution which would permit a body composed of members of the Oireachtas themselves to carry out an inquiry which purports to make “findings of fact” which would, or could, damage the good name of individuals who are not members of the Oireachtas. The Divisional Court accepted this argument and granted its declaration accordingly. The Declaration made by the Divisional Court is broad in nature and a number of Committees or Sub-committees of the Oireachtas might fall within its ambit. The issue before this Court, it seems to me, is whether this particular Sub-committee - the Abbeylara Sub-committee - carrying out the inquiry which the Sub-committee itself proposes by the means it proposes and with the end it proposes - falls within the ambit of the inherent power of the Oireachtas to acquire information in aid of its constitutional functions.

Firstly, the Abbeylara Sub-committee is a joint Committee, not a Sub-committee of the Dail. Its proposed inquiry must therefore be in support of a function which is carried out by both Dail and Seanad. This, as is conceded, albeit reluctantly, by the Attorney General, can only be the legislative function. I would reject the submission of Deputy Shatter and the other members of the Sub-committee that the Sub-committee’s powers of inquiry are virtually without limit. I would also reject his submission that the inquiry was in fact in aid of possible legislation concerning the organisation and management of the Gárda Siochana. In my view, if an inquiry is to be in support of the legislative functions of both Dáil and Seanad, its investigative and legislative aims must be clearly set out in its terms of reference.

The terms of reference of the Abbeylara Sub-committee on the other hand at no stage contained any reference to either the amendment of existing legislation or the promotion of new legislation. It might conceivably be argued that the original resolutions of the Houses, which directed the main Committee and its Sub-committee to consider the report of Superintendent Culligan and the submissions received concerning it, could be directed towards possible proposals for legislative change concerning the structure, management and control of the Gárda Siochana. It is, however, a strained interpretation and as matters developed the Sub-committee moved further away from this legislative purpose. It is abundantly clear from the statements made by the members of the Sub-committee, the powers with which they had provided themselves, and the programme which they had laid out for their inquiry, that they did not see themselves as having a legislative purpose. By no stretch of the imagination could the type of inquiry which the Abbeylara Sub-committee actually intended to carry out be described as primarily, or indeed even peripherally, directed towards producing proposals for legislation. The type of inquiry which the Sub-committee envisaged is clearly shown not only in the amended Terms of Reference and the extended powers which it acquired but also in the public statements made by its members to the media and in the very transcripts of its proceedings. The Sub-committee could not and did not, of course, administer justice, but it clearly saw itself as having an inquisitorial and adjudicative role in relation to the culpability of individuals, in particular individual Gárdai. Its self-appointed task was to find the facts and to attribute blame by way of a public and deliberately publicised procedure.

In this context I have had the advantage of reading Hardiman J’s careful analysis of the significance of the term “findings of fact” and the adjudicative nature of the Sub-committee’s role, and I agree with his reasoning and conclusions.

In argument before this Court it was submitted on behalf of the members of the Sub-committee that the term “findings of fact” used by the Sub-committee in reality meant merely “opinions” . Their findings, they argue, can be no more than “opinions” because they have no legal effect and no legal penalty follows from them. This is true, but it does not, as is pointed out by Hardiman J., mean that their findings are without effect. Their findings would be the result of an inquisitorial process, held in public, and in reality would be accepted by the public at large as being “the true facts” . This would have the power to inflict enormous damage on the individual Gárdai involved. The power of a Committee of Inquiry to damage an individual without inflicting any legal penalty was well described in the Supreme Court of the United States by Mr Justice Black in his dissenting Opinion in the case of Barenblatt v United States (360 US 109: 1958) . The Appellant in that case, Mr Barenblatt, had been summoned to testify before a Sub-committee of the House of Representatives Committee on Un-American activities, which was investigating alleged communist infiltration into the field of education. Mr Barenblatt who was formerly a graduate student and teaching fellow at the University of Michigan refused to answer questions as to whether he was then or had ever been a member of the communist party. For such refusal he was convicted of a violation of 2 U.S.C. paragraph 192, which makes it a misdemeanour for any person summoned as a witness by either House of Congress or a committee thereof to refuse to answer any question pertinent to the question under enquiry. He was fined and sentenced to imprisonment for six months. This conviction was upheld by a majority of the Court, but in a powerful dissenting judgment, in which he was joined by Chief Justice Warren and Mr Justice Douglas, Mr Justice Black drew attention to the fact that the Sub-committee in question was in fact punishing witnesses who appeared before it even though in theory their activities were without legal effect. Black J. stated (at page 153):-

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

Black J. was, of course, referring to a form of punishment which affected the constitutional rights of life, liberty or property. In Bunreacht na hÉireann the citizen is also recognised to have a right to the protection of his good name.

In his judgment Black J. also went on to hold that the problem of this type of punishment could not be resolved by offering fair procedures to the witnesses that were brought before the Sub-committee (at page 160):-

The Supreme Court Justices in the United States were referring to the notorious practices of the House Un-American Activities Committee led by Senator Joseph McCarthy and it is not suggested that the Abbeylara Sub-committee would behave with malevolence or that their inquiry is a witch hunt comparable to that carried out by the House Un-American Activities Committee. Nevertheless, their proposed “findings of fact” have immense potential to damage the good names, careers, and livelihoods of the Gárda Applicants. I accept that the Oireachtas must clearly have such powers as are relevant to and necessary for the carrying out of its constitutional functions. But these powers must be proportionate to the need for them and must be balanced against the rights of individual citizens who are not members of the Oireachtas.

The right to protection of one’s good name is one of the fundamental personal rights expressly set out in Article 40 of the Constitution. Article 40.3.1 and Article 40.3.2 provide:

This constitutional right to protection of one’s good name is not one which is found in by any means all statements of basic human rights. The rights to protection of one’s life, person and property are much more universal in constitutional statements of rights or Bills of Rights throughout the world. The right to protection of one’s good name is not specifically found, for instance, in the European Convention on Human Rights. It is not included as a right in the United States Constitution; nor is it included in the Canadian Charter of Rights and Freedoms contained in the Constitution Act 1982, nor in the Commonwealth of Australia Constitution Act 1900. The inclusion of this specific right in the Irish Constitution marks a recognition by the framers of the Constitution of the damage that can be done to a citizen even in a situation where he or she is not subjected to legal penalties, to loss of liberty or property, or to physical injury. In considering the balance which must be held between the rights of the Oireachtas as such and those of the individual citizen, and the priorities which must be given to each, the right to protection of the individual’s good name has to be given due weight.

Mr Shatter and the other Appellants argue that to protect the good name of the Gárda Applicants in the context of the Sub-committee’s inquiry is of little meaning, given that they could be equally subjected to attack as individuals in a public debate under privilege in the Dail Chamber. I cannot accept this argument in the light of Dail Standing Order No. 58 which specifically and in detail sets out rules to protect members of the public outside the Dail from defamatory statements made under privilege in the Dail Chamber. Mr Shatter and the other Appellants surely cannot be suggesting that members of the Dail would deliberately break the rules of their own Standing Orders in the course of a debate on the Abbeylara incident. During the course of argument in this Court I myself raised a question concerning the effect of this standing order but received a somewhat minimal response from the Appellants. It is, however, discussed in greater detail in the judgments of both Hardiman J. and Geoghegan J. and I concur with their analysis of it. I also agree with them in that I find it astounding that the Appellants should endeavour to rely by way of legal argument on a proposed breach of the standing orders of the Houses of the Oireachtas. I might also add that a claim made in the heat of a Dail Debate that a particular Gárda, or particular Gárdai, were individually culpable in regard to Mr Carthy’s death would not carry anything like the weight of the published conclusions of a Committee of Inquiry.

In the course of the submissions made by the Appellants various references were made to the effectiveness of the Inquiry by the Public Accounts Committee concerning Deposit Interest Retention Tax. The implication appears to be that that Inquiry was extremely successful and therefore it is likely that the Abbeylara Inquiry would be equally successful. In that context it is relevant to consider the comparative study into Tribunals of Inquiry and Parliamentary Inquiries (including Costs Comparison Report) which was carried out following the DIRT Inquiry. This study was carried out by the Attorney General’s Office and the Department of Finance; it seems clear that the general part was provided by the Attorney General’s Office while the Costs Comparison Section was provided by the Department of Finance. The report of the Comparative Study was included with the Attorney General’s submissions to this Court. It is a most useful and informative document. It first surveys the legal framework and practice and procedure of tribunals of inquiry and refers both to the Salmon Report and to the Scott Inquiry in the United Kingdom.

The second part of the survey is devoted to Parliamentary Inquiries. In the introduction to this section attention is drawn to the distinctive features of the DIRT Inquiry (features which are absent from the Abbeylara Inquiry):-

The survey accepts that Parliament’s power of inquiry is not statutory but inherent, and also that it may be subject to some limitation - in effect the limitation put forward by the Attorney General in his submission to this Court (see above). It quotes from the case of Watkins v United States :-

At page 37 of the survey the authors comment:

At page 39 of the survey, under the heading “other miscellaneous distinctions between Parliamentary Inquiries and Tribunals of Inquiry” it is stated:-

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

The survey is accompanied in the Attorney General’s submissions by the text of the Attorney General’s own Opening Statement made to the Public Accounts Committee (Sub-committee on DIRT) on Tuesday, 28th November 2000. This statement shortly preceded the publication of the survey referred to above. The Attorney General referred to the forthcoming survey, and continued:

Having referred to the possibility of choosing between a Parliamentary Committee and a Tribunal of Inquiry under the 1921 Act, the Attorney General goes on to say:-

Again, these remarks are highly relevant to a number of the issues which have arisen in this appeal. In this context I would, in common with Hardiman J., express my agreement with the comments of Geoghegan J. on the affidavit of Séan Cromien in this case. Mr Cromien, from the vantage point of his long experience as a senior civil servant, highlights the weaknesses of a political system of inquiry.

It appears to me that both in his statement and in the survey the Attorney General offered wise and well considered advice both legal and practical to the members of the Oireachtas. Unfortunately in its progress towards the “fact finding” inquiry as it now stands the Abbeylara Sub-committee chose to ignore a great deal of this advice. A study of the transcripts of the Committee’s proceedings would bear out this impression.

The text of the survey and of the statement also, in my view, underlines the fact that, as correctly if reluctantly conceded by the Attorney General in argument, both the present remit of the Abbeylara Inquiry and the course of action taken by it go well beyond any constitutionally-related and proportionate inherent power of a committee of both Houses of the Oireachtas.

By way of comment I would also ask, with due deference to the Sub-committee, why the present style of fact finding inquiry is thought to be necessary for any purpose of the Houses of the Oireachtas? The members of the Sub-committee and Mr Shatter argue that they must know the facts of what happened before they can comment or make recommendations. But in outline, insofar as is necessary for their purposes, they know what happened - Mr Carthy was tragically shot dead by a member of the Gárda Siochana. This was an undesired and more than undesirable outcome - an event which should not be permitted to occur again. The Sub-committee already has before it the report of Superintendent Culligan which deals with many of the relevant factual matters including the identity of the Gárdai involved.

In the circumstances it would be relevant for the Sub-committee to have regard to such matters as the policy of the Gárda on the use of firearms, the licensing of firearms held by members of the public, the care of persons suffering from psychiatric illness, and perhaps the need for an independent Ombudsman or other public official to deal with complaints concerning Gárda matters. All of these matters would, in my view, come within the normal inherent power to enquire of at least a Committee of the Dail, if not a Joint Committee. They would form part of the Dáil’s powers to hold the Government to account. In what way would the making of recommendations for future policy or legislation in these matters be assisted by making findings of individual culpability as to which shot actually killed Mr Carthy and as to which Gárda actually fired that shot? The Sub-committee claims, inter alia , to include in its powers the power to make a finding of unlawful killing. Leaving aside the legal or other merits of such a claim, in what possible way would such a finding assist in any of the constitutional functions of a Joint Committee of the Oireachtas?

In this context it is instructive to consider the report of a Committee of the New Zealand Parliament into policing difficulties which arose in that country at the time of a visit there by the President of China. Mr Shatter provided the Court with a copy of this report, which he submitted, was an example of a parliamentary inquiry into policing matters which was of a similar nature to the inquiry proposed to be carried out by the Abbeylara Sub-committee. In fact the nature of that inquiry was very different. Crucially, it made no attempt to investigate the individual culpability of either police officers or members of the public. This did not in any way prevent it from carrying out the task given it by the New Zealand Parliament and from making important and far reaching general recommendations on the policing of such occasions in future (Inquiry into matters relating to the visit of the President of China to New Zealand in 1999 - report of the Justice and Electoral Committee December 2000).

In conclusion, I would accept that the Dail and Senate, and the Houses of the Oireachtas jointly, have an important power to enquire. This power is inherent in the Constitution but is a limited one. It may be implied solely and directly in aid of the functions of each House of the Oireachtas as delineated in the Constitution itself. The power however does not extend to the making of “findings of fact” concerning the individual culpability of non-members of the Oireachtas which involve damage to the good name of such individuals. It does not, for the various reasons set out above, extend to the present inquiry as it is proposed to be carried out by the Abbeylara Sub-committee. To that extent I would uphold the decision of the Divisional Court at Declaration 1 of their Order.

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

The Divisional Court in its judgment dealt with the issue of the justiciability of various aspects of the general proceedings of the Abbeylara Sub-committee. In argument before the Divisional Court the Appellants differed somewhat in their approach to this issue. It was conceded by all the Appellants that certain aspects of the complaints made by the Gárda Applicants were capable of being adjudicated upon by the Court. At page 34 of the judgment the Divisional Court stated in this context:

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

In a lengthy section of their judgment (pages 36 to 58) the learned judges of the Divisional Court surveyed the authorities both in this and in other jurisdictions on the power of the Courts to intervene in the proceedings of parliamentary bodies. They reached the following conclusions:-

In the argument before this Court the positions taken by the Appellants had somewhat changed. The Gárda Applicants maintained their stance that all matters were justiciable.

The Attorney General, who had made it clear that his appeal was solely concerned with Ground 1 of the Notice of Appeal, did not deal in any detail with the issue of justiciability. It appeared that he accepted a wide area of justiciability but submitted that the matter be approached with some degree of deference by the Court in the light of the separation of powers.

The members of the Sub-committee other than Deputy Shatter were prepared to accept a somewhat greater degree of justiciability than that set forth in their argument in the High Court. In addition to the concessions already made, Senior Counsel for these Appellants, Mr Clarke, accepted with some hesitation that the constitutionally permitted scope of an inquiry would be justiciable; the court could consider the resolutions initiating a particular inquiry in order to ensure that the inquiry would fall within proper constitutional boundaries. However, he submitted that the various motions and amendments made by the Dail and Senate, by the main committee and by the Sub-committee were non-justiciable. This was so even if such motions or amendments were passed in breach of or in disregard of the Oireachtas’ own standing orders and rules of procedure. In argument Mr Clarke accepted that it appeared to be held In Re Haughey that such matters were justiciable but he submitted that that matter had not been fully argued before the Court.

Mr Shatter in his written submissions relied on Article 15.10 of the Constitution. That article, he said, outlined non-justiciable areas of parliamentary activity. It set out the constitutional boundaries and permitted no interference by the other two organs of Government, the Executive and the Judiciary with the internal workings of the Houses of the Oireachtas. Thus, he submitted, the Courts were prohibited from interfering in areas deemed by the Constitution, either expressly or by necessary implication, to be within the exclusive competence of Parliament. He referred to the judgment of O’Dalaigh C.J. in Wireless Dealers Association v Fair Trade Commission (unreported Supreme Court 14th March 1956) where he stated:

He submitted that the Article should be given a wide interpretation. In his oral argument to this Court it was clear that he felt very strongly about what he saw as the incursions of the Divisional Court into areas of parliamentary activity which were non-justiciable. He described the judgment of the Divisional Court as “a full frontal attack on parliamentary democracy” , a “violation of the separation of powers” and an “emasculation of Parliament” . He suggested that the Divisional Court had “stormed through the gates of Leinster House” . These ringing phrases, are no doubt, a measure of Mr Shatter’s passionate rejection of the decision of the Divisional Court.

Article 15 of Bunreacht na hEireann deals with the Constitution and powers of the National Parliament. Article 15.10 provides:-

It is clear from this sub-article that, as submitted by Mr O’Donnell, Senior Counsel for the Respondents, the Oireachtas “makes its own rules for its own members” . These rules are in the main set out in the Standing Orders of both Houses. Various Committees of each House administer these rules, and may provide for penalties for their breach. Committees such as the Committee on Procedure and Privilege and the Committee of Selection are long established and are known as Standing Committees. In recent years another such Standing Committee has been established - the Committee on Members’ Interests of Dail Eireann. All these Committees, all investigations carried out by them and all penalties imposed by them (or by the Dail or Seanad at their instigation) concern solely the members of the Oireachtas themselves. There is no doubt but that all these matters are non-justiciable in accordance with Article 15.10.

Can this non-justiciability extend to actions of the Oireachtas, its Committees and its members when those actions impinge on the rights of persons who are not members of either House, as contended for by Mr Clarke and Mr Shatter? More particularly, can non-justiciability extend to a situation where such persons are compelled to attend and give evidence before a Committee of either House or a Joint Committee? Could such non-justiciability extend to a situation where, for instance, the members of a Committee were in blatant breach of the Standing Orders of the House itself and that breach affected the rights of non-members? It seems to me that it could not.

The members of the Sub-committee, including Mr Shatter, argued that such an affected person must seek his or her remedy not through the Courts but “through the political process” . I am not entirely clear what this latter phrase would mean in practice. In my view it is neither a practical nor an effective remedy.

A person such as one of the Gárda Applicants, therefore, who appears before an Oireachtas Committee under a direction pursuant to the 1997 Act is thus involved in a scenario where crucial decisions are to be made by the High Court, or by this Court on appeal. He is at risk of being found to have committed an offence and of being fined or committed to prison. He is brought into this scenario as a result of resolutions, motions, amendments and other actions of the Oireachtas. It seems to me that actions of the Oireachtas which are the basis on which the ordinary citizen may be brought into such peril cannot be non-justiciable.

The 1997 Act does not stand alone. In essence it merely provides the tools for the work of Committees of the Oireahctas. The Appellants accept that matters arising under the Act are justiciable. So also must be the resolutions and terms of reference and any amendments thereto which cause the Act to be brought into effect.

The careful analysis by the Divisional Court of the train of events leading to the establishment of what the Sub-committee itself described as the “Abbeylara Inquiry” reveals a litany of procedural changes of direction and indeed procedural errors. In this Court, as in the Divisional Court, it was extraordinarily difficult to ascertain from the documentary evidence the exact order and effect of the procedural steps which were taken. The documentary evidence exhibited in the pleadings was confusing; the provenance of the exhibited documents, and of further documents which were handed into Court, was far from clear. A peculiar feature of this documentary confusion was that, with the honourable exception of the compellability Sub-committee, none of the bodies concerned seemed to be capable of producing a certified extract from their minutes setting out in exact terms the decisions made at each meeting in chronological order.

While clerical errors and other minor flaws can occur from time to time in any procedure, it seems extraordinary that such a series of errors and such a degree of avoidable confusion should have arisen in the course of establishing exact terms of reference for a task which the Oireachtas apparently regarded as of great urgency and importance. We are not dealing here with the records of a local voluntary committee; what is in question here is the procedure and records of the National Parliament.

The factual analysis of the procedural events made by the Divisional Court was in no way challenged in the course of the appeal. The Divisional Court treated the procedural history as crucial to the actual powers of the Sub-committee and concluded that the Sub-committee acted ultra vires the authority given to it. They dealt with this aspect of their conclusions at pages 63 to 64 of their judgment as follows:-

In this Court Mr John Rogers S.C., in his detailed submission on behalf of the Gárda Applicants on this aspect of the case, entirely supported the approach taken by the Divisional Court. He also argued that the Gárda Applicants who were directed to appear before the Sub-committee were unaware of the true nature of the inquiry they faced. Through their Counsel they repeatedly asked for documentary evidence of the exact terms of reference and powers of the Sub-committee. This information was either not provided or only provided after a delay. Even when it was provided it subsequently, in the case of the consent of the compellability Sub-committee, proved to be inaccurate. Mr Rogers submitted that an inquiry of the kind envisaged by the Sub-committee was not mandated by the original resolutions of the Dail and Seanad and that the subsequent amendments did not render the holding of such an inquiry intra vires .

From the point of view of the Gárda Applicants, they faced the ordeal of giving evidence in a totally unfamiliar setting, where any failure or refusal to answer a relevant question or produce a relevant document constituted an offence punishable by a fine of up to £20,000 or imprisonment for a term up to two years. Without exact information as to what appeared to be the constantly changing terms of reference of the Sub-committee how were they to know what questions and what documents were, in fact, relevant? On this aspect of the case Mr Rogers relied on the case of Watkins v United States (354 U.S. 178) to which I shall refer later.

Senior Counsel for the appellant members of the Sub-committee (other than Mr Shatter), Mr Ryan, admitted that a measure of confusion had arisen in connection with the various amendments to the terms of reference and powers of the Sub-committee, but argued that nothing that had happened rendered the actions of the Sub-committee ultra vires . Mr Ryan submitted that in impugning the resolutions, orders and decisions made by the Oireachtas and its Committees the Divisional Court had failed to have due regard to the presumption of constitutionality. He referred to the dictum of Hamilton C.J. in Redmond v Flood [1999] 3 IR 79 where he stated:

Mr Ryan also referred to a number of dicta to the same effect in other cases. He accepted that there had been certain flaws in the procedures followed by the committee and Sub-committee, but submitted that serious breaches of rules or standing orders would have to be established before a Court could prevent the Sub-committee from performing the task which it had been mandated to perform by the Houses. In fact any breaches of procedural rules that had occurred had no serious effect.

As regards the complaint that the Gárda Applicants were unaware of the nature and purpose of the inquiry, Mr Ryan submitted that all the proposed witnesses were furnished by the Sub-committee with extensive documentation including the rules and guidelines for committees and the memorandum of procedure. The submissions received by the Sub-committee from relatives and neighbours of the late Mr Carthy and from other members of the public were sent to all proposed witnesses and were distributed to the relevant legal representatives at the start of the hearings. A majority of these submissions raised issues of fact. The chairman of the Sub-committee, Deputy Ardagh, clearly identified the nature and purpose of the inquiry in his detailed introduction to the proceedings on 24th April. Mr Ryan submitted that there was therefore an air of unreality about the Gárda Applicants’ complaints that the purpose of the Sub-committee’s proceedings was a mystery to them.

Mr Shatter did not make any detailed submissions in regard to procedural difficulties concerning the terms of reference and powers of the Sub-committee. He relied on his submission that none of these matters was justiciable. The Attorney General, who was dealing only with the question of whether the Houses of the Oireachtas have an inherent right to establish or conduct inquiries and the extent of such power, did not make any submissions in regard to this aspect of the case.

There is no doubt that the procedures adopted by the Committee and the Sub-committee in setting out and later amending their terms of reference and powers are open to the criticisms made by the Divisional Court. Procedural errors alone are not, however, sufficient to render the proceedings of the Sub-committee ultra vires . Mr Ryan argues that the resolutions, motions and amendments of the Oireachtas and its Committees are entitled to the presumption of constitutionality; this is so, but this submission is more relevant to the main issue of the inherent powers of the Committee. A presumption of constitutionality does not serve to cloak a flawed procedure which leads to actual injustice, if such there be.

The Gárda Applicants claim that the procedural errors in this instance led to a situation of basic unfairness. This, in the main, was because they, as compellable witnesses who were at risk of committing an offence and suffering punishment, were not made aware of the nature and powers of the inquiry they were directed to attend. Clarity is of great importance in an inquiry such as that proposed by the Sub-committee. The Oireachtas itself is well aware of this. The first rule under the heading “Committee Procedures” in the Oireachtas’ own Rules and Guidelines for Committees reads as follows:-

Mr Rogers complains that the Abbeylara Sub-committee broke this rule in that the crucial amendment of 10th April, which gave the Sub-committee power to “make findings of fact” was not conveyed to the Gárda Applicants and indeed seemed to have disappeared from the records of the Committee. Neither did it form part of the Sub-committee’s application to the Compellability Committee.

The importance of clarity in the nature and purpose of the investigation is related to the terms of the 1997 Act. Persons who are directed under the terms of the Act, as were the Gárda Applicants, to attend an inquiry into facts must answer questions as put to them and must produce documents as demanded. Refusal or failure to do so lays the witness open to suffering serious penalties.

In a number of sections of the 1997 Act, the High Court is involved in enforcing the directions of the Committee which is carrying out the inquiry. Section 3 deals with the power of the Committees who obtain evidence. Section 3 (7) provides (as quoted earlier in this judgment):

To disobey a direction of an Oireachtas Committee is, therefore, a very serious matter. The 1997 Act, however, includes a provision that the potential witness need answer only “relevant” questions and produce “relevant” documentation. Section 4 (1) provides:-

If a witness refuses to answer a particular question or to produce a particular document on grounds of irrelevance, the decision as to its irrelevancy is to be made by the Chairmen of the Dail and/or Senate, or, on appeal, the High Court. This provision regarding irrelevance is on its face an important protection for the potential witness. The protection loses much of its force however if the witness cannot ascertain clearly in advance what matters are, or are not, relevant to the inquiry. Relevance or irrelevance can only become clear if the nature of the inquiry and its terms of reference are also clear and are conveyed in a proper manner and at a proper time to the potential witness.

This is precisely the situation which was considered by the Supreme Court of the United States in Watkins v United States (354 U.S. 178) . In that case the petitioner had been summoned to testify before a Sub-committee of the House of Representatives Committee on Un-American Activities. He testified freely about his own activities and associations but he refused to answer questions as to whether he had known certain other persons to have been members of the Communist Party. He based his refusal on the grounds that those questions were outside the proper scope of the Committee’s activities and not relevant to its work. He was convicted of a violation of 2 U.S.C. paragraph 192, which makes it a misdemeanour for any person summoned as a witness by either House of Congress or any Committee thereof to refuse to answer any question “pertinent to the question under inquiry” .

As set out in the headnote of the report, no clear understanding of the “question under inquiry” could be gleaned from the resolution authorising the full Committee, the legislative history thereof, the Committee’s practices thereunder, the action authorising the Sub-committee, the statement of the chairman of the opening of the hearings or his statement in response to the petitioner's protest. The Supreme Court held that the petitioner was not accorded a fair opportunity to determine whether he was within his rights in refusing to answer, and his conviction was invalid under the Due Process Clause of the Fifth Amendment. The opinion of the Court was delivered by Chief Justice Warren. He stressed (at page 197) that in this context “the delegation of power to the Committee must be clearly revealed in its charter” . At page 201 the Chief Justice referred to the relationship between the Legislature and its Committees:-

He went on to consider the way in which the “question under inquiry” had been defined by the Sub-committee in question. At page 214-215 the learned Chief Justice concluded:-

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

In the instant case the Appellants claim that the Gárda Applicants were fully informed of the nature of the inquiry and the powers of the Sub-committee both by the documentation which was served on them with the direction and by the comprehensive introductory speech made by Deputy Ardagh on the 24th April. They were not, however, provided in advance of the hearing with the resolutions, motions and amendments thereto which were the documents of origin of the Committee’s inquiry. Even when those documents were sought by Mr Rogers on their behalf there was considerable hesitancy and delay in producing them. Those that were produced were at least in one respect inaccurate. To judge from the transcript the attitude of the Sub-committee appeared to be that in seeking this information Counsel for the Gárda Applicants was making “spurious” legal points or merely trying to obstruct the “good work” of the Sub-committee.

In my view, the information provided by the Sub-committee, while it gave a general indication of the nature of the inquiry, did not measure up to the “luminous” clarity required, given the possible penalties faced by the Gárda Applicants. In the Watkins case, the United States Supreme Court approached the Committee’s lack of clarity from the point of view of the “due process” rights of the petitioner. It seems to me that this approach is of assistance in the instant case. It is not so much that the procedural flaws in the establishment of the Abbeylara Inquiry are so serious as in themselves to render the Committee’s proceedings ultra vires . It is rather that the confusion and complexity that beset the procedures in question, and the failure clearly to convey the nature and powers of the Sub-committee to the Gárda Applicants, resulted in a lack of fair procedures or due process on the part of the Sub-committee.

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

The events surrounding the issue of the consent of the compellability Sub-committee pursuant to the Act of 1997 are fully set out by the Divisional Court in its judgment at pages 17 to 29. The factual basis of the history set out by the Divisional Court is not in substance challenged by the Applicants.

The long title of the Act of 1997 states that its purpose is “to make provision regarding compellability and the privileges and immunities of witnesses before Committees of Houses of the Oireachtas and to provide for related matters.” Before an Oireachtas Committee can use the powers provided in the Act the Committee must firstly have the power to “send for persons, papers and records” and must secondly have obtained the consent of the “appropriate Sub-committee” . The “appropriate Sub-committee” is defined in Section 1 (1) of the 1997 Act as follows:-

As is clear from the judgment of the Divisional Court and from the documentary evidence exhibited before this Court, the Abbeylara Sub-committee made an application to the compellability Sub-committee on the 11th April 2001 for the necessary consent pursuant to the 1997 Act so that it could issue statutory directions to proposed witnesses pursuant to Section 3 of that Act. The compellability Sub-committee considered the application at its meeting on the evening of the same day. It appears that this meeting began at 7.50 p.m. and ended at 8.05 p.m. and that at that brief meeting the Sub-committee considered requests from two Sub-committees one of which was the Abbeylara Sub-committee. The compellability Sub-committee decided to give consent to the application made by the Abbeylara Sub-committee.

On 12th April 2001 the Abbeylara Sub-committee issued the directions which were served on the Gárda Applicants and other witnesses directing them to attend at the hearing on 24th April and there to give evidence. The written consent of the compellability Sub-committee, duly signed by its chairman Deputy Seamus Brennan, was not brought into existence until 30th April 2001. The Divisional Court held that the directions issued on the 12th April to the proposed witnesses were therefore not properly issued in accordance with the Statute. There was, therefore, no authority vested in the Sub-committee to issue these directions.

In this Court the Appellants argued that before the issue of the directions on 12th April the Compellability Sub-committee had in fact met, had considered the application, and had consented. The Appellants submit that the consent in writing is required for the purposes of proof only, to be produced in accordance with Section 3 (9)(c).

This issue of the interpretation of Section 3 (9) has been fully discussed by Geoghegan J. in his judgment and I am in complete agreement with him. It appears to me that the words used in the Statute are clear and should be interpreted in accordance with what is described in Bennion’s “Statutory Interpretation” as “the plain meaning rule” (3rd ed. Pgs. 425-427). In this context Bennion quotes the judgment of Lord Reid in Pinner v Everett [1969] 1 WLR 1266 at 1275 :

It seems to me that the phrase “consent... shall be in writing” has a natural and ordinary plain meaning which does not lead to any unreasonable result. There is nothing at all unreasonable in providing that a written consent should be in the hands of an Oireachtas Committee at the time when it issues a direction to a witness to attend an inquiry. Indeed, a great many of the difficulties of the Abbeylara Sub-committee in meeting the queries raised by Counsel for the Gárda Applicants might have been avoided if they had taken the simple step of obtaining the relevant “consent in writing” before directing the witnesses to attend.

I would add that even if this interpretation of Section 3 (9) were wrong and the argument of the Appellants were to be accepted, it would surely be necessary for the Abbeylara Sub-committee to produce the written consent of the compellability Sub-committee as proof of its existence if and when any witness required it. From the very beginning of the hearings on 24th April Counsel for the Gárda Applicants, Mr Rogers, raised queries in connection with the terms of reference, powers and authority of the Sub-committee. He continued to raise these queries on the following days. He met with very little assistance and it was clear that his queries were far from welcome to the members of the Sub-committee. When, on 26th April the Committee finally rose to consider the queries which he had raised, their decision was given by the chairman, Deputy Ardagh, as follows:-

It is abundantly clear that the Committee expected and required the witnesses before it to give evidence in its far reaching inquiry prior to the production of the proper written proof of the consent of the compellability Sub-committee. It is probable that at least some members of the Sub-committee were well aware that the required written consent was not in existence. In my view, once the Gárda Applicants had sought evidence of the Committee’s powers, the Sub-committee had no authority to direct them to give evidence unless and until proof in writing of the consent of the compellability Sub-committee had been produced to them.

In my view the Divisional Court was correct in granting an Order of Certiorari quashing the directions to the Applicants requiring them to attend before the Abbeylara Sub-committee there to give evidence and to produce documents in their possession.

In their judicial review proceedings before the Divisional Court the Gárda Applicants sought a declaration that the procedures adopted by the Abbeylara Sub-committee did not comply with the requirements of natural and constitutional justice.

The witnesses who were directed to attend the Sub-committee on 24th April 2001 were issued with a letter including the Rules and Guidelines for Committees under the 1997 Act. Rule 2 of these rules provided:-

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

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

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

The witnesses were also presented with a schedule of witnesses and a timetable for the hearings. From this it appeared that fifty seven witnesses would be examined over a ten day period. No cross-examination would be permitted until the ninth day, and the closing submissions of the parties would also have to be accommodated on that day. Further evidence and conclusions were scheduled for the final day.

Through their Counsel. Mr Rogers, the Gárda Applicants raised objections to certain of these procedures. Their most vehement objection was to the ruling that the evidence in chief of all the witnesses would first be taken and that cross-examination of the witnesses would be allowed only with the permission of the Sub-committee. In addition they objected to the postponement of cross-examination to the ninth day and that the entire of cross-examination would be confined to a period of less than one day.

It should be said that Senior Counsel for the Carthy family, Mr Michael O’Higgins, also raised vehement protests at the proposed curtailment and postponement of cross-examination.

In the course of submissions to this Court the Appellants submitted that these procedures were not cast in stone, and would be open to variation if required during the course of the inquiry. This, however, did not appear to be the position at the actual hearing on 24th April 2001. Certainly it was not clearly indicated to the witnesses or their Counsel that the schedule or method of procedure could be altered from time to time. On 24th April the chairman of the Sub-committee, Deputy Ardagh, ruled:-

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

These rulings give an indication of the attitude of both the chairman and the members of the Sub-committee throughout the public hearings. It was therefore somewhat surprising to find that the Appellants relied very heavily in their submissions to this Court on the protections provided for witnesses by Section 10 of the 1997 Act. It is clear that the protections provided in the Act are intended to reflect the judgment of this Court in In Re Haughey [1971] 1 IR 217 .

The Divisional Court in their judgment held that the proposed procedures of the Abbeylara Sub-committee were unfair and unlawful. At page 69 of the judgment the Court stated:-

In their submissions to this Court the Gárda Applicants/Respondents relied in the main on the requirements of fair procedures and natural and constitutional justice as set out in In Re Haughey [1971] IR 217 . In his judgment in this Court in that case O Dálaigh C.J. stated (at page 264):-

The Chief Justice went on to set out the “minimum protection” to which the person at risk of having his rights jeopardised was entitled:-

O Dálaigh C.J. concluded that Article 40.3 of the Constitution was a guarantee to the citizen of basic fairness of procedures. It was he said “the duty of the Court to underline that the words of article 40.3 are not political shibboleths but provide a positive protection for the citizen and his good name”.

The Appellants in their submissions to this Court made a number of points. Firstly they argued that the Respondents were not in the position of being accused of committing a criminal act in the sense that Mr Pádraic Haughey had been. They were merely witnesses; no evidence at all had yet been given against them. Secondly, they were in fact been allowed all the rights listed by O Dálaigh C.J. as set out above. Thirdly, since the inquiry had not really got properly under way at all prior to the issue of the present judicial review proceedings the Respondents could not properly allege that the procedures would not have been changed during the course of the inquiry in order to meet their complaints.

These submissions carry a certain weight. However, in the light of the Appellants own submissions both in the Court below and in this Court, it seems clear that at least some of the Gárda witnesses were at risk of being treated more as accused persons than merely as witnesses. As regards cross-examination, clearly any Court and any inquiry must have the right to control cross-examination, for instance both as to relevance and as to length. But O Dálaigh C.J. has laid great stress on the importance of cross-examination, and it does not seem to me that a cross-examination so limited in time and, even more damagingly, postponed until after the completion of all the evidence in chief, could adequately meet the standards set by this Court in In Re Haughey.

Mr Rogers also informed this Court that during the actual proceedings of the Sub-committee the senior Gárda witnesses were called to give evidence in groups of four or five and were permitted to refer questions and answers to each other. While such a procedure might on occasion be suitable for what I might describe as the traditional information-gathering inquiry carried out by Parliamentary Committees, it is, I consider, open to objection in any inquiry which is seeking to make serious and damaging “findings of fact” .

What appears to have happened as far as can be gathered from the materials provided to this Court, is that a pattern of procedure which had been established - and apparently agreed - for the DIRT Inquiry carried out by the Public Accounts Committee was transferred more or less holus bolus to the Abbeylara Sub-committee’s inquiry. Clearly, insufficient thought was given as to whether it was a suitable procedural framework for such an entirely different type of inquiry.

The Appellants, however, are correct in their submission that none of the Gárda Respondents have as yet given evidence or been adversely affected by the proposed procedures, which could have been changed and improved as the inquiry progressed. Nevertheless, they had been put on notice of the proposed procedures of the Sub-committee and in fact had found little inclination on the part of the Sub-committee to meet their complaints. They were, therefore, justified in seeing themselves as being at risk of being adversely affected by the proposed procedures.

Since the procedures had not actually been put into effect prior to the issue of the present proceedings, I consider that the Divisional Court was correct in confining the relief granted to the Respondents in this respect to the declaratory order which they made at paragraph 5 of their order of 23rd November 2001.

I am the more ready to uphold this aspect of the order of the Divisional Court in that, as I have stated earlier, I consider that the lack of clarity in the amended terms of reference of the Sub-committee, and the failure clearly to convey to the witnesses the nature and powers of the Sub-committee, also contributed to a failure to comply with the requirements of natural and constitutional justice. It could also be said that the Respondents’ complaints concerning objective bias (to be dealt with at the end of this judgment) were closely connected with the overall concept of fair procedures and natural and constitutional justice.

The second relief which was sought by the Gárda Applicants in their application for judicial review was set out in their Grounding Statement as follows:-

The grounds upon which their claim for such a relief was sought appear at paragraph (d) of the grounding statement as follows:-

The Divisional Court in its judgment refers to this as among the major issues raised by the Applicants in the proceedings. On page 33 of the judgment the issue is set out:-

However, the Divisional Court, having held that the Sub-committee had in fact no power to conduct the inquiry in question, did not go on to consider the specific issue of bias. Nor is there any relief based on bias granted in the Order of the Divisional Court made on the 23rd November 2001.

On 6th December 2001 notices of appeal to this court were filed on behalf of the Joint Committee (other than Alan Shatter), on behalf of Alan Shatter, and on behalf of Ireland and the Attorney General. On 12th December 2001 a Notice to Vary was filed on behalf of the Gárda Applicants (the Respondents in the appeal). In the Notice to Vary the Respondents sought:-

The use of the phrase “elected officials” in both the original grounding statement and in the notice to vary is somewhat strange. However, based on the submissions of Counsel to this court, it can be taken simply to mean “public representatives” or “members of the Oireachtas” . In general terms the Gárda Applicants argue that by the very nature of their functions, responsibilities and characteristics as public representatives the members of the committee are precluded on grounds of bias from carrying out an inquiry of this type. They also argue in particular that at least a number of the members of the committee have by their behaviour before and during the actual committee hearings created in the minds of the Gárda Applicants a reasonable apprehension of bias.

The bias claimed by the Respondents is “objective” bias. They make no claim of subjective bias on the part of the committee members; they do not allege any specific personal interest on the members’ part in the outcome of the inquiry.

It appears that the issue of bias was argued before the Divisional Court although this is not reflected in the judgment of that court.

Since it is the Respondents (the Gárda Applicants) who have sought this variation of the decision of the Divisional Court it seems appropriate firstly to consider their submissions to this court. This part of their submissions was dealt with by Mr O’Donnell.

Mr O’Donnell introduced his submissions on bias with a reference to the history of parliamentary inquiries in the United Kingdom, the enactment of the Act of 1921, and the Salmon Report. All these matters have been dealt with elsewhere in this judgment and in the judgments of other members of the court and there is no need to enlarge on them here. Mr O’Donnell’s basic argument which, he said, followed from common sense, was that persons who hold elected positions are not independent and are not capable of acting in a manner that is divorced from their own electoral dependence, persistent need to court media approval and the dictates of their own party political loyalties.

Counsel pointed out that the decisions of this court upholding the validity of Tribunals of Inquiry under the 1921 Act attached importance to the fact that those Tribunals operated under the aegis of experienced judges. In Goodman v Hamilton [1992] 2 IR 542 at 592 the then Chief Justice, Finlay C.J. observed that the fact that the sole Member of the tribunal of inquiry in that case was a High Court judge was “a significant contributing factor to the fairness of the proceedings that are being undertaken” . In the same case Hederman J. stated:-

It was clear that the learned judge did not regard with favour the idea of “a tribunal composed exclusively of Dail deputies” .

Mr O’Donnell referred to the established test of objective bias in Irish jurisprudence defining it as revolving around “that of the reasonable person’s reasonable apprehension of bias” ( Bula v Tara Mines unreported Supreme Court 3 July 2000 at 36 ). In view of this it became extremely difficult to see how it could be contended that the members of the Sub-committee were not subject to the disability of apparent bias. They were not independent in the discharge of their functions. The risk of elected politicians being induced to condition findings of fact by reference to their own perception of public opinion, or being reluctant to arrive at findings that might inflame that opinion, was such that no person looking objectively at proceedings conducted by such a committee could have confidence in the impartiality of the result.

Counsel highlighted the response of the Appellants to the issue of bias. The individual deputies protested their determination to be impartial. In effect they sought to assure the court that they would behave with the impartiality and dignity appropriate to the court proceedings; they contended that they would be like judges and agreed that they were obliged to behave in a judicial manner. This however was in direct contrast to their actual constitutional duties to their constituents. They were elected to represent their constituents and could not ignore the views and indeed the actual representations of their constituents. In this context Mr O’Donnell quoted the ringing phrases of Edmund Burke’s Address to the Electors of Bristol. He went on to point out that the members of the committee were subject to party discipline and that the members of all Dail Committees were selected in proportion to the strength of the Parties in the House precisely because they could put forward their Parties’ policies in the committee. May a Party whip be imposed on the members of the committee, he asked, and if not, why not?

Mr O’Donnell said that he found it extremely troubling that the Appellants had argued that the rule against bias had no application to the proceedings of the committee. The rule against bias (the nemo iudex rule) was one of the two basic tenets of natural law. To be told that it did not apply to this inquiry was extraordinary, particularly when it was accepted that other rules of fair procedures did apply.

The Attorney General had argued that the decisions on bias were only applicable in the context of a decision-maker whose fact finding would determine legal rights. Mr O’Donnell submitted that that was quite wrong. The fact that the rules relating to bias were not confined to the bodies whose determinations directly affected legal rights was evident from the decision of this court in Chestvale v Glackin [1993] 3 IR 35 , where those principles were applied to an inspector appointed and reporting under the Companies Act.

Mr O’Donnell then turned to the actual behaviour of the members of the committee. Members of the committee had expressed trenchant views on the subject of the inquiry before it commenced; the chairman of the inquiry took part in a television programme about the inquiry while it was ongoing, and other members of the committee gave interviews to journalists during the course of the hearings expressing opinions as to the whole course of the hearing. The evidence before the High Court (which was never contradicted) was that journalists were regularly briefed throughout the course of the Parliamentary Committee proceedings by the members of committees. On any standard application of the rules against bias, those facts would give rise to a reasonable apprehension of pre-judgment. To draw attention to these matters was not to criticise elected representatives as such. On the contrary, it was because “ elected representatives were obliged to monitor and reflect popular sentiment ,” because “they were trusted to reflect that sentiment in their law making ” and because “they were obliged to listen to and reflect upon the views of their constituents that it was singularly inappropriate that they then engaged in the function of determining facts particulars to individuals and potentially adverse to them .”

The apprehension of bias on behalf of the Gárda Applicants was founded both in the general nature of the proper task of elected representatives and in the particular behaviour of the members of the Sub-committee.

In the course of oral argument before this court the main argument for the Appellants on bias and on the Notice to Vary was put forward by the Attorney General. He submitted that the authorities on bias had no relevance to the situation of a committee or Sub-committee of the Houses of the Oireachtas. All the authorities cited by the Gárda Applicants relating to the test of bias concerned a situation where there was a decision-maker whose fact finding would determine legal rights. The test of bias operated only in a situation where there was a trial or an adjudicative process taking place. He submitted that an Oireachtas Committee of Inquiry operated at the heart of the parliamentary process and was devoid of any legal effect or impact on the rights of individuals. Where a trial or regulatory authority was making a decision affecting rights it was consistent with and necessary to that function that the decision-maker would be free of any kind of bias whether actual or apparent. Where members of the Oireachtas in pursuance of their various duties enquire into facts relevant to those duties wholly different considerations would apply.

The Attorney General said that the Gárda Applicants argued that elected members of the House were unfit to carry out the fact finding exercise involved in an inquiry. He submitted that on the contrary a perusal of the duties and responsibilities entrusted by the Constitution to such persons revealed a trust and faith in their judgment on matters of the most far reaching consequence. They were charged with making decisions not only about legislating for the country but also with judgments about the President and the judges of the Courts of Justice. The suggestion that such persons were unfit to carry out duties connected with their legislative function because of the representative nature of their duty was without merit and misconceived.

Mr Shatter in his submissions adopted the arguments of the Attorney General on the issue of bias.

The members of the Sub-committee (other than Mr Shatter) dealt with this matter in their written submissions. They submitted that the claim of bias misunderstood the role of the Sub-committeee. The Sub-committee was not in dispute with the Gárda Applicants nor was it going to determine any rights or liabilities either of the Gárda Applicants or any one else. All the Sub-committee would do was to report (via the Joint Committee) their considerations and recommendations to both Houses. It was therefore inappropriate to apply the type of analysis of bias to the Sub-committee that one would apply to a court. It was difficult to comprehend the contention of the Gárda Applicants to the effect that the Sub-committee could not be “independent” in the conduct of the proposed inquiry because the Sub-committee was composed of elected officials. The Sub-committee was made up of a cross section of members of three political parties and was representative of the Houses as a whole. It was unclear how bias could arise in such circumstances.

The Appellants accepted that the traditional concept of procedural fairness as applied to courts required that a number of elements be present when an investigation into a person’s activities was being carried out. While persons whose interests might be affected by an act or a decision should be given prior notice and an adequate opportunity to be heard, the concept also required that the decision-maker should not be biased or prejudiced in a way that precluded fair and genuine consideration being given to the arguments which such persons concerned might have advanced. The rule against bias was concerned not only with preventing actual bias, but also with ensuring that circumstances should not give rise to the appearance or a risk of bias.

Counsel for the Appellants referred to the test of objective bias as formulated by Finlay C.J. in O’Neill v Beaumont Hospital Board [1990] ILRM 419 as being whether:-

Counsel went on to refer to a number of decisions of the High Court and this court concerning objective bias, including in particular Orange Communications Limited v The Director of Telecommunications Regulations and Another (unreported Supreme Court 18th May 2000). A consideration of this case law relating to bias, it was submitted, identified situations where a decider of fact would be disqualified from acting. However, it could be seen from those cases that this situation would generally occur only when an identifiable factor linked the individual decider of fact or the member of a deciding committee to some aspect of the matter being investigated so as either to establish actual bias or to suggest the presence of bias.

In the situation of the Sub-committee, however, there were no factors linking any members of the Sub-committee to Mr Carthy or to any of the persons under investigation. In fact the Gárda Applicants had rightly stressed that no such allegations were being made. The contention of the Gárda Applicants was that members of the Sub-committee should not act simply because they have been elected. The Appellants submitted that the mere fact that they had been elected and might again stand for election should not, on a reading of the case law, be sufficient to brand them as biased. To suggest that the members of the Sub-committee would tailor their considerations on the Abbeylara Incident in such a manner as to win favour with their constituents would be to suggest that no elected person could ever exercise independence while acting in his or her official capacity. This was an untenable contention.

It is common case among all the parties before the court that there is no suggestion of actual subjective bias on the part of the individual members of the Sub-committee. It is also agreed, at least in principle, by the Appellants that the members of the Sub-committee, in carrying out the proposed inquiry, would be required to behave with judicial propriety.

The Appellants and the Respondents, while they disagree on the relevance and the application of the test of objective bias to the work of the Sub-committee, agree in general terms as to the actual test of objective bias as defined by this court. This was clearly set out in the passage quoted above from the judgment of Finlay C.J. in O’Neill v Beaumont Hospital . The test of objective bias was also recently discussed at some length in the judgment of Denham J. and in my own judgment in Bula v Tara Mines Limited (No. 6) [2000] 4 IR 412. The test is described by Denham J. as follows (at page 441):-

In my judgment in that case I also discussed the nature of the test and reached a similar conclusion. I referred to a passage from the judgment of Lord Denning M.R. in Metropolitan Properties Company (F.G.C.) Limited v Lannon [1969] 1 QB 577 at page 599 where the learned judge stated:-

While it is of course accepted that the members of the Sub-committee were not judges and were not administering justice, they themselves accept that in carrying out the type of inquiry they envisaged it was necessary for them to behave in a judicial manner. The matter which is at issue between the parties is not the nature of the test, but the extent of its application to the Sub-committee, or if it applies at all.

For this purpose it is in my view again necessary to distinguish the type of fact finding inquiry envisaged by the Sub-committee in this case from the work of what might be described as the ordinary run of Parliamentary Committees such as those that deal with the committee stage of Bills before the House. Where such work is closely connected with the framing of legislation or involves the gathering of generalised information relevant to the framing of legislation, it is clear that the Attorney General is correct in his contention that the rule against bias is not relevant. When approaching such a task it is probably desirable rather than otherwise that members of the Oireachtas have already formed strongly held opinions, and in addition that they put forward the views both of their constituents and of their Party. It is out of this open interchange of such views and opinions (which in another context might be described as biased) that policies are formed and eventually legislation is framed. In this context it is not damaging, or certainly not seriously damaging, that politicians court publicity for their views and for their representational work.

The situation is somewhat different when, as in the Abbeylara Sub-committee, the committee sees itself as having an inquisitorial role leading to findings of fact which may damage the good name of persons who are not members of the Oireachtas. The Houses themselves have provided a special set of Rules and Guidelines under the 1997 Compellability Act which are to govern “the conduct of proceedings which may give rise to findings of fact or to conclusions which could adversely affect or impugn the good name of any person” . These Rules and Guidelines deal, inter alia , with the matter of actual, or subjective bias. At Rule 5 it is stated:-

Rule 7 refers to an appeal from the ruling of the Chairman.

This, of course, reflects the general rule of the Oireachtas that members “should declare their interests” . It is perhaps a little surprising that the Sub-committee members should under the Rules and Guidelines make these declarations of interest out of the public eye; one must, I think, assume that the “ruling” by the Chairman of the main committee would, in a case where the member in question continued in membership of the Sub-committee, include a direction that the interests in question be declared publicly.

The Rules and Guidelines therefore recognise the need to guard against a risk of subjective bias. The matter of objective bias is more subtle, and would be difficult to provide for in a set of rules. In my view, however, where a committee deals in an inquisitorial fashion with persons who are not members of the Oireachtas and whose good name may be impugned, the normal rules of objective bias must apply. This follows directly from the admission of the Appellants that in these circumstances the members of the Sub-committee must act “judicially” .

The test for objective bias has been set out above. Neither in a court nor in a committee should the test be applied in an over-strict or exaggerated way. (See Bula v Tara (No. 6) . It is a “reasonable person” test. But on any such test it must in my view be unacceptable for members of an inquisitorial committee such as this to make public comments on the subject matter of the inquiry both in the run up to the inquiry and during its actual currency. The Gárda Applicants have exhibited documentary material in the pleadings containing scripts of television programmes (Questions and Answers, Prime Time) and press reports which include comments and discussion by members of the Sub-committee directly referring to the subject matter of the inquiry. In at least some cases members expressed strongly held views which would undoubtedly give rise to a reasonable apprehension of bias. In many of their submissions the Appellants compare the inquiry to be undertaken by the Abbeylara Sub-committee to inquiries carried out by tribunals under the 1921 Act. What would be the public view of a judicial, or indeed any other, Member of a 1921 Act tribunal if he or she were to appear regularly on television or give briefings and interviews to the Press expressing personal views on the subject matter of the tribunal? A moment’s consideration of such a scenario would show how grossly inappropriate it would be. The same standard must apply to an inquisitorial committee of the Oireachtas.

The Gárda Applicants say that given the nature of the work and life of members of the Oireachtas this must mean that they are automatically incapable of carrying out an inquiry such as that on Abbeylara. I would not go so far. Members of the Oireachtas have been given highly important constitutional duties; they have been elected by their constituents to fulfil these duties. If whether under Statute or otherwise they have been properly mandated to carry out an inquiry, I consider that they cannot be disabled from so doing by an automatic assumption of objective bias. If, however, they are to carry out such a proper inquiry, the members of such an inquiry committee would have to accept a self denying ordinance which would, for example, prevent them from carrying out any media appearances or interviews dealing with the subject matter of the inquiry both before and during its currency. This, of course, does not mean that the inquiry proceedings themselves should not be held in public; in most cases this would be desirable rather than otherwise.

It is interesting in this context to look at the references to bias in the Comparative Study into Tribunals of Inquiry and Parliamentary Inquiries (including Costs Comparison Report) published by the Committee of Public Accounts of Dail Eireann following the DIRT Inquiry. This document, as pointed out earlier, was provided to the court by the Attorney General as an appendix to his submissions to this court. The Comparative Study was undertaken by the Department of Finance and the Attorney General’s Office. One assumes that the Costs Comparison section of the Study was carried out by the Department of Finance and that the remaining text was provided by the Attorney General’s Office. At page 38 of the Study it is stated as follows:-

This is a clear and succinct statement of the problem. It is not an insoluble problem but it is one which must be recognised, faced and properly dealt with. It appears that it was neither recognised nor properly dealt with in the Sub-committee on Abbeylara and thus that Sub-committee is tainted with objective bias. It is not, however, necessary for this court to make the general declaration sought by the Respondents in their notice to vary. This would be to make an assumption of automatic objective bias arising from the very nature of the political and representational role of members of the Oireachtas. Apart from the undesirability in principle of making such an assumption, there was no evidence before the Divisional Court which would permit such a far-reaching finding.

Earlier in this judgment I have suggested that the Respondents’complaints concerning objective bias were closely connected with the overall concept of fair procedures and natural and constitutional justice. If fair procedures are to be maintained and if the taint of objective bias is to be avoided, the members of the Abbeylara Sub-committee, and any similar Committee, should not participate in media appearances and interviews, nor make statements to the media, during the period immediately prior to the Inquiry or during its currency.

I would not allow the appeal. However, I consider that the form of declaration granted by the Divisional Court is too wide. The declaratory relief should relate only to the inquiry in issue. I would agree with the form of Declaration proposed by Denham J., and with the consequential Order of Certiorari which she proposes to make. I would make no order on the Notice to Vary. It is not necessary to make any further order.

The tragic death of John Carthy on the 20th April, 2000 is agreed on all sides to be a matter which, in the public interest, merits proper and formal investigation. Both the Carthy family and the Gardaí who are the applicants in this case have expressed the preference that this should be done by means of an independent Tribunal of Inquiry with the powers set out in the Tribunals of Inquiry (Evidence) Act, 1921 as amended, to be conducted by an independent person. Such an inquiry would be, in the words of Hamilton C.J. in Haughey v. Moriarty [1993] CIR I at 55 “wholly independent of the political process”.

The Inquiry now pending, however, is not at all independent of the political process. It is an inquiry before a sub-Committee of a joint Oireachtas Committee being conducted by seven politicians, six deputies and one senator. This Committee claims the power to make findings of fact, including findings adverse to a person and capable of impugning his or her good name. It is claimed that this power may extend to a finding of unlawful killing. There is no statutory or express constitutional basis advanced for the existence of this power. It is said by the Committee to be “inherent” in the Oireachtas.

The first and most fundamental issue raised by this case, accordingly, is whether the sub-Committee is empowered to carry out the sort of inquiry they propose - one which may potentially lead to a finding of unlawful killing - solely on the basis of the alleged unwritten but inherent power. The exercise of such an allegedly inherent power is without historical precedent in the eighty years of Irish independence. It formerly existed in the United Kingdom but is said on high authority to have “disappeared” there, to be replaced by the Tribunal of Inquiry or other forms of extra parliamentary investigation. The Garda applicants say that there is no inherent power in the Oireachtas to hold any individual, whether a garda, a public servant or an ordinary citizen, directly and personally accountable to elected politicians in the Oireachtas. They also say that the Oireachtas, because of its political nature, is an unsuitable body to hold individuals accountable for specific incidents. But that is not the fundamental point, which relates simply to whether the Oireachtas has or has not the asserted inherent power.

In the light of certain submissions made to the Court it is important to be clear that certain issues do not arise. The case made by the Garda applicants, in my view, does not involve, directly or by implication, any attack upon the work of Oireachtas Committees in general, on the Public Accounts Committee in particular, on the Private Bill procedure, on the power of the Dáil to hold a government answerable to it or on its powers of scrutiny of the expenditure of public monies. Still less is the case “an attack on parliamentary democracy” as Mr. Shatter saw fit to submit. It is a challenge to a novel assertion of a power to hold individual citizens directly accountable to a parliamentary committee. This challenge may be well founded or ill-founded, but the act of making it is an assertion of the citizen’s right of access to the Courts and in no sense an attack on parliamentary democracy. Its content does not seek to challenge the established practices of the Oireachtas.

The Oireachtas Committee, of course, has a major role in aid of the legislative function which has been acknowledged since 1922. The practice of the Oireachtas to date is correctly stated in the judgment of Hamilton C.J. in Haughey v. Moriarty where he says:-

There is clearly a major distinction in principle between the exercise required to advise on the desirability of legislation on the one hand and that required to establish the truth of controverted facts about a past event, and perhaps to make so grave a finding as that of unlawful killing, on the other. Advising on the desirability of legislation requires no legal mandate: it can be done by any person but is plainly particularly appropriate to members of the Oireachtas, who have special powers to assist them in doing so. It relates to the future, not to the past and will not in itself affect the rights of any person in respect of past activities. It does not require an unbiased approach: on the contrary, legislation may quite properly arise out of the strong opinions and preconceptions of those elected to office. And it is an intrinsically political function since legislation is a political product. Adjudication on the propriety or otherwise of past behaviour, on the other hand, is not intrinsically a political function. As will be seen later in this judgment, where it has been attempted by political bodies the results have often been strikingly unhappy. It is unknown in this jurisdiction up to the present time and would represent a new form of direct personal accountability to politicians of ordinary citizens or at least such of them as are public servants.

The essential novelty of what is presently proposed is that the fact finding function, in a matter capable of grave repercussions for an individual, is proposed to be carried out by a committee of politicians rather than in a manner independent of the political process. The Garda applicants simply raise the question of whether this can be done without express authority.

There may be cases where it is difficult to draw a precise line of distinction between the two functions described in the citation from Chief Justice Hamilton above. Advice on the desirability of legislation on a particular topic may of course reflect the adviser’s view of past events or transactions. So long as this is genuinely incidental and not a mere device, this incidental overlap certainly does not, in my view, even potentially invalidate an exercise of the first kind. But what is proposed here is not a consideration of legislation, or possible legislation, which might incidentally involve an expression of some general view about the Abbeylara incident. It is proposed expressly to consider the fatal shooting and it is claimed that this consideration may lead to a finding of unlawful killing by some individual.

In order to decide whether the pending inquiry is a legitimate one, it is necessary first to examine precisely what is proposed. The salient facts have been set out in the judgment of the learned Chief Justice and of that of the Divisional Court: I gratefully adopt these statements. Nevertheless, ascertaining exactly what is proposed is not a straightforward exercise. Firstly, as the decision of the Divisional Court makes clear, the proposed inquiry changed considerably both in its form and in its legal nature in the months, and particularly in the weeks, prior to its first sitting. These changes are themselves the subject of separate challenges to their legitimacy. However, for the purpose of this first issue I intend to examine the sub-Committee’s proposed inquiry in the form in which it was represented, by the sub-Committee itself, to the Garda applicants. Secondly, there are aspects of the sub-Committee’s powers, such as the claimed power “to make findings of fact or conclusions” which are alleged by the appellants to have a meaning in law different from their ostensible meaning. I shall consider whether this is so or not at the end of this section.

All of the Garda applicants received letters requiring them to attend at the sub-Committee’s hearings. These letters and the accompanying documents contained the information available to the Garda applicants at the time when they were required to attend, and for a long time after that. While there have been certain clarifications, and arguably some deficiencies, in the information which has later come to hand, none of it alters the fundamental nature of the inquiry notified to them.

The deponent who swore an affidavit on behalf of all the applicants, Detective Garda Frank McHugh, said that he received a letter dated the 23rd April, 2001 which required him to attend “at hearings of the sub-Committee on the Abbeylara incident, commencing with a preliminary hearing at 11am on Tuesday 24th April, 2001 in room G2, Kildare House, Kildare Street, Dublin 2 and thereafter at such times and on such days as may be required by the sub-Committee.........”.

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

A number of documents were enclosed with this letter. They included, vitally, the “Rules and Guidelines for Committees in relation to the conduct of proceedings which may give rise to findings of fact or to conclusions which could Adversely Affect or Impugn the Good Name of any Person”. There was also enclosed the “Memorandum of Procedure on the conduct of proceedings by the sub-Committee on the Abbeylara incident under the provisions of the Committees of the Houses of the Oireachtas (Compellability Privileges and Immunities of Witnesses) Act, 1997 as amended by the Comptroller and Auditor General and Committees of the Houses of the Oireachtas (Special Provisions) Act, 1998 (hereinafter referred to as the ‘Compellability Acts’)”. There was also enclosed a copy of the Garda Report into the Abbeylara incident and a copy of some twenty-one submissions received from the public and certain organisations. Some of these were highly critical of the Gardaí.

The sub-Committee drew up a document entitled “Statement of Issues and List of Witnesses” . It was said to be a document of a preliminary nature and to arise out of the sub-Committee’s terms of reference. The document itself was intended to give “parties and witnesses” an indication of the areas to be covered by the inquiry. It was stated that “Parties will also have an opportunity to make submissions as to the issues, witnesses, and procedures”. The judgment of the learned Chief Justice sets out the relevant portions of this Issues document. Furthermore, at the conclusion of the document the sub-Committee listed, apparently as part of its agenda, the following matters:-

The manner in which the issues thus identified were interpreted by the Committee may be gleaned from a number of questions asked by the members of the Committee on the 26th April, 2000, the first day on which evidence was taken. Three questions by Deputy Shatter are illustrative. The first was directed through the Chairman of the Committee to the Commissioner of An Garda Síochána:-

On the same day, Deputy Shatter asked Chief Superintendent Culligan, (the officer in charge of the Garda investigation into the incident and the author of the report later adopted by the Commissioner) the following questions:-

Counsel for the Garda applicants submitted both in the High Court and in this Court that the issues identified suggested that the inquiry would consider the question of whether the late Mr. Carthy had been unlawfully killed. A finding that the final shot had been unnecessary because fired when the deceased was no longer a threat to any person would, in the applicant’s submission, amount to a conclusion or finding of unlawful killing . In the High Court, this question was the subject of argument and submission on behalf of the sub-Committee (other than Deputy Shatter), on the ninth day of the hearing, Tuesday 2nd October, 2001. The transcript records the following discussion between the Court and counsel for the sub-Committee:-

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

The reference in argument to “unlawful killing” was not an unexpected or incidental one. Apart from the fact that it was raised in submissions by Mr. Rogers on behalf of the Garda applicants, the argument returned to the topic on day 11 of the hearing, when Mr. Clarke S.C. was making submissions on behalf of the Committee. He was asked:-

In subsequent discussion with Mr. Shatter, who conducted the case on his own behalf, on day 14 of the hearing, the Court mentioned in the context of debate on whether the members of the sub-Committee were impeachable for bias that “....... One of the conclusions which it is had been said that this Committee can come up with is a conclusion that an unlawful killing took place with severe repercussions for members of the Gardaí.......”. There was no dissent from this proposition.

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

The phrase unlawful killing has long had a specific meaning in legal usage. It describes the offence of manslaughter: in an indictment for that offence the prosecution allege that the defendant “unlawfully killed” the deceased. A slightly broader meaning is found in Section 4 of the Criminal Justice Act, 1964 , which provides for the state of mind required before an unlawful killing can be classed as murder: “Where a person kills another unlawfully the killing shall not be murder unless the accused person intended to kill, or cause serious injury to, some person.......”.

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

It was clearly indicated to the Garda applicants that the Committee before which they were summoned was one that intended to arrive at “findings of fact or conclusions.” This was communicated to them both in the “Rules and Guidelines” document which was enclosed with their direction to attend and in the “Statements of Issues” document. Lengthy submissions as to the meaning of this phrase were addressed to the Court by Counsel on behalf of all parties. It is essential to achieve a proper understanding of the origin and legal significance of the phrase. It must also be recalled that these “findings” might be adverse to a person or impugn his good name. Moreover, the decision to use this form of words was the sub-Committee’s, presumably taken after study of the submissions referred to above.

On the 1st July, 1999 the sub-Committees on Compellability of the Dáil and Seanad Committees on Procedure and Privileges, meeting jointly, adopted the rules and guidelines which bear that date and which are exhibited in the affidavit of Mr. McHugh. In the definition section, the following definition occurs:-

It thus appears that the phrase “findings of fact or conclusions” , on which so much debate has centered is not of direct statutory origin but arises in a document made under statutory authority to “make rules and draw up and issue guidelines relating to the conduct of proceedings, and to procedure generally, of committees” (emphasis added). The rules which follow the definition section just quoted provide at Rule 1 that:-

Rule 13, which deals with the situation arising where a report of a sub-Committee is referred to the Committee which appointed it provides that such committee may accept, reject or refer back such a report. The rule continues:-

From these citations from the document which is, apparently, the origin of the disputed phrase, it will be seen that “facts found” are distinguished from “opinion (s) expressed”. It will also be seen that in the case of a sub-Committee such as that before which the Garda applicants were summoned, the Committee which appointed it may make recommendations additional to those of the sub-Committee if these arise from facts founds or opinions expressed in the report of the sub-Committee. To put this in another way, in relation to facts found, the Committee may not add recommendations unless these arise out of the facts as found by the sub-Committee. To this extent, it appears, the Committee is bound by the sub-Committee’s finding of fact.

There is another, much more significant, legal effect of the report of a parliamentary committee or sub-Committee. In the law of defamation, the general rule applying to the defence of fair comment is that the defence will fail unless the facts on which the comment is based are truly and correctly stated. This, however, does not apply “where comment is made on facts stated in a privileged document e.g. a parliamentary paper......” . See Gatley on Libel and Slander 8th edition paragraph 719. The classic case on this topic is Mangena v. Wright [1909] 2 KB 958 . At page 977 Phillimore J. said:-

This proposition may fairly be described as a common law rule since the decision, though much debated, and sometimes confined strictly to parliamentary and judicial utterances and publications, has never been reversed. It is of interest in the present context for two reasons. Firstly, it is a plain instance of a legal effect, in the area of the applicants right to their good name, of the report of a parliamentary committee or sub-Committee. Secondly, in defining the scope of the exception to the rule that facts grounding a defamatory comment must be proved to be true, Phillimore J. equates the parliamentary to the judicial utterance for that purpose.

It thus appears that if the sub-Committee is correct in claiming the power to make a finding of unlawful killing, or a finding of fact which inevitably gave rise to the implication that the deceased had been unlawfully killed, the applicants or any one of them considered by the Committee to have been involved in such unlawful killing could be exposed to media or other comment on the basis that the commentator could rely on the sub-Committee’s report to establish the truth of the facts on which he based the comment. No contradiction would be possible in order to rebut the Committee’s version of the facts for the purpose of rebutting a defence of fair comment.

The Attorney General, the Committee and Deputy Shatter all emphasised that neither the Committee, nor its sub-Committee, nor any body other than a court, could make “findings of fact” which had legal effect in the sense of binding other tribunals or exposing a person who is the subject of an adverse finding to criminal penalties or civil liabilities. They did not address the rule in Mangena v. Wright .

They submitted that the findings of a sub-Committee such as the present one, like those of a Tribunal of Inquiry, are legally sterile in this sense of having no legal consequences. Accordingly, the phrase “findings of fact or conclusions” should not be interpreted literally, or in the same way as the phrase would be interpreted in the context of a finding by a court. It should, they said, be interpreted as meaning no more than an expression of opinion by the sub-Committee. It was clearly necessary, they submitted, that the sub-Committee should in this sense make findings of fact if it was to perform its functions at all.

In making this submission they relied in particular on Goodman International v. Mr. Justice Hamilton [1992] 2 IR 542. This case featured largely in the arguments on both sides of the present appeal, on different aspects of this first issue. The phrase “legally sterile” became current as a result of the Goodman International decision. It originates, however, in the judgment of Brennan J. in Victoria v. Australian Building Construction Employees and Building Labourers Federation [1982] 152 CLR 25 .

The Attorney General, in particular, conceded that the phrase “findings of fact” was one which should not, perhaps, have been used because of it connotations of a binding judicial finding of fact, or of an administration of justice. Properly interpreted, he said, it meant no more than an expression of opinion. It was analogous, he said, to the expression of opinion offered by a critic of art or music: he gives his view but does not adjudicate. Even if the Court did not share this view, it should nonetheless refrain from granting the first declaration. It could, alternatively, excise the words “findings of fact” from the Committee’s remit or substitute them with another form of words which would make clear what was undoubtedly the position in law: that the result of the sub-Committee’s deliberations had the status of opinion only.

Mr. Diarmuid McGuinness SC, who appeared with the Attorney General and followed him, conceded that the results of the Committee’s inquiry was clearly capable of affecting the applicants good name. He agreed that it could also affect their careers. It was not, he said, sterile in that sense although it was “legally sterile” in the sense of being incapable of constituting a conviction or binding finding. He accepted that the findings might have a non-legal effect especially since the applicants were public servants in a police force under the control of the Executive, which was in turn responsible to Dáil Eireann. He submitted that there might be a distinction to be drawn between the powers of the Committee to make findings in this sense in relation to a public servant on the one hand and in relation to a private citizen on the other. He submitted that there was an area of accountability arising from a person’s status as a member of the police force which might not perhaps apply in the case of a private citizen.

Counsel for the Committee “essentially” adopted the Attorney General’s submissions and specifically submitted that “the overall status of the Committee’s report is that of opinion only”. He then went on to make the remarks quoted above to the effect that the sub-Committee could make a finding of unlawful killing but could not find a person guilty of a crime.

The Attorney General very realistically acknowledged that this phrase has forensic connotations: it is the phrase used to describe the binding findings of a judge or jury on the factual issues before a court. Moreover, this forensic use must have been obvious to those who decided to employ the phrase in relation to Committees of the Oireachtas. I have no doubt that the phrase according to its ordinary and natural meaning describes a rigorous analytical process leading to factual conclusions, conducted by a body uniquely equipped or authorised to do so. It is the diametric opposite, in my view, of the sort of opinion expressed about a work of art or music: matters of taste and artistic impression are known to vary from person to person, and not to be susceptible of rigorous, objectively justifiable, demonstration. When it is recalled that the hypothetical finding of fact in this case might involve a finding as serious as “unlawful killing”, made by a parliamentary sub-Committee acting under the authority of both Houses, I believe that it is quite fanciful to consider that a reasonable man or woman in the street would not regard a report so phrased as a solemn finding of demonstrated wrongdoing.

If in relation to one of the applicants it was found as a fact by this parliamentary group that he or she had unlawfully killed the deceased man, I do not believe that the alleged technical status of such finding as being (contrary to its obvious and natural meaning) merely an opinion would at all avail him or her in the eyes of the ordinary reasonable member of the community. It would strike such persons as a quibble. Nor could this be regarded as unreasonable since, in law, the “findings” are given the special status of being presumed to be true for the purpose of justifying any comment based on them. Nor would it be unreasonable having regard to the Oxford English Dictionary meanings. There, the primary meaning of the word “findings” is “the action or an instance of finding or discovering” , and the relevant special meaning is “the result of a judicial or other formal inquiry; a verdict”.

The arguments of the appellants draw heavily on the proposition, undoubtedly correct, that the findings of a Tribunal of Inquiry are said on high authority to be “legally sterile” in the sense of having no strictly legal consequences. This quality is sufficient to prevent the results of a tribunal’s inquiries being regarded as an administration of justice within the meaning of Article 34 of the Constitution. The Garda applicants do not submit that the “findings of fact” by the sub-Committee would be an administration of justice. But they say, and it has not been disputed, that while such findings have no legal effect they may have many and far reaching effects.

Moreover, I have to say that I find the phrase “legally sterile” extremely unattractive in any realistic human context. Counsel for one of the appellants, on being asked whether he would repeat the phrase without the qualifying adverb said, very naturally, that he could not do so.

One is therefore left with an entity described as a “finding of fact or conclusion” which, it is agreed, could in practice have an adverse affect on an individual. But that, the appellants contend, does not take away from the central truth that “in law” it is of no effect at all.

I do not find appealing a line of argument which sets up a distinction between a universally accepted state of fact in real life and a quite contrary state of law. If this is the law then it can only be described as a legal fiction. No ordinary person, such as one of the applicants, on receiving the letter of directions to attend could possibly interpret it in the artificial sense suggested. And, even more significantly, no ordinary person hearing that a parliamentary committee had found as a fact that a named person had unlawfully killed another would be expected, by anyone other than a small minority of lawyers, to reflect that that of course was merely a matter of opinion. It is true that even the most adverse imaginable finding of fact or conclusion by the sub-Committee will not amount to a conviction, and will not determine any persons rights and liabilities in civil law and will not expose him to any penalty or liability. But that is not the same as saying it has “no” effect. Not merely is it conceded that it would have effects: these effects would sound, inter alia, in the area of the affected person’s constitutional rights. When, later in this judgment, I consider the United States cases on the House un-American Activities Committee (HUAC) it will be seen that many persons have been economically ruined and socially outcast by virtue of decisions which are “legally sterile” .

I believe the foregoing demonstrates the wisdom of the judgment of this Court in re Haughey where it was held, in the words of O’Dhálaigh C.J.:-

The use of the formula “legally sterile” by all the appellants in this case derives from a submission based on an analogy with Tribunals of Inquiry. If, they say, Tribunals of Inquiry can lawfully make findings adverse to an individual, because such findings are legally sterile, therefore a parliamentary committee must have the same power. This, in my view, is to misunderstand the decision in Goodman International , cited above. In that case, the activities of a Tribunal of Inquiry were challenged on the basis that they amounted to an “administration of justice” which, by virtue of Article 34 of the Constitution, was reserved exclusively for the Courts. This challenge failed on the basis that the report of a tribunal was devoid of legal consequences - a binding judgment and consequential orders - which are the hallmark of an administration of justice. It was not argued by the applicants in the present case that the proposed activities of the Committee would be an administration of justice. The quite different point is made that the proposed activities of the Committee are simply without legal authority. There is accordingly no analogy whatever between the two challenges: they are different in nature.

It is trite law that words are to be interpreted according to their natural and ordinary meaning unless there is a legal reason (such as a statutory definition) for interpreting them otherwise. No such consideration applies here. Moreover, these are not simply words: they are the words of an Oireachtas Committee making a regulation under statutory authority. If a court were to excise some of these words and substituted others it would be usurping the role of the Committee which, under Section 13 of the 1997 Act, is exclusive to it. Precisely the same observation applies to a suggested deletion. The words must stand or fall according to their ordinary meaning.

In light of the above, and for the purpose of the first issue, I regard the sub-Committee on the Abbeylara incident as one purporting to exercise a power of inquiry into a past event, the death of Mr. Carthy, with a view to arriving at findings of fact or conclusions. The Committee specifically envisages that these “could aversely affect or impugn the good name of (some) person” and specifically the Garda applicants or some of them. The Committee says that the findings open to it may include a finding of unlawful killing.

I regard the phrase “...... which could adversely affect or impugn the good name of any person” as including a disjunctive meaning. That is to say, it applies to findings of fact or conclusions which might impugn a person’s good name or (otherwise or additionally) adversely affect him. Indeed it was expressly conceded in the course of argument that an adverse finding could have both effects.

It is not disputed by the Garda applicants that the findings of the Committee, no matter how adverse, could not bind another tribunal or in themselves impose civil or criminal legal liability. But in light of the grave consequences which I am satisfied a finding of responsibility in any degree for Mr. Carthy’s death would carry, I believe that the proposed inquiry can fairly be described as an adjudicatory one. The decision of the Committee in this grave matter is more aptly described as an adjudication than by any comparison with artistic criticism. The Committee claims the right to say to the applicants, if it thinks fit, “You should not have shot him” . It says that the evidence before it will establish “how the man was shot and who shot him” ; having done that “the inquiry can make a finding of unlawful killing.....” .

The enormous gravity of these findings make them different in kind, and not merely in degree, from a newspaper critic’s review “panning” a concert or a play. It was not disputed, and was indisputable, that the consequences of the findings could be grave for an individual, in terms of his or her career and otherwise.

To be brought by compulsory process before a committee claiming those powers, and to be on risk of that Parliamentary Committee making a “finding of fact” that a particular person shot the deceased man and that such shooting was an unlawful killing in my view can only be regarded as a form of accountability. The decision after such process of accountability is fairly described as adjudicatory. To point out, as is in any event obvious, that the inquiry “......cannot find a person guilty of a crime” does not in any way detract from these facts.

My conclusion in this regard is fortified by what I am satisfied is a sound analogy with the contentions made in Re Haughey [1971] IR 217, at 263. There, Mr. Haughey’s claims to the procedural rights he considered necessary, including a right cross-examine, was resisted by the State on the ground that Mr. Haughey was a witness only and that a witness in civil proceedings was not entitled to these rights. In dealing with this submission, this Court went behind the form and surface of Mr. Haughey’s status and considered the reality. Mr. Haughey, they found, was a person against whom allegations were being

Having ascertained the nature of the proposed inquiry it is possible to pose this question. The appellants contend that the power to inquire, and specifically to enquire as the Abbeylara sub-Committee intends to do, is inherent in the Oireachtas by reason of the nature of a parliamentary body. This, they say, is because a power of inquiry is “normally and necessarily exercised by a legislature in a democratic State” , in the words of Hamilton C.J. in Haughey v. Moriarty [1999] 3 IR 1 at 32. They admit that there is no express constitutional or statutory provision allowing for the conduct of a parliamentary inquiry of this sort. They say however that this absence of provision is unsurprising because the right is inherent and requires no constitutional or statutory support. They argue very strongly that, once it is acknowledged that the Oireachtas may establish a Tribunal of Inquiry (or at least play some part in its establishment) it follows that the Oireachtas can conduct an inquiry itself because nemo dat quod non habet . They say a number of statutes, from the Oireachtas Witnesses Oaths Act, 1924 to the Comptroller and Auditor General etc. Act, 1998 demonstrate that it is envisaged that witnesses will appear before the Oireachtas or a committee thereof and, the appellants contend, that in turn makes no sense unless there is a power to adjudicate upon their evidence and make decisions. The appellants also say that the Oireachtas is entrusted with specific powers of a quasi judicial nature in relation to the impeachment of the President or of judges of the Superior Courts, so that the proposed function will not be a unique one.

The respondents advanced four points, three of which were agreed by the appellants. They said that some legal authority was required before the Houses could establish an inquiry of the sort proposed, which they described as adjudicatory. Secondly, they said that there was no legislative authority for such inquiry, which was agreed. Thirdly, there was no express constitutional authority which, at least in the argument before this Court, was also agreed. The point of disagreement was as to whether there was an inherent power to hold the sort of adjudicatory inquiry in question here.

Inherency means the existence of a particular quality or characteristic in an entity as part of its essential, defining, nature. It is not something called into being: it was always there, co-existent with the entity itself.

This reliance on inherency has dictated that a good deal of the argument before this Court has been historical and comparative in character. If a quality is alleged to be inherent in a parliamentary body, so that it was there from the beginning, one might expect that proposition to be demonstrable historically. It should equally be demonstrable in fully analogous institutions. The Appellants have gone to considerable lengths to support their case in both of these ways. This judgment necessarily reflects the historical and comparative emphasis of the Appellants argument. An aspect of this is that the great bulk of the historical and comparative material relied upon has been English or American in origin. No single undisputed instance of the exercise of an inherent power of inquiry into past disputes by the Oireachtas has been offered, and only one disputed instance in a period of eighty years. Accordingly, I now turn to discuss the English materials relied upon.

None of the appellants seek to argue that the Oireachtas possesses the power to constitute an inquiry of the relevant sort simply because a power of that nature was exercised, with no statutory authority, over a number of centuries by the Westminster Parliament. But it is contended that the apparent inherency of such a power in that Parliament, and in the Congress of the United States, illustrates the inherency of the power in representative assemblies generally. The Gardaí say that the United Kingdom precedent is, in terms of English Common Law, (the only law applicable), sui generis and incapable of being a precedent or indicator of the powers of other parliaments. They say that the general power of inquiry in the Westminster Parliament was used capriciously and oppressively, and in a nakedly political manner, and for that reason disappeared when superceded by the Tribunals of Inquiry (Evidence) Act, 1921. The appellants counter that the 1921 Act did not replace the inherent power of inquiry but was additional to it. It is irrelevant, they say, that the inherent power has not actually been exercised in the United Kingdom since then.

Both sides relied on a number of scholarly works in connection with this aspect of the argument, but notably the authoritative work of Professor George W. Keeton Trial by Tribunal . It would be pointless to attempt to summarise the truly extraordinary story told in Chapters II and III of Professor Keeton’s work about the English, later the British, Parliamentary Committee of Inquiry. I can only urge that it be read by anyone with a serious interest in the topic. It is not an edifying tale. In Haughey v. Moriarty , at page 54 of the report Chief Justice Hamilton briefly reviewed the background to the 1921 Act. He said:

That passage amply explains the background to the 1921 Act but does not do full justice to the extraordinary, unique nature and perfidious historical record of the Select Committee of Inquiry. This body claimed origins going back to a time beyond recorded history, and based in the function of the “High Court of Parliament” whose members were said to be the “general inquisitors” of the land. But it did not actually assume the form in which it became familiar until the later 17th century. Keeton places the first true Select Committee of Inquiry in the year 1678. A number of its features, revealed between that date and the early eighteenth century, have been remarkably persistent.

First, it was from the beginning associated with the “inherent” Parliamentary power of arrest. As it happens, the great diarist Samuel Pepys was the person into whose activities the first Select Committee inquired. He was arrested on “Speakers warrant” and “found guilty” by a parliamentary committee of piracy, Popery and treachery. The Committee was composed of his bitterest enemies and chaired by a man who openly coveted his office as Secretary of the Navy. Professor Keeton comments:-

In this Inquiry, and all that followed, the power to arrest, and the power to inquire were assumed to inhere in the House of Commons. Sometimes, indeed, it appears that the only purpose of the Inquiry was to arrest the enemies of the Committee: thus in 1715 Robert Walpole had the Tory leaders of the previous government, Harley and Bollingbroke, committed to the Tower by a committee of inquiry into the peace of Utrecht. In 1695 a Select Committee of Inquiry was given “power to send for persons papers and records”. This is most interesting, having regard to the terms of Section 2 of the Irish Act of 1997. The power to send for persons papers and records was invariably conferred on successive English Select Committees. It has however no role in the Irish scheme of things except as a sort of vestigial tail indicative of the origins, at least in the minds of the draftsman, of the power to inquire.

Furthermore, the privileges and immunities of witnesses, conferred on persons summoned before tribunals since at least the Special Commission Act of 1888 had its origins in a failed Bill of 1745. The enemies of Sir Robert Walpole introduced the measure in order to encourage members of Parliament and public servants to tell what they had seen under his long administration ending in 1742.

Professor Keeton describes how, since the mid-nineteenth century, there had been a drift towards independent commissions sometimes consisting wholly of judges, sometimes of a judge and two members of parliament, one from each side, and sometimes of a single judge, instead of Parliamentary Committees. The Parnell Commission of 1888/1889 was the best known of these Victorian tribunals, though the diligence of the applicants counsel has found an earlier example.

This Commission, as is well known, investigated the alleged complicity of Charles Stewart Parnell in political violence, as well as other topics. The publication by the London Times of letters, eventually revealed as forgeries, linking Parnell to such violence was an important part to the background to the Commission . The political background was that it was called into being not long after the Liberal government had fallen on the Home Rule issue, to be replaced by a Tory administration. It was universally agreed that some form of inquiry was required but, perhaps ironically in retrospect, both Parnell and the Liberals demanded a parliamentary inquiry. This was undoubtedly because each of these interests knew that its own supporters would be represented on such an inquiry so that even if they were in a minority there would be no unanimous condemnation. Not unnaturally, they credited the Tory members with the intention of finding against them regardless of the evidence. Not withstanding this the Commission composed of three judges led to results overwhelmingly satisfactory to Parnell. This followed the destruction of the only real evidence against him, the forged letters, in a cross-examination of extraordinary skill and drama. But the principle éclat of his vindication derived from its coming from an independent tribunal rather than from one part of a committee selected on party lines.

The Act which established the Commission, the Special Commission Act, 1888 anticipates the Act of 1921 in many particulars. It provided to the Commissioners, in addition to the special powers of the Act, all the powers of judges of the High Court in an action and in particular all powers rights and privileges in respect of the enforcing of the attendance of witnesses and the examining of them on oath; the compelling of the production of documents; the punishing of persons guilty of contempt and other vital matters. A similar course was followed in subsequent years in a number of instances including an 1893 investigation of a fatal shooting of rioters by troops in Wakefield. When, a few years later, the Westminster Parliament reverted to the Committee of Inquiry format to investigate the “Jameson raid” into the Transvaal, the result was a fiasco. Professor Keeton comments:-

The Committee imputed all the blame for the raid to the insignificant men who had actually conducted it, and entirely acquitted their political and pro-consular leaders. The latter, in turn, claimed to know nothing. The conscious, deliberate and bi-partisan dishonesty of the Parliamentary proceedings is well described in Elizabeth, Countess of Longford’s book, The Jameson Raid.

Enough has been said to illustrate the proposition that the Marconi scandal was merely one of the causes leading to the superceding of parliamentary inquiries into allegations of misfeasance by independent ones, in the United Kingdom, and not the sole cause as the Committees submissions suggest. So total has this superceding been that Professor Keeton instances the Marconi inquiry as the only example of its kind in the twentieth century, up to the time he wrote. Counsel for the appellants were not able to refer us to any later exception, either in this country or in Great Britain, with the sole alleged exception of the Public Accounts Committee Inquiry of 1970.

I have no doubt that, as a matter of history, the Parliamentary Committee of Inquiry into scandals, negligence, misfeasance, fatalities at the hands of police or troops and military disasters, had become thoroughly discredited by 1921. Moreover, on the evidence, the Westminster Parliament has not been persuaded to return to this method of inquiry into such matters, with or without procedural improvements. The Tribunal of Inquiry has, in that jurisdiction, continued to be the preferred instrument of inquiry. Where other forms of inquiry have been employed (such as the Denning inquiry into the Profumo scandal of 1963 and the more recent Scott inquiry into arms sales) there has been no reverting to a parliamentary model and no departure from a recognition of the need for an investigation to be conducted or chaired by an independent person, frequently but not invariably a judge.

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

The Committee, in their submissions, claim that it is too large a leap to say that parliamentary inquiries of the relevant sort have been discontinued “simply because of a politically partisan inquiry in England in 1912”. (Submissions, page 22). They go on to submit, as logically they must, that the powers conferred by the Act of 1921 was an ‘ addition’ to the power to hold a parliamentary inquiry and not a substitution for it.

It appears from the historical material cited above that the entire history of the Select Committee of Inquiry, and not merely the Marconi Inquiry of 1912, was tainted with corruption and gross political partisanship.

This historical background has importance for many aspects of the present case. Since the power to conduct an inquiry of the relevant sort is claimed to be inherent, it must follow that it came into being with the Oireachtas. It would be quite inconsistent with the fact that both the Constitutions of 1922 and of 1937 view all political authority as deriving from the people if it were argued that an “inherent” power could come into being at some later date. Accordingly, it is relevant to inquire as to the precise state of the common law and statute law on this question at the time of the adoption of the 1922 Constitution.

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

In Longley and Davidson - The New Roles of Parliamentary Committees (1998), there is a chapter in the British House of Commons by SA Walkland. He states:-

It thus appears that the power to investigate public misconduct by a select committee must be regarded as extinct in the United Kingdom. Certainly, it has not been exercised since the year 1916.

Quite independent of the foregoing, it appears that the power to hold a parliamentary inquiry was not regarded in English law as inhering in any parliament other than the House of Commons. In Kielly v. Carson and Ors. (4 Moo PC 63) [1841] the Newfoundland House of Assembly claimed to have the same inherent powers as the House of Commons. In particular they claimed power of arrest, historically linked to the power of inquiry. The Privy Council, containing such early Victorian luminaries as Lords Lyndhurst, Brougham, Denman, Abinger, Cottenham and Campbell, concurred in the judgment of Mr. Baron Park who said:-

It thus appears that in English law the House of Commons is sui generis and is no guide to the question of what is normal or necessary in legislative assemblies. It may be important to recall that this decision does not turn on, or at all involve, the proposition that colonial assemblies were inferior to the Westminster Parliament: the case for their enjoyment of parallel powers was put on the basis that they were analogous bodies.

The argument for the possession of such powers exclusively by Westminster, based on “ancient usage and prescription” makes no sense other than in terms of the common law. But that common law is what was applied to Saorstát Eireann by Article 73 of the 1922 Constitution. Accordingly it is plain to demonstration that powers derived from the ancient, anomalous and archaic “High Court of Parliament” did not apply to an Oireachtas which was an entirely new entity and which traced no descent from that shadowy body.

This point is given renewed force by a comparative exercise. Section 49 of the Commonwealth of Australia Constitution Act, 1900 vested in the Australian legislature all the powers privileges and immunities of the Parliament of the United Kingdom. A similar provision had appeared in Section 11 of the British North America Act 1867, in reference to the Parliament of Canada. Still more significantly, the Home Rule Bill of 1912 and the Government of Ireland Act, 1920 contained the same formula. Thus, had Ireland achieved a more or less independent legislature under either of those measures such legislature would have enjoyed the Westminster Parliament’s power of inquiry, as it then was. But it would have enjoyed it by express parliamentary grant. Neither of the proposed Parliaments enjoying such grant came into being in what became the Irish Free State, and later the Republic of Ireland. The Act of 1920 did, however, become the underpinning for the Government of Northern Ireland. As regards what is now the Republic, the Act was disapplied by the Free State Act (Consequential Provisions) Act, 1922. Neither the Treaty nor the Free State Constitution contained any grant or assertion of Westminister’s powers privileges or immunities.

Two significant points, in my view, arise from the foregoing. It emphasises that, as a matter of English law, the privileges of the Westminster Parliament, including those of inquiry and arrest or summons, can be enjoyed by another parliament only by statutory grant. Accordingly, they are not, as a matter of common law, inherent in any other parliament. By virtue of Article 73 of the Free State Constitution, which provides that the laws in force immediately prior to its enactment, including common law, continued to be of full force and effect unless inconsistent with the Constitution, such privileges were not applicable to Dáil or Seanad Eireann. Secondly, the submission of the Committee that the Court should take judicial notice of the fact that sworn inquiries are a feature of parliament “throughout the Western world” is placed in a context which dramatically reduces its weight. There was no evidence before the Divisional Court or this Court as to the legal basis for the conduct of inquiries in other common law jurisdictions, other than the United States. The evidence, cited above, from the British Statute Book indicates that the basis of a power to enquire is express parliamentary grant of the Westminster Parliament’s privileges which clearly does not apply in this country. Since Article 50 of the 1937 Constitution is in terms almost identical to Article 73 of that of 1922, it does not seem possible to contend for any change in this position.

In Irish law, the dislocation and discontinuity represented by the enactment of the 1922 Constitution is very striking. I believe that the position is correctly stated in Professor Leo Kohn’s work “The constitution of the Irish Free State”, in the passage cited in the judgment of the Divisional Court, and in the judgment of Kingsmill Moore J. in The Irish Employers Mutual Assurance Association [1955] IR 176, in the passage cited in the judgment of Denham J.

All three appellants also supported the existence of an inherent power in the Oireachtas to constitute a committee of inquiry of the relevant sort by analogy with the role of the Oireachtas in initiating an inquiry by an independent tribunal pursuant to the 1921 Act as amended. The nature of the support derived from the Oireachtas function in relation to tribunals varied from one appellant to another and it is fair to say that the case advanced by the Attorney General in this respect was by far the most comprehensive.

The Committee in their written submissions said that “If Parliament can pass a resolution setting up a Tribunal of Inquiry, then Parliament must be able to conduct such an investigation itself”. (Page 22). On the next page they said:-

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

The Divisional Court dealt with equivalent submissions in part on the basis of a finding that “the legislature is not the appointing body of a tribunal under the 1921 Act”. I have no doubt that this is correct and follows from the finding of Costello J. in Goodman v. Hamilton [1992] 2 IR 542 and 554/555. The relevant part of the finding is set out in the judgment of the Divisional Court. It is to the effect that neither the Oireachtas or the Minister can establish a tribunal of inquiry under statutory power. Such a tribunal is established by the Minister’s administrative act. If additionally, the two Houses resolve that it is expedient to establish an inquiry then a tribunal established by the Minister has the statutory powers conferred by the 1921 Act as amended. In summary, there can be no tribunal without the Minister’s administrative act establishing it, but without the Oireachtas resolutions such a tribunal will lack the statutory investigative powers.

That, I think, would be sufficient to deal with the point as advanced by the Committee and by Mr. Shatter in this Court. The Attorney General, however, argues that the establishment of an inquiry under the 1921 Act is “at the very least in part established by Parliament”. (Emphasis added). He relied on Article 28.4.3 of the Constitution, with its reference to “....... a tribunal appointed by the Government or a Minister of the Government on the authority of the Houses of the Oireachtas......” to support his submission. He then went on to submit, on the basis of Goodman International v. Mr. Justice Hamilton [1992] 2 IR 542 that tribunals of inquiry were “bodies whose existence is (at the very least in part) authorised, initiated and established by the Oireachtas”.

I consider that the Attorney General may well be correct, especially in light of his citation from Article 28 of the Constitution, in the submission set out above. But this does not, in my view, carry the consequence that since the Oireachtas has this (at least) partial power to authorise the establishment of a tribunal, it must therefore be entitled to carry out the Inquiry itself or by Committee. A legislature very frequently authorises an outside person or body to do things which it has no power to do itself. The multiplicity of statutes conferring powers on courts, on officers of the Garda Síochána and on regulatory bodies of different sorts illustrate this. Thus, for example, the Oireachtas in the Criminal Justice Act, 1984 authorised the extension of a person’s detention under Section 4 of that Act by a garda officer not below a certain rank. It undoubtedly had power to do so. But its possession of that power does not imply that the Oireachtas or either House thereof, or any member thereof, itself or himself has power to authorise an extension of the person’s detention. The fundamental misapprehension in this line of argument is contained in the submission of the Committee, and in the sentence “It is submitted that it is difficult to see how parliament could delegate to another body powers wider than those which it possesses itself”. (Emphasis added).

The Oireachtas is not “delegating” the power to extend detention to a garda superintendent; it is conferring it upon him by law. In many cases where a person or body is vested by law with a power, it would be most objectionable if the power were exercised by a representative political group: usually, the person or body on whom such power is conferred is bound to act independently and in accordance with law, like a Tax Inspector in raising an assessment. The maxim “nemo dat quod non habet”, cited by the Committee, applies to items in which there is property, and exclusive title. It has no application to the Legislative organ of Government acting as such. A legislature creates a power in another person: it does not have to transfer a power it enjoys itself. In the case of a Tribunal, it passes a resolution which, by Statute, has a determined effect in law.

This distinction is indeed clearly stated in the judgment of Hederman J. in Goodman International . At page 597 of the report he says:-

There is a still more fundamental point. In Haughey v. Moriarty [1999] 3 IR 1 at p55, this Court described the form of inquiry which the Oireachtas may, under the 1921 Act, “authorise” or initiate, as one “wholly independent of the political process”. This passage has already been cited at length.

If this is an accurate description of the nature of a tribunal of inquiry - that it is quite independent of the political process - then it is clear that all arguments in support of a parliamentary committee of inquiry on the basis of analogy with, or implication from, the parliamentary role in the establishment of a tribunal to which the 1921 Act applies must fail. A power wholly or partly to initiate a tribunal whose salient characteristic is that it is quite independent of the political process cannot support the existence of a power, inherent or implied, to establish a form of inquiry which is wholly political and into whose final deliberations there is no non-political input. The two entities are quite different in their essential composition. Indeed, Chief Justice Hamilton identifies the policy behind the 1921 Act as arising from the “inherent defects..... graphically illustrated” in the political system of inquiry.

It will be remembered that the claimed power of the sub-Committee to make “findings of fact or........ conclusions which could adversely affect or impugn the good name of any person” arose in the “Rules and Guidelines” made pursuant to Section 13 of the 1997 Act. The Committee’s powers to make such findings of fact or conclusions might therefore involve the relevant rule being intra vires the power conferred.

Relevant to this question, but also of more general relevance, is the question of the powers of the Oireachtas itself in the course of its proceedings to “adversely affect or impugn the good name” of a person outside the Oireachtas.

Counsel for the Committee, and Mr. Shatter, claimed that the applicants submissions were fatally undermined and rendered futile by the fact that, either following an inquiry by the Dáil itself, or without any such inquiry, statements adverse to them could be made in Dáil Eireann in respect of which they would have no remedy by reason of the absolute privilege conferred by Article 15.13.

The Constitution prescribes in considerable detail the functions of the respective Houses of the Oireachtas but does not purport to lay down how these functions shall be discharged. Instead, by Article 15.10 it confers a power on each House to “make its own rules and Standing Orders, with power to attach penalties for the infringement.....”. The Standing Orders provided to this Court by the parties are those of 1997: their first page makes it clear that they are in an unbroken series of standing orders, adopted or amended on many occasions, extending back to the 11th September, 1922. The validity of the Dáil’s having, in the aftermath of the enactment of the Constitution in 1937, simply tacitly adopted the standing orders of the former House was upheld in Re Haughey [1971] IR 217.

Standing Order 58 provides:-

Standing Order 58(11) provides:-

The Standing Order, at sub-paragraphs 3 - 7, amongst other things makes provision for a system whereby a person who considers that he has been the subject of a defamatory reference can make a submission in writing to the Ceann Comhairle. The Ceann Comhairle’s powers may however be pre-empted by the member requiring that the matter be referred to the Committee on Procedure and Privileges, or the Ceann Comhairle may himself refer the matter to that Committee. If the Committee decides to consider the submission, then, by Standing Order 58(4)(b)(ii):-

If the Committee decides that, prima facie , an abuse of privilege has occurred, it may order that a response by the person who made this submission in specified terms be published in the official report or be laid before the Dáil, or that the member who made the utterance be required to make a personal explanation to the House “in effect to withdraw without qualification the utterance made or to clarify otherwise the circumstances that gave rise to the utterance as may be deemed appropriate”. If he refuses to do this the Ceann Comhairle may reprimand him.

This Standing Order was introduced in 1995. Prior to that, according to the information given in introducing it by a Minister of State, the “strict Parliamentary Rule” was that no reference could be made to a person outside the House.

The submissions before this Court of the Committee and Mr. Shatter in particular appear wholly to disregard this Standing Order. At paragraph 21 of their written submissions, the Committee say:-

This does not appear to be true. Under Standing Orders no statement could be made about a named or identifiable person which would adversely affect his reputation, or adversely affect him in the respect of dealings or associations with others, or injure him in his occupation, trade, office or financial credit. It has already been conceded, and is in any event obvious, that an adverse report suggestive of unlawful killing by a member of the Garda Síochána (or even a much less severely critical report) could damage him in his reputation and in his membership of An Garda Síochána which, of course, is in law an “office” . It is also his or her “occupation” . It is very striking that the formulation “adverse affect” is used both in Standing Order 58 and in the “Rules and Guidelines” document. In the first instance, the formulation is used to protect a person from utterances having that effect: in the second it purports expressly to contemplate such witnesses. It is also striking that the concept in Standing Order 58 of “adverse affect in reputation” is indistinguishable from “impugn the good name” , as used in the Rules.

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

It was submitted to this Court that, in prohibiting utterances “in the nature of being defamatory” , Standing Order 58 must be regarded, by analogy with the civil law of defamation, as not applying to utterances which could be shown to be true. This does not appear to be so. The definition of “utterance in the nature of being defamatory”, which is what is prohibited, focuses entirely on the form and effect of the statement, without regard to whether it is true or false. Moreover, if a complaint is made, the Committee on Procedure and Privileges is specifically forbidden by the sub-paragraph quoted above from considering or judging the truth (or otherwise) of the statement made in the Dáil. These provisions of Standing Order 58 does not appear to be consistent with the Committees oral or written submissions.

Finally, it was submitted that, despite the contents of Order 58 a member of the Garda Síochána might be damaged by a member of the House who decided to breach the rule and make a defamatory statement regardless of it. It was pointed out that this unfortunate situation was not unknown, though no specific examples of breach were given. It might also have been said that the penalties available to be imposed on such a member are not significant.

In my view, it does not lie in the mouth of any litigant, and particularly not of members of the Oireachtas, to support an argument by relying o the possibility that one of their own number might be in flagrant breach of the rules which Dáil Eireann has devised for the conduct of its own business. It must be presumed in my view, and it would be most insulting to members of Dáil Eireann not to presume, that they will observe their own standing orders, very specific in its terms, particularly where one of these exists to protect the reputations and livelihood of all citizens, deputies and private citizens alike. Not to make this presumption would be to envisage a course of consciously unlawful behaviour by deputies which, if established, would make them quite unfit for their high office. There is no evidence that any deputy would behave in this way.

I have already expressed the view that Dáil Eireann, when it authorises or initiates the application of the Tribunals of Inquiry Act, 1921 to a tribunal appointed by a minister, is not in any sense “delegating” powers to the Tribunal but is conferring them by a legislative process. On that basis amongst others I have rejected the argument that, since the House has power to confer powers on a tribunal, it must necessarily possess those powers itself. I believe however that the House in referring a matter to a committee of its own members, and the Committee in subsequently referring it to a sub-Committee is performing an act of delegation. This, indeed, seems to be the view of the Committee itself: at paragraph 22 of its written submissions it says:-

Can it be said that (to limit the discussion to the Dáil) that six members of the House to whom a particular item of business has been delegated enjoy, jointly or severally, the power to make utterances which adversely affect a person, even though that power is specifically denied them as members of the Dáil? If this is so, it would be a case of the delegate having more powers than the delegator which, as the Committee itself says in a different context at paragraph 29, quoted above, is a logical impossibility.

I would also hold that the “rules” made pursuant to Section 13 of the Act of 1997 are not effective to confer a power to “make findings of fact or ...... conclusions which could adversely affect or impugn the name of any person” . I would so hold for two reasons. Firstly, in the effective part of the instrument this formulation appears only in the definition section. It does not purport to repeal, or circumscribe in effect, Standing Order 58. If that Standing Order continues of full force and effect then the definition section is a manifest nonsense: there can be no such committee composed of deputies. Secondly, I do not consider that the definition section of a rule which, according to the Statute authorising its making is confined to “the conduct of proceedings and procedures generally of committees” could confer a new substantive function on a Committee in so important a matter. The “conduct of proceedings” clearly relates to matters procedural: the formulation in the definition section of the Rules relates to matters of substance vitally affecting the rights, including constitutional rights, of non-members of the Oireachtas. If such rights are to be affected, this must in my view be achieved by statute.

The Standing Order excluding utterances with “adverse affect” plainly establishes that Dáil Eireann was not seen by its members who made the Standing Orders as having any form of adjudicatory role. Moreover, since the term “utterances” is broad enough to include statements of opinion as well as statements of purported fact it seems clear that those members contemplated that the House would prescind from any form of judgmental remark or opinion calculated to damage an individual person. Such a decision would be quite logical in balancing the citizen’s right to his good name, guaranteed in Article 40.3.2, where the State’s obligation to vindicate it is also declared, with the absolute privilege accorded to utterances in Dáil Eireann. If this restraint were not applicable to a committee, the citizen would be denied a protection there which he or she is accorded in Dáil Eireann itself.

Standing Order 58 plainly requires that the Dáil conduct its functions without adverse comment on any individual person, and in particular a non-deputy. It appears to have been able to conduct its affairs in this way for many decades. Those functions, as was agreed on the hearing of this appeal, consist of the legislative function, the financial functions laid down in the Constitution and the function described as “holding the Executive to account” . Moreover, it has not been disputed that, in aid of the legislative function at least, Dáil Eireann requires information from various sources some of which is most effectively gathered by calling witnesses before a Committee of the House or a Joint Committee.

As I understand the Applicant’s claim, there is nothing in it that would interfere with this process either in relation to broad issues of policy or the lessons to be learned from specific dramatic episodes. Mr. Shatter T.D. in the course of his submissions put before the Court a report of a Committee of the New Zealand Parliament into certain policing episodes. These took place in that country in connection with a visit there of the Chinese President. The matter was thoroughly investigated, and quite far reaching recommendations made, in a short period of time. But the Tribunal did not consider the blame worthiness or otherwise of individuals, police officers or civilians, much less whether any person had committed acts amounting to a criminal offence. Two things emerge from a consideration of the report provided by Mr. Shatter. The first was that the Committee was in no way hampered in the discharge of its parliamentary duty by not being able to report adversely on any individual person. The second was that it was in fact assisted in performing this duty, in so far as its total time devoted to the taking of evidence was under thirty hours. If the Committee proposed to make reports adverse to individuals, and particularly to consider suggestions that any such persons might have acted in a way that would represent a breach of the criminal law, their task would have been infinitely more complex. Every such person would be entitled to representation and would be foolish not to avail of it. The report of the New Zealand Committee appears to me to emphasise that, apart from the need to protect the reputations of persons outside parliament, Standing Order 58 or its equivalent has the merit of making parliamentary hearings much more rapid and less legalistic that would otherwise be the case. (See: Inquiry into matters relating to the visit of the President of China to New Zealand in 1999 - report of the Justice and Electoral Committee December 2000.) I agree with the observations of McGuinness J. as to the essential distinction between this type of Inquiry and one focussing on or including the culpability of individuals.

The appellants place these cases in the forefront of their argument. I do not find them impressive as authority for the propositions advanced. First, they relate to a polity as unique and exceptional as Great Britain, from whose jurisprudence their dominant cases on this topic derive. Secondly, the American authorities have led, through the agency of the House Committee on un-American Activities to notorious injustices eloquently chronicled by many jurists and commentators. The presently dominant strain of authority seems to have arisen in the mid 1920s in the context of a widely felt desire to investigate the “Teapot Dome” scandal. This line of authority was, not long afterwards, adapted to legalise the activities of the House un-American Activities (HUAC) Committee which disfigured American public life for more than twenty years. Thirdly, the appellants submissions ignore an alternative strand of the US jurisprudence, which, in my view, is more adapted to Irish conditions and to the protection of rights thought important in this jurisdiction. The U.S. cases, however, graphically illustrate that “legally sterile” decisions of legislative committees can be utterly destructive in the lives of private citizens.

As to the uniqueness of the American dispensation in this regard, it is unnecessary to look further than the authority cited by the respondents. This is Longley and Davidson - The New Roles of Parliamentary Committees [1998] 227. The authors say:-

If the American system is indeed exceptional or deviant it is clearly unreliable as a guide to what powers are “normally and necessarily exercised by a legislature in a democratic State” , to quote Haughey v. Moriarity [1999] 3 IR 1 at 32.

Furthermore, the dominant strand of American authorities makes it clear that the powers of Congressional Committees in the United States have been continuously exercised since pre-independence days and are based on a view of their powers as directly derivative from British law. It must be remembered that the purpose of the American Revolution was not at bottom an ideological one directed at establishing a radically new form of government, but one based on the proposition that the Americans of the time were denied the rights and liberties of an Englishman. In the words of the Declaration of Independence they believed that “A long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute depotism.....”, in contrast, that is to the freedom justly the due to a subject of the Crown.

It is thus not inconsistent with the revolutionary origin of their Government that American legislatures assumed to themselves powers of inquiry, of arrest, of summons and of committal identical to those claimed by Westminster. They had done so even before the Revolution. In the Teapot Dome scandal case referred to above, McGrain v. Dougherty [1927] 273 US 161 this origin was put beyond doubt:-

Counsel for the respondents submit, in my view correctly, that this central passage correctly states the historical justification for the power of inquiry accepted in the United States and links that power inseparably, as it was linked in Britain, to an inherent power to arrest. One must also consider the undoubted historical fact of the constant use of the American power of inquiry in contrast with the desuetude of the power in the common law countries on this side of the Atlantic.

Although there was legal and academic dissent from the view of the Supreme Court in McGrain v. Dougherty , there was little opposition to the notion that the Teapot Dome scandal should be investigated. But the power of investigation as an inherent congressional prerogative, thus established after it had been long restricted, was eleven years later used to support the notorious activities of the Houses un-American Activities Committee. It seems most unlikely that those who supported the decision in McGrain and even those who, in 1938, voted for the establishment of the HUAC for six months only, had any inkling that its mandate would be renewed for decades, that it would cause more human misery and injustice than any legislative organ in the free world, while at the same time establishing the careers of such American notables as Joseph McCarthy and Richard Nixon. This tragic tale is set out in restrained detail in the dissenting judgment in Barenblatt v. United States (360 Us 109) [1959] which Mr. Justice Black wrote and in which the Chief Justice and Mr. Justice Douglas joined. They chronicled the exclusion of persons whom others had described as communists or fellow travellers from federal employment, the professions, the academy and the community as a whole. All this, it must be noted, was achieved without the great bulk of such persons being convicted or even accused of any criminal offence, and as a result of findings and pronouncements most of which were quite devoid of any legal affect. Persons were jailed for refusing to say whether, in their opinion, other persons were or ever had been communists. The other victims of HUAC suffered all the disabilities of being criminally convicted, except actual imprisonment, with none of the protections of the criminal process. And many, such as Barenblatt, brought before the Committee on the word of a person who himself gave evidence under threat of imprisonment, were jailed for refusing to answer the Committee’s questions. In response to this, Justice Black and his colleagues said:-

The salient lesson from the HUAC cases is that a person can be ruined simply by exposure and condemnation as much as by conviction. This, indeed, according to the minority in Barenblatt was the principal purpose and effect of the Committee’s activities. It is important, I believe, to realise that a body making findings of fact and authoritative pronouncements, but without the power to make actual orders or impose penalties, has its being and its effects wholly in the sphere of public opinion and private reputation. Mr. Justice Black’s dissenting judgment contains a detailed prospectus of how a pronouncement that is “legally sterile” can destroy the life of a citizen. And yet, Black lamented, “The Court still sits” . The same point has been recently made by the distinguished scholar Ronald Dworkin (Dworkin: New York Review of Books 28/2/02). Looking back at these events from a safe distance, but also seeking to find some lessons for the post-September 11 world, Dworkin reflected that after the Second World War the United States had created “...... A red scare that destroyed the lives of many of its citizens because their political opinions were unpopular. Much of this was unconstitutional but the Supreme Court tolerated almost all of it. We are ashamed now of what we did then: we count the Courts past tolerance of ...... McCarthyism as amongst the worst stains on its record”.

I stress that this judgment pays considerable attention to the American cases because they have been placed in the forefront of the appellants’ argument. It is unfortunate, from the appellants’ point of view, that many of these cases deal with the notorious House un-American Activities Committee. Fairness compels one to add what must be obvious in any event, that there is no comparison whatever between the activities of that body and those proposed by the Oireachtas sub-Committee. But in neither of the jurisdictions, the United Kingdom and the United States, where an “inherent” parliamentary power of inquiry is or has been acknowledged, has its record been an inspiring one from the point of view of human rights or civil liberties.

One basis for the majority judgment in Barenblatt has already been noted in here: the custom of congressional inquiry was so old and well established as to be unassailable in view of the “persuasive gloss of legislative history” or the “actual legislative practice”. Neither of these can have any application in this jurisdiction. Their absence is suggestive.

The alternative basis of the majority decision is based on Watkins v. United States [1957] 354 US 178. In a lengthy but, I believe, flawed historical analysis the Court there linked the power to inquire with the power to punish for contempt and observed that “the rudiments of the power to punish for contempt of Congress comes to us from the pages of English history”. It then observes, at page 191, that in contemporary England “important investigations, like those conducted in America by Congressional Committees, are made by Royal Commissions of Inquiry...... they are removed from the turbulent forces of politics and partisan considerations”. The judgment of the Court goes on to point out the much greater scope for judicial review of congressional activity in America than in England and the relatively recent origin of any significant recourse to Congressional Inquiries. No case is mentioned between Kilbourn v. Thompson in 1880 and McGrain in 1927.

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

This, however, is at variance with the much more scholarly historical analysis in Kilbourn v. Thompson [1880] 103 US 168. There, it was desired to have a congressional inquiry into the bankruptcy of a real estate syndicate. A person refused to give evidence and was ordered to be arrested, and subsequently declined to answer questions. He was then ordered to be detained by the Sergeant-At-Arms who was ordered to hold him in custody in the common jail of the district of Columbia.

The Supreme Court concurred in the judgment of Mr. Justice Miller who analysed the British practice very learnedly. He observed that:-

The learned judge then discussed the original possession by this body of a curial or judicial power, and cases on this topic. He came eventually to the case already cited in this judgment Kielly v. Carson , and discussed it together with other cases which he said affirmed it. He then continued:-

The learned judge then turned to analyse the powers of Congress under the United States Constitution. He held eventually that the warrant of the Speaker for the committal of Kilbourn was without justification.

It appears to me that this judgment does what those in McGrain and Watkin emphatically do not do: it analyses the question of whether the power possessed by the House of Commons devolved upon the Houses of Congress. It finds that it did not. The later cases on the other hand, merely state without analysis that the prerogative or privilege powers “came to us from” the House of Commons. Moreover, McGrain does not challenge the historical analysis of the earlier case, merely distinguishing it on the basis that Miller J. had also found that the dispute in relation to the bankrupt syndicate was appropriate to a civil or criminal court, and not to the legislature.

It may be thus seen that the American Congressional Committee power is unique, and not typical or illustrative of what is “inherent” in a legislature; that it arises from a view (and in my opinion a misguided one) of transmission directly from the House of Commons, presumably before the end of the colonial period; that there is another and in my view more soundly based historical analysis negativing such transmission. Whichever of these views is correct, neither can have any conceivable application, by analogy or otherwise, to the Irish situation. This is because all of the appellants have specifically eschewed any suggestion that the power is inherent in the Oireachtas because it was implicitly transferred from Westminster. Such a contention is demonstrably untrue both legally and historically.

It is of interest to note that the views of the State and Mr. Shatter as to the non-impeachability for bias of members of a legislative committee appear to have been accepted in the United States. Apart from the egregious example of McCarthy, contemporary events suggest that no impropriety is perceived in summoning the former Chief Executive Officer of an enormous company before a committee of twenty-two federal legislators eighteen of whom have received money from the Company.

The appellants rely on a number of statutory provisions as suggesting, by necessary implication, the presence of an inherent power to conduct the type of inquiry proposed. If this is not a necessary implication, they say, then all of the Acts in question are pointless and redundant. The relevant statutes are the Oireachtas Witnesses Oaths Act, 1924 , the Committee of Public Accounts of Dáil Eireann (Privilege and Procedure) Act, 1970; the Committees of the Houses of the Oireachtas (Privilege and Procedure) Act, 1976; the Select Committee on Legislation and Security of Dáil Eireann (Privilege and Immunity) Act, 1994; the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997 and the Comptroller and Auditor General and Committees of the Houses of the Oireachtas (Special Provisions) Act, 1998 .

I have had the opportunity of reading the judgment about to be delivered by Mr. Justice Geoghegan. I am in general agreement with his observations about these Acts, and that allows me to shorten my own. There can be no doubt that Acts over a period of nearly eighty years have envisaged the attendances of witnesses before the Oireachtas or Oireachtas Committees: if this were not so it would, for example, be impossible to conduct the promotion and opposition to Private Bills which has gone on throughout that long period. But none of the pieces of legislation relied on either confers a power to make findings of fact of the kind in question here or necessarily implies the existence of such power.

In addition to the Statutes commented upon by Geoghegan J. I would mention the Act of 1976, which is a short Act of three sections conferring privilege and immunities on members of either House of the Oireachtas in respect of utterances in or before a committee. It is effective in that regard no matter whether witnesses are called or not. It has no conceivable significance, by implication or otherwise, in relation to the power to conduct an inquiry of the sort now envisaged.

The Select Committee on Legislation and Security of Dáil Eireann (Privilege and Immunity) Act, 1994 is of considerable interest. It conferred a privilege and immunity on witnesses, as opposed to members, but only those who appeared before the particular Committee named in the title of the measure. This was the well remembered Committee appointed, as the schedule to the Act states “For the particular purpose of hearing statements and the answering of members questions...... upon circumstances surrounding.......” five particular events in November, 1994, which led to the fall of the Government then in power.

The Attorney General, in the course of his submissions, said that:-

The Act of 1994 demonstrates the fallacy in this argument. The relevant Select Committee made no findings of fact at all but simply transmitted the transcript of its proceedings to Dáil Eireann. But the examination of the various matters set out in the schedule to the Act, and the hearing of the witnesses in connection with this examination was thought to be a useful exercise notwithstanding that the Committee, from its inception, intended to find no facts and to express no opinions. Against this background it can be seen that the Act nor merely does not give rise to the implication contended for but affirmatively demonstrates as a matter of Oireachtas history that the power to summon witnesses, the conferring of privileges on these witnesses and the conferring of privilege on members of a committee do not imply that such committee will make any findings, or express any opinions whatsoever, let alone findings or conclusions of the kind in question here. In the Rules and Guidelines document referred to above, committees are required by Rule 1 to “identify, from the start of their consideration of any matter the nature and purpose of any investigation or proceeding to be conducted by them and, in particular, whether it is proposed to arrive at findings of fact or to express opinions”. (Emphasis added)

This provision, and the specific example of the Committee to which the 1994 Act relates, in my view invalidate the submission of the Attorney. That submission would be perfectly correct if applied to a court: there could be no conceivable purpose or justification in a court’s receiving evidence unless for the purpose of forming a view about it. But that, as recent history demonstrates, is a point of divergence between the Courts and the Oireachtas: the latter may hear evidence for the purpose of putting it on the record or for some other purpose without making any attempt to, or having intention of, forming a view about it. There is no question, as a matter of history, of the 1994 Select Committee having originally intended to report, but being unable to do so because it could not arrive at a consensus. There is in fact no obligation on a parliamentary committee in the ordinary course of its business to arrive at a consensus: it can act by a majority. A consideration of the Dáil resolution related to the 1994 Committee positively demonstrates that the work envisaged was the hearing of statements and the answering of members questions by “all persons the Committee deems appropriate” . There was no provision for findings or for a determination of any sort, and it was clearly not thought that the authority to “report to Dáil Eireann” implied any necessity to make findings of fact. It involved merely the transmission of the transcript.

Even apart from this, however, there is a distinction between the hearing of evidence and acting on it, and the making of adverse findings of fact. A committee hearing evidence, for example, in support of or opposition to a Private Bill will reach a conclusion. Typically it will at least reach a conclusion on whether the title to the Bill has been proved or not. Similarly, a committee may be greatly assisted by hearing the evidence of a particular person on a specific issue, as the recent D.I.R.T. Committee was. But nothing of this nature is, or approximates to, the makings of findings of fact or conclusions adverse to a person or likely to impugn his good name, or indeed to lead to damage in connection with his “dealings or associations with others, or injury in his trade office or financial credit” to quote Standing Order 58. The ability to make findings of fact or conclusions of this sort can only arise, I believe, if it is expressly and validly conferred by statute.

I wish to emphasise my agreement with the Divisional Court that, for the reasons they give, the case of Re Haughey [1971] IR 217 is not authority one way or the other on the question of the existence of an inherent power. I also agree with what Geoghegan J. has to say on this topic: his view of the tactical constraints on the plaintiffs counsel in that case is, I believe, unanswerable. I would also observe that Haughey’s case related to an inquiry which at least arguably had statutory authorisation given the recitation of the Dáil resolution in the special Act passed in 1970. Mr. Haughey’s advisors accurately identified weaknesses, both constitutional and procedural, in the steps taken against their client. The decision on their complaints has been enormously influential in a number of areas of law and especially (and very relevantly, perhaps, to other aspects of the present case) that relating to fundamental fairness of procedures. In that regard, the applicability and authority of the decision have been fully accepted by all sides to the present appeal. But the case should not, in my view, be read as deciding by implication anything it did not decide expressly. It is of assistance to neither side on the question of the inherency of the power alleged.

The last Statute I wish to consider is the Comptroller and Auditor General and Committees of the Houses of the Oireachtas (Special Provisions) Act, 1998. This measure was passed in the context of the D.I.R.T. Committee and permitted the Comptroller and Auditor General, at the request of the Dáil, to examine the assessment and collection of income tax during a specified period, being tax that was required to be deducted by financial institutions from interest payable on deposits. The Comptroller and Auditor General was given wide powers in this respect. The Act also provides for the extension of privilege to certain persons on the defined occasions.

The effect of this Act was that much, if not all, of the investigatory work in relation to the D.I.R.T. Inquiry was carried out outside the Oireachtas by a constitutional officer of guaranteed and recognised independence. In the final report of the “sub-Committee on certain revenue matters”, as the D.I.R.T. sub-Committee was called, it was stated that:-

Apart from this, the Act of 1998 with its detailed provisions for the Comptroller and Auditor General and certain other persons to require the attendance of citizens before them and to examine them on oath is of course an example of a statutory power specifically conferred for a particular purpose. The Act, however, is specific to the Public Accounts Committee in the particular matter to which the necessary Dáil resolution relates. It has no significance, by implication or otherwise, for the question of whether the purported inherent power to hold an inquiry of the kind proposed by the sub-Committee into the Abbeylara incident exists or not.

The D.I.R.T. Inquiry not merely considered the fiscal matter referred to it but went on to consider the questions of parliamentary inquiries generally and their relationship to other forms of inquiries. In the record of these discussions, a position which is much more nuanced and, it may be, more realistic than that advanced in argument on the hearing of this appeal was adopted. At their meeting of the 20th November, 2000 they invited the Attorney General to appear before the Committee and discussed with him a number of topics including, as Deputy Durkan, put it:-

The Chairman of the Committee, in discussion with the Attorney General raised a very similar issue as did Deputy Doherty. The Attorney expressed his confidence that the D.I.R.T. Committee had correctly considered the subject matter of their inquiry and went on:-

In further exchanges with members of the Committee the Attorney again praised the specific inquiry it had carried out and went on:-

The foregoing, both questions and answers, obviously has significance in relation to the question of bias and impeachability. But more generally, it shows a realisation that there are issues which a parliamentary committee should not approach, in part because it may lack the time or resources to do so but principally because practising politicians may not be in a position to provide the appearance of impartiality necessary when dealing with very grave allegations. This real and honestly expressed inhibition does not suggest that the Oireachtas has a general power to inquire in an adjudicatory manner about the doings of individual in grave matters with potentially serious consequences.

In Part VI, Chapter 16, of the D.I.R.T. report the existence of matters inappropriate for parliamentary inquiry is fully acknowledged. I am far from sure, however, that the line is drawn in an appropriate place. At paragraph 4 the Committee says the following:-

The citation is from Haughey v. Moriarty : it forms part of the much longer citation, set out earlier in this judgment.

It seems to me more than possible that, with great respect to them, the members of the D.I.R.T. Committee may have misinterpreted the passage they cite. The learned former Chief Justice was making the point, undoubtedly correctly, that the process of inquiry by tribunal is wholly independent of the

On the other hand, there would appear to be absolutely no reason, even on the basis of what the D.I.R.T. Committee itself says, why an Oireachtas Committee should consider itself debarred from “probing issues” which are essentially of a “.......... policy nature”. That, one would have thought, is a central feature of the Oireachtas Committee. For example the Oireachtas Committee on marriage breakdown, which was referred to several times in the course of the appeal, was of precisely that nature and, by general consensus certainly among the parties to the appeal, was very successful. Certainly, it trenched on no-one’s rights in the way in which the present sub-Committee is alleged to do.

Before leaving the topic of the D.I.R.T. Committee, I wish to express my agreement with the comments of Geoghegan J. on the Affidavit of Sean Cromien in this case. Mr. Cromien is almost an epitome of a well informed citizen. He draws attention to an obvious difficulty in a purely political system of inquiry.

Apart from the inherent power which the appellants assert, no citizen, whether he holds office in the public service or not (except possibly a member of the staff of the Oireachtas), is personally accountable to the Oireachtas or any member, committee or sub-Committee thereof. All citizens are accountable to the law and their rights and liabilities in this regard will be determined by the Courts. Additionally, citizens may have different areas of responsibility or accountability arising from their status or occupation. In the present case, the applicants are members of An Garda Síochána. By the Garda Síochána Act, 1924 and the Police Forces (Amalgamation) Act, 1925 the control of the Garda Síochána is vested in the Commissioner. More generally, by the Ministers and Secretaries Act, 1924 the function of policing is assigned to the Department of Justice. This, in turn, is headed by the Minister who with his colleagues “shall be collectively responsible for all matters concerning the Departments of State.......”. By Article 28.4 of the Constitution the Government is responsible to Dáil Eireann. The Commissioner is not directly or personally responsible to the Dáil or the Oireachtas.

It appears to me that foregoing is an exhaustive statement of responsibilities in law for policing matters. The legal and constitutional arrangements for the control of policing are particularly sensitive because it is important that the force be operationally independent while it is of course vital that it be generally responsible to the Government. There is no doubt that, from the point of view of an individual applicant, he or she is under the control of the Commissioner through the various channels existing within the Guards. The latter is responsible to the Minister and the Government, which is responsible to the Dáil. But I cannot see that either as a private citizen or as a member of the Garda Síochána any of the applicants are directly and individually accountable to the Oireachtas at common law or by statute. If a member of the Guards were so accountable I do not see why any individual public servant would be exempt from this individual accountability or, in a suitable case, any ordinary citizen. If any citizen, guard or otherwise, is to be directly accountable in general or in some circumstances, to the Oireachtas, I believe such accountability must be imposed by Statute. I do not believe that the people, in adopting a constitution in 1937, had before them the view that it contained the seeds of such responsibility. I do not believe that it does. If the Oireachtas were enabled to send for any citizen and to reach findings of fact or conclusions which could be adverse to him and affect his reputation and his employment, it would indeed be functioning as a “High Court of Parliament” and its members would indeed be “general inquisitors of the Realm” , to use the archaic language employed by the English courts to describe the former powers of the Westminster Parliament. I have not heard anything that convinces me that there is in our Constitution anything which confers such a power on the Oireachtas, either in relation to civil or public servants or in relation to citizens generally. I agree with the treatment by Denham J. of the impermissability of any implication from the Constitution of a power to hold the type of inquiry proposed.

It was said many times on behalf of the appellants that, even if the respondents were correct in law in saying that there was no inherent power to hold this inquiry, their proceedings were nonetheless in some sense futile because that position could be rectified by the passing of “a two section Act” . I wish emphatically to express my agreement with the judgment of Geoghegan J. in this regard. That point is quite irrelevant to the case made on behalf of the Gardaí which must necessarily be based on the state of the law as it now is. If the Court were to be influenced by the possibility of future legislation it would, ironically, be trespassing into the legislative area by assuming that the Oireachtas would legislate in some particular fashion. A statutorily conferred power to hold an inquiry such as that proposed might raise quite different issues to those raised by the claimed inherent power: it is quite impossible to anticipate what issues might arise under legislation which does not exist, and it is improper to attempt to do so.

I would not allow the appeal of the Appellants against the first Order. I would however make some changes in the form of the Order as will appear below.

Because of my conclusion that there is no power in the Oireachtas to hold an inquiry of the type proposed, anything I say on the other issues raised is obiter. However, I wish to make a few observations on two of them because I think that to do so may be helpful to persons involved in hearings of one sort or another in the future. In relation to two other topics, that of justiciability and that relating to the sub-Committees terms of reference, I respectfully agree with the observations of McGuinness J. and have nothing to add. I am also in general agreement with her observations on bias.

This topic arose in two senses in the course of the hearing of this appeal. Firstly, it was contended by the respondents that the proposed inquiry was afflicted by what they termed “structural bias” , that is to say bias arising from the mere fact that the members of the Committee were all, by definition, public representatives. It was alleged that elected representatives could not bring the necessary impartiality to bear on the inquiry: they were afflicted by a presumptive bias arising from the fact that they were dependent on a renewal of their mandate. Alternatively, it was alleged, three members of the sub-Committee - the chairman, Deputy Shatter, and Deputy Magennis had manifested objective bias by making various public utterances, during the course of the hearing, in the print or electronic media. Grave exception was taken to remarks made by Deputy Howlin in the course of the hearings.

In the pleadings and submissions, all appellants maintained the position that members of the Committee, as public representatives, were simply not impeachable for bias. The sub-Committee was an Oireachtas body which had to be composed of members of the Oireachtas; such persons were entitled to have and express views, even strong views; the hearing was not of a judgmental or adjudicatory nature; therefore no member of the Committee could be impeached for any kind of bias, structural or otherwise, even of the most obvious or egregious kind.

However, in the course of the reply by counsel for the Committee to the submissions of the respondents, the Committee’s position changed. They first stated that they simply did not wish to express any view on the topic of bias but eventually conceded that members of the Committee could be impeached for objective bias, that is for conduct which would give rise in the minds of a reasonable person to an apprehension of bias. The Attorney General and Deputy Shatter did not change their positions on this matter. However, the Attorney conceded, and Deputy Shatter did not concede, that a person appointed to conduct an inquiry under the 1921 Act, would be impeachable for bias.

No appellant, however, contended that the proposed inquiry was not bound by the rules of natural justice. This concept has been alternatively described in Irish law as constitutional justice since the judgment of Walsh J. in MacDonald v. Bord na gCon [1965] IR 217. In either form, it now represents an impressive and sophisticated body of law. Originally, however, classic administrative law was expressed in just two Latin maxims: audi alterem partem - that both sides must be heard - and nemo iudex in sua causa , the rule against bias. I would not be prepared to hold that fully half of that irreducible essence of the rules of natural justice has no application to a committee such as the present, especially having regard to the grave consequences which, it is conceded on all sides, the result of its deliberations may have. Indeed, it seems to me extraordinary to contend that a person liable to be afflicted to the extent conceded in argument is not entitled to challenge one or more of those involved in the fact finding process even for the most egregious and unambiguously expressed bias. That, certainly, was the law in 17th century England when, as we have seen, Samuel Pepys was without legal remedy against a committee composed of his bitterest enemies and chaired by a man who did not conceal that he wished to enjoy Pepys office. It is also true that invulnerability of the members of that Committee to allegations of bias arose from their status as members of Parliament and thus “general inquisitors of the realm”. But the law has moved since then and for upwards of two hundred years has excluded a person with a bias or interest, subjective or objective, from sitting in judgment on another. I do not believe that any exclusion of elected representatives from this rule ever formed part of the law of Ireland. Even if it did, which I do not accept, it has certainly not survived the Constitution of 1937 with its obligation on the State to “defend and vindicate” the personal rights of the citizen amongst which his or her right to good name is specifically mentioned.

Having regard to my conclusion on the first issue discussed in this judgment it is not necessary for me to rule on the allegations either of structural or of objective bias. But I would make certain general observations, so obvious that they might be considered trite. A person who sits in judgment on the actions of another must act in a quasi judicial fashion. He must clearly avoid bias; what is less well understood is that he must also avoid the appearance of bias. One obvious course of conduct which risks giving rise to an appearance of bias is to discuss either the issues being inquired into, or the procedures adopted for the inquiry, outside the context of the inquiry itself. It is therefore undesirable for persons sitting in a quasi judicial capacity to make themselves available for interview, discussion programmes, or comment of any sort on either substantive or procedural issues during the hearing. Members of the Oireachtas would, I imagine, be amazed to see a judge or a juror behaving in this fashion: for precisely the same reasons restraint in this area is required of

Where a person is accused on the basis of false statements of fact, or denied his civil or constitutional rights on the same basis, cross-examination of the perpetrators of these falsehoods is the great weapon available to him for his own vindication. Falsehoods may arise through deliberate calculated perjury (as in the case of Parnell) through misapprehension, through incomplete knowledge, through bias or prejudice, through failure of memory or delusion. In some cases a witness may not be aware that his evidence is false. A witness may be telling the literal truth but refrain, or be compelled to refrain, from giving a context which puts it in a completely different light. And a witness called to prove a fact favourable to one side may have a great deal of information which he is not invited to give in evidence, favourable to the other party.

Applying that general principle to the facts of that case, this Court found that a person against whom damaging allegations were made were entitled to the following “minimum protection” :-

Without these rights:-

Accordingly, the right to cross-examine one’s accusers is a constitutional right and not a concession. It applies, as Haughey’s case affirmatively demonstrates, in an Oireachtas Committee or sub-Committee as well as in any other forum in which a citizen may be accused. It is an essential, constitutionally guaranteed, aspect of fair procedures.

It follows from the foregoing that the right of cross-examination may not be unreasonably confined or hampered in terms of the time allowed or otherwise. A person is, of course, entitled to cross-examine himself but equally entitled to do so by counsel. Cross-examination is a special skill and usually an acquired one, of which a thorough knowledge of the facts of a particular case is merely the foundation. A person without experience of the art is very unlikely to be able to conduct an effective cross-examination.

As it happens, the greatest demonstration of the utility of cross-examination of which I am aware is furnished by the case already discussed in another context, that of Parnell. Mr. Parnell had been accused of many heinous things, some on the basis of perjured evidence supported by forged documents, produced by a witness procured by his deep-pocketed political and commercial enemies. This conspiracy - it can be called nothing else - was destroyed in cross-examination of remarkable skill carried out over a period of several days by the great Irish advocate Sir Charles Russell Q.C. The witness was quite destroyed, did not attend for the fifth day of his cross-examination, made affidavits admitting perjury and forgery and committed suicide when the police came to arrest him. At a stroke, Parnell was transformed from a prisoner in the dock of public opinion to a vindicated accuser.

This cross-examination took time and required the patience of the Tribunal. It involved many passages (including one where the witness was made to write out a series of apparently randomly selected words) when the point being made must have been utterly obscure to the listeners. The Tribunal were required to have faith in the advocate, and the faith was of course fully justified.

The cross-examination took place immediately after the witness, Piggott, had given evidence. Within a few days Parnell had been vindicated and within a few weeks had received damages and a full apology from his principle accuser, The Times newspaper. There were many other allegations against him, mostly of a political sort which, of their nature, were almost impossible to demonstrate to be false, as had been done with Piggott and his forgeries. But the effect of the destruction of Piggott, immediately after his direct evidence, was to transform Parnell’s ability to meet the other charges and to destroy the credibility of his accusers in general. (See R. Barry O’Brien “Life of Lord Russell of Killowen”, London 1900).

None of this would have been possible had Russell had been debarred from cross-examination, limited in his time for that purpose, been compelled to seek permission to cross-examine with reasons, or been compelled to defer his cross-examination until all witnesses had been examined by the Commission.

In a case where there are many witnesses, cross-examination of the first may very significantly alter the tone and emphasis, and even the content, of succeeding testimony.

Cross-examination adds considerably to the length of time which proceedings will take. But it is an essential, constitutionally guaranteed, right which has been the means of the vindication of innocent people.

The proposed restrictions on cross-examination in this case have been set out in the judgment of the learned Chief Justice. In view of my finding on the first issue, it is unnecessary to discuss them in detail. It appears that the Committee’s attitude is heavily influenced by paragraph 5 of Chapter 16 of the report of the D.I.R.T. Committee. That reads as follows:-

One of these recommendations is contained at paragraph 9.6:-

As can be seen from the materials supplied, the sub-Committee went considerably further in restricting cross-examination.

It must be firmly understood that, when a body decides to deal with matters as serious as those in question here, it cannot (apart from anything else) deny to persons whose reputations and livelihoods are thus brought into issue the full power to cross examine fully, as a matter of right, and without unreasonable hindrances. This, of course, is not to deny to any tribunal the right to control prolixity or incompetence if that is manifested. There was no question of anything of this sort in this case.

There can be no doubt that the proposed restrictions on cross-examination notified to the Garda applicants were very far reaching. Cross-examination, together with submissions, was scheduled for one half of one day, at the end of the evidence. The Committee submitted that this was not writ in stone and might have been changed and that we should presume it would have been changed if justice had so required. That would be more convincing as a submission if it had been said to the applicants when they first took exception to the restrictions.

A person cannot be put on risk of a grave finding of fact against him without a full opportunity of defending himself or herself, including by cross-examination.

I wish to add that none of the findings in favour of the applicants depend in any essential way on the fact that they are members of An Garda Síochána. I believe that the same rights and immunities are available to any citizen whether he or she is a guard, a civil or public servant, or entirely outside the official sector.

In common with several of my colleagues, I consider that the first Declaration answered by the Divisional Court is too wide in its terms. I would prefer to grant relief, for the reasons given above, limited to the specific circumstances of the present case.

I would therefore grant a Declaration that the conducting by the joint Oireachtas sub-Committee of an inquiry into the fatal shooting at Abbeylara on the 20th day of April, 2000 capable of leading to adverse findings of fact and conclusions (including a finding of unlawful killing) as to the personal culpability of an individual not a member of the Oireachtas so as to impugn his or her good name is ultra vires in that the holding of such an inquiry is not within the inherent powers of the Houses of the Oireachtas.

To the consequence of the foregoing, I would grant an Order of Certiorari quashing the letters of direction to the respective applicants requiring them to attend before the Abbeylara sub-Committee to give evidence and to produce documents in their possession.

In light of the above reliefs I do not believe it necessary to make any further Order on the applicants proceedings, or any Order in relation to the Notice to Vary.

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 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:-

I will now expand on each of these four reasons.

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.

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:

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.

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:

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:

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

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.

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:-

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.

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 -

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.

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] IR 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 IR 542 and Haughey v. Moriarty [1999] 3 IR 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 argument based on In re Haughey was addressed by the Divisional Court at p. 91 of its judgment as follows:

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.

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:

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:-

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:

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:-

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:-

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:-

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.

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.

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:

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 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.

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

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:-

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?

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:

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.

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.

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.

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 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.

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.

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.

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

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.