High Court of Ireland Decisions

Lawlor v. Flood [1999] IEHC 10 (2nd July, 1999)

BETWEEN

JUDGMENT OF Kearns J delivered on the 2nd day of July 1999

1. The matters to be determined in this judicial review arise from the making of three Orders by the Respondent on the 26th day of April 1999 as Sole Member of the Tribunal of Inquiry into certain Planning Matters and Payments. The Tribunal was appointed pursuant to an Instrument of the Minister for the Environment and Local Government dated 4th November 1997, as amended by further Instrument dated 15th July 1998. These Instruments followed the resolution inDail Eireann on the 7th day of October 1997 to establish a Tribunal under the Tribunals of Enquiry (Evidence) Act, 1921 and the Tribunals of Enquiry (Evidence) (Amendment) Act, 1979, to enquire urgently into and report to the Clerk of the Dáil and make such findings and recommendations as it might see fit in relation to certain definite matters of urgent public importance.

2. The Tribunals interest in Mr Lawlor arises under Section A subsection 5 of the Terms of Reference of the Tribunal which provides:-

"In the event of the Tribunal in the course of its inquiries is made aware of any Acts associated with the planning process committed on or after the 20th of June 1985 which may in its opinion amount to corruption, or which involve attempts to influence by threats or deception or inducement or otherwise to compromise the disinterested performance of public duties, it shall report on such acts and should in particular make recommendations as to the effectiveness and improvement of existing legislation governing corruption in the light of its enquiries."

BACKGROUND

3. The Applicant is a member of Dáil Eireann, having commenced his present tenure as a T.D. subsequent to the General Election of June 1997. Prior thereto he was first elected to Dáil Eireann in June 1977 and was re-elected in 1982, 1987 and in all successive General Elections thereafter. He was elected as a County Councillor to Dublin County Council in June 1979 and was re-elected to the Council in 1985. He is a member of the Dáil Ethics Committee.

4. On the 6th of October 1998 the Solicitor to the Tribunal wrote to the Applicant in the following terms:-

"The Sole Member has read a report in the Sunday Business Post of 4th October 1998, in which, inter alia, you are quoted as saying:-

'I got about two or three contributions or subscriptions from Tom Gilmartin when there was a series of elections in the first half of the 1980's....I did up a report for them and went to England at my own expense. We were talking about the possibility of me taking space in the development for a bowling leisure idea. I advised them but there was no formal consultancy arrangement. There was no requirement on me to register my interest'

The report under the heading "Lawlor 'Fees' now donations" (with a sub-heading "Fianna Fail T.D. re-classifies[sterling]3,500 a month payments not listed on register of interests") goes on to allege that you claimed "that a series of payments (you) received from builder Tom Gilmartin in the 1980's were political donations and that (you) had mistakenly described the same monies as "consultancy fees" to the Sunday Business Post "last week" and that you believe 'the arrangements lasted for up to four months".

In order to assist him in the preliminary confidential enquiries which he was carrying out in private the Sole Member of the Tribunal asks you to furnish the following information in relation to each and every such payment:

1(a) the date of each payment;

(b) by whom the payment was made;

(c) to whom the payment was made;

(d) whether the payment was paid by cheque, cash, bankers Order or otherwise;

(e) if made by cheque or bankers Order the name of the account on which the cheque was drawn;

(f) the names of the signatory to the cheque/order;

(g) the name of the payee on the cheque/order;.

(h) when, where and by whom each such cheque/order was negotiated;

(i) the name of the Bank and branch together with the number of the account and the name of the account holder into which each such cheque or payment was lodged.

2(a) Please furnish a copy of the report with which you 'did up" for them.

(b) For whom did you make up such report and

(c) When and to whom did you hand over the Report.

3(1) On what date did you go to England, for what purpose and who did you meet there? Where did the meeting take place?

(2) Were you invited to go to England and by whom were you invited?

4(1) To whom were you talking about the possibility of you taking space in the development for a bowling leisure idea;

5(1) Please furnish a copy of the demographic and economic data which it is stated you prepared for Arlington Securities PLC. When was this report furnished to Arlington and to whom was it delivered?

6(1) Please furnish the names and addresses of the property owners whom you approached "along the Quays when the site was being assembled".

7(1) Please furnish the name and addresses of the registered office of all companies in which you had or have a legal, equitable or beneficial interest and whether a shareholder, director, officer, beneficiary or otherwise.

8(1) Please state what precise interest you had/have in each such company;

The Sole Member has asked me to request you to furnish you replies in writing not later than 3 p.m. on Friday next the 9th of October.

I enclose a copy of the Tribunal's Amended Terms of Reference."

5. By letter of reply dated 9th October 1998 the Applicant through his Solicitors replied to the Tribunal's letter and the relevant passage is as follows:-

"Whilst the contents of your correspondence under reply are noted, and in particular your reference to the Sole Member having "... read a report in the Sunday Business Post of 4th October 1998 ..." it is further noted that there is no reference in your correspondence to '.......any acts associated with the planning process.....'. Accordingly in the light of the Amended Terms of Reference of the Tribunal of Inquiry into Certain Planning Matters and Payments and in particular paragraph No. 5 thereof we would be most obliged if you would might specify, by return, the basis upon which the matters raised in your correspondence to our client are made."

6. These two letters convey at the very outset a foretaste of the impasse which later developed between the Applicant and the Tribunal. The Tribunal on the one hand wanted more information and documentation. The Applicant for his part wanted to know and continued to press for the detail of allegations concerning him, the sources of any allegations made and an indication as to how the lines of inquiry being pursued came within the remit of the Tribunal (although this last objection had ceased by the time of this Judicial Review).

7. On the 13th of October 1998 the Tribunal wrote to say it was investigating certain matters associated with the planning process relating to the proposed development by Arlington Securities plc at Bachelors Walk and the proposed shopping centre and ancillary development atQuarryvale. The letter continued:-

"It was in this context and having regard, inter alia, to the statements attributed to your clients in the media concerning payments from Mr Thomas Gilmartin and/or Arlington Securities plc that the Tribunal requested the information referred to in my letter to your client on the 6th instant. The Sole Member of the Tribunal considers that it is necessary, for the purposes of his functions, that he obtains this information."

8. By letter dated 15th October 1998 the Applicant's Solicitors sought full particulars of the matters to which the Tribunal had referred in correspondence.

9. By letter dated 16th October 1998, the tribunal replied:-

"In the course of its preliminary confidential investigations in private the Tribunal has been made aware of the alleged payment by Thomas Gilmartin, on behalf of Arlington Securities plc, to your client of substantial sums of money. At the time of these alleged payments Arlington Securities plc and Mr Thomas Gilmartin were involved in site assembly with a view to obtaining planning permission for proposed developments at Bachelors Walk, Dublin and Quarryvale respectively. The Tribunal has been made aware of these allegations by a number of sources, the identity of which it is not prepared to disclose at this time.

In the articles referred to in previous correspondence your client has reported as having admitted that he received a number of payments in the sum of [sterling]3,500 from Mr Gilmartin. It was initially reported that your client stated that these payments had been made by way of consultancy fees but a subsequent report stated that your clients said that they were political donations.

As I have already indicated to you the Tribunal is investigating certain matters concerning the Arlington Securities plc development at Bachelors Walk and Mr Thomas Gilmartin's proposed development at Quarryvale. The matters under investigation relate, inter alia, to the zoning and planning aspects of these proposed developments."

10. Newspaper articles touching on these matters were enclosed with ensuing correspondence from the Tribunal, prompting a further letter from the Applicant on the 23rd of October 1998, complaining that the Tribunal had still failed to identify the precise allegations or the sources thereof, nor had the Tribunal furnished full particulars in relation thereto.

11. On the 30th of October 1998, the Tribunal wrote a letter which included the following:-

"I have already stated that this correspondence is serving no useful purpose. The Tribunal is not going to be subject to intensive and irrelevant interrogation in response to a simple request for information."

12. The second page of the letter continued as follows:-

"I have been directed by the Sole Member to give you notice that he intends to consider making Orders directing your client to:

(a) attend at the offices of the Tribunal to answer questions put to him by Counsel to the Tribunal concerning the payments of [sterling]3,500 to your client.

(b) Make discovery on oath of:

(1) All documents relating to any accounts held by or on behalf of your client whether in his own name or otherwise, in any bank, building society or other financial institution, either within or outside the State since 20th June 1985, including (but not confined to) statements of account, correspondence, cheque counterfoils, paid and returned cheques, deposit receipts, withdrawal receipts and deposit books and records.

(2) All documents and records relating to the payment to your client of any monies by Arlington Securities plc and/or Mr Thomas Gilmartin or by anybody on their behalf.

(3) All documents and records relating to the negotiation of any cheques given to your client by or on behalf of the said Arlington Securities plc and/or Mr Thomas Gilmartin.

(4) All documents and records relating to the provision of any services by a client to the said Arlington Securities plc and/or Mr ThomasGilmartin including (but not confined to) contracts, correspondence, memoranda, reports, advices, minutes of meetings or instructions.

(c) Furnish to the Tribunal an Affidavit stating the name(s) of any company(s) of which your client is or has been since 20th June, 1985 a shareholder or director or in which he had a beneficial interest and giving details of any such shareholding or directorship.

The Sole Member will consider making these Orders on Thursday 5th November, 1998. If you wish to make any representations to the Tribunal concerning these matters please do so in writing on or before Wednesday, 4th November, 1998. Alternatively, if you wish to beheard by the Tribunal in relation to the said matters please let me know by return with a view to arranging a date and time for the hearing of your submissions."

13. There then followed a private hearing before the Sole Member on the 24th November 1998 at which Counsel for the Respondent outlined the background to the Arlington Payments and pointed out that the Tribunal was not prepared to disclose sources at that stage. Counsel for the Applicants sought confirmation that no other allegation would be investigated by the Tribunal but any such assurance was specifically declined by the Respondent.

14. Many of the submissions, made on behalf of the Applicant, are detailed at a later part of the judgment, but it was submitted from this early stage that the Tribunal had no jurisdiction to direct the Applicant to attend for questioning by Counsel and that further none of the proposed Orders could or should be made unless or until full detailed allegations were supplied to the Applicant. Concerns were also expressed about leaks of information to the Press, although it was stressed that the Applicant was not asserting that these leaks came from the Tribunal. It was also submitted that the discovery sought was excessive in scope and generality.

15. In essence, and without going further into a transcript of 53 pages, it was contended that without a full statement of the reasons for the making of the proposed Orders which must include the totality of the allegations made against the Applicant, it was impossible for the Applicant to advance reasons as to the propriety of the proposed Orders or their scope.

16. Before passing from this hearing, it is perhaps pertinent to note that the Arlington Securities allegations were widened on the occasion of this hearing to include a suggestion that the Applicant went to London and attended at a meeting of Arlington Securities plc both unannounced and uninvited and that the Applicant claimed to represent the Irish Government and sought a substantial share in the proposed development.

17. Counsel for the Respondent pointed out that the Order under Section 4 directing Mr Lawlor to attend to answer questions was only being made in the light of unsuccessful attempts by the Tribunal to elicit information voluntarily from Mr Lawlor.

18. Having received all submissions, the Sole Member gave an indication that he would consider sending a letter to the Applicant dealing with the terms of the allegations. In response, Counsel for the Applicant indicated that if such a letter was received the Tribunal would have a reply within 24 hours.

19. On 27th November, 1998, the Tribunal wrote a letter to the Applicant which confirmed the new details advised at the meeting of the 24th November and which contained the following passage:-

"The Sole Member believes that you have more than enough information in the above description to enable you assess and make representations in relation to the proposed orders. Under no circumstances will the evidential base of the allegations be disclosed to you at this stage. That would only arise if the matter were to go to a public hearing. The Sole Member regrets that it is necessary to consider making orders but, as you are aware, a lengthy exchange of correspondence with you failed to elicit any information or reply to the Tribunal's questions from your client, despite his professed wish to co-operate with the Tribunal".

20. The full text of this letter is in the Sole Member's Reasoning at p.8. (Appendix 1).

21. On the 3rd of December 1998, the Applicant wrote a letter to the Tribunal which included the following:-

"Without prejudice to these matters, which are in the forefront of our client's concerns, his attitude remains a constructive one. He is, accordingly, prepared to give his version of the Arlington matter, in so far as it has been outlined to him by the Tribunal on the following basis:

1. That it is expressly knowledged that the version of events to be given by Mr Lawlor, and the documents to be supplied by him, are being given and supplied in the absence of full disclosure of the allegations made against him and may not be, therefore, represent his full complete and accurate case in these matters.

2. That material supplied by Mr Lawlor will be entirely confidential to the Tribunal and it's officers and that no copy of it, or summary of it, in whole or in part will be given to any other party or their advisers in any circumstances, without our client first being informed of the intention to make this disclosure and it's extent, and given an opportunity to object to such disclosure.

3. That it is agreed between the writer and the Solicitor for the Tribunal that the written version of events and supporting documentation being supplied by Mr Lawlor is a "statement'"within the meaning of Section 5 of the Tribunals of Enquiry (Evidence) (Amendment) Act, 1979".

22. In December 1998 the Applicant again wrote to the tribunal expressing concern about media articles including articles which suggested that three former Arlington executives had given the Flood Tribunal affidavits which dealt at length with their proposed development plans at Bachelors Walk and requesting copies of the said affidavits.

23. On the 18th February, 1999 the Tribunal responded to the Applicant's letter of the 3rd December, 1998 confirming its understanding that in the event that the Tribunal were to notify the Applicant of further matters alleged against him , it was accepted that the Applicant would furnish a supplemental statement in respect of such matters. An assurance of confidentiality was given and a confirmation that the written version of events to be supplied by the Applicant would constitute a"statement" within the meaning of Section 5 of he 1979 Act. Other undertakings were given with regard to notice of public hearings, but the Tribunal expressly declined to give undertakings in relation to possible future proceedings in the Courts.

24. The Sole Member invited any further oral submissions or written submissions which the Applicant might wish to make. On the 12th March, 1999 the Applicant through his Solicitor furnished a statement in relation to the Arlington Securities matter in which he claimed that he had behaved with complete propriety in his dealings with that company.

25. On the 30th March, 1999 the Solicitor to the Tribunal wrote again to the Applicant a letter which included the following:-

"In the course of its inquiries, the Tribunal has received information which suggest that your client and Mr George Redmond, former Assistant City and County Manager, were each paid a substantial sum of money by (name deleted by Kearns J.) in connection with the procurement of planning permission for an entrance from his filling station premises at Palmerstown onto the near Palmerstown by-pass in 1988.

The Tribunal has also received information that your client and Mr Redmond each received a further substantial sum of money from Brady Motors Limited in connection with the procurement of planning permission from Mr Brady's garage premises at Castleknock, County Dublin, under the new motorway at the Navan Road.

The Tribunal has further received information that during the years 1987 to 1990 your client regularly attended meetings with Mr Jim Kennedy, an auctioneer, property developer and amusement arcade proprietor and Mr George Redmond at the amusement arcade premises of Mr Kennedy in Westmoreland Street, Dublin.

The Sole Member of the Tribunal has decided to consider the orders notified in the letter of the 30th October 1998 in relation to the investigation of the above mentioned matters as well as the Arlington/Gilmartin matters.

As you are aware, the Tribunal has already heard oral submissions by Counsel in connection with the said proposed orders. If you would like to make any further submissions to the Tribunal in the light of the above, please let me have your submissions in writing not later than Wednesday 14th April 1999."

26. Following receipt of this letter, the Applicant sought an opportunity make further oral submissions, but by letter dated 14th April 1999 the Sole Member indicated that it was not necessary to do so. He did, however, extend the time for receipt of written submissions until the 20th April 1999.

27. On the 21st April 1999 the Applicant's Solicitor wrote a letter setting out their submissions as follows:-

"(a) That there is no need whatsoever to make Orders in respect of the Arlington Securities plc matters . Our client has provided the Tribunal with information and offered expressly to ascertain if the cheques or other evidential material which the Tribunal holds are in any way related to our client, once given details of them. That offer remains open and it is submitted that it is entirely previous and oppressive of your client to contemplate the making of the widespread Orders indicated by a letter of the 30th October, 1998.

(b) The sensitivities to which we have already extensively referred in our previous correspondence in relation to leaking, are now exacerbated by the pendency of elections.

(c) Our client has instructed us that three new matters are entirely groundless. Our client has further instructed us to state emphatically:-

(i) (Name deleted by direction of Kearns J.) Did not pay any monies whatever, in any form, to our client in connection with the procurement of planning permission for an entrance from his filling station premises as apparently alleged.

(ii) Neither Brady Motors Limited nor any person on it's behalf, make payments of money or monies worth in any form to our client in connection with the procurement of planning permission as alleged or at all.

(iii) Our client did not, during the years 1987 to 1990 or at all ever meet with Mr George Redmond and Mr Jim Kennedy at the premises referred to. Our client has already made this perfectly clear by Public Statement.

(iv) Moreover, we are further instructed that these allegations are intrinsically utterly unreliable and threadbare. Our client understands that the second of them has been fully investigated by the Gardai years ago and as our client I am sure are aware, it was found to be false.

(v) Furthermore our client has also instructed us that (name deleted by direction of Kearns J.), to the best of our client's knowledge, is unfortunately a person who by reason of a number of different types of illness or affliction is an entirely unreliable witness.

(d) Orders of the nature of those which you propose are extremely radical in nature and trench upon our client's Constitutional Rights in a number of ways. It is submitted that they go much further than an ordinary Order for Discovery.

(e) In our respectful submission it is not sufficient merely to state that information to a particular effect has become available to the Tribunal as a basis for the making of such Orders. Our client requires to challenge the credibility of these allegations (if indeed they are being seriously made by any identifiable person). Notwithstanding the fact that our client has not been given any particulars of them whatsoever, being enclosed herewith our client's comments on each of these matters from which you can see that not only are the allegations denied but their intrinsic incredibility is being indicated.

(f) We therefore submit that no such Orders as envisaged should be made. We repeat our client's willingness to co-operate in the investigation of specific matters as and when indicated to him. It is further respectfully submitted that it is entirely inappropriate to contemplate the making of general Orders with the breaches of privacy and confidentiality and the risk of leakage which these represent to our client.

If, contrary to our Submissions, the Tribunal sees fit to make Orders of this sort we would ask you to indicate this fact to our client before taking any step on foot of such Orders as it is his intention to challenge their making in the appropriate forum.

It is particularly regretted by our client that the Tribunal has not seen fit to accord him the right to the making of oral submissions, especially in the context of new allegations which had previously not been notified to him".

28. With that letter was enclosed the Applicant's own letter to his Solicitor which contained the Applicant's response to the three additional new matters which had been raised by the Tribunal.

29. Thereafter on the 26th April, 1999, the Tribunal's Solicitor wrote confirming receipt of the written submissions and enclosures. The letter continued:-

"The Sole Member has decided that it is necessary for the purposes of his functions to make Orders concerning your client.

I enclose herewith a copy of the written decision of the Sole Member of the Tribunal on the matter. I also enclose by way of service copies of the three orders that he has decided to make.

I note what you say concerning the pendency of elections. I would, however, draw to your attention the fact that the difficulties which the Tribunal has had in the past with the unauthorised disclosure of confidential information only arose after the Sole Member had decided that the matters in question were to be put into evidence at a public sitting and after statements of evidence had been circulated to interested parties for that purpose. I am in a position to inform you that in the event that the Sole Member decides that any evidence concerning your client should be called at a public sitting of the Tribunal, the statements of evidence would not, in any event, be circulated prior to the June elections.

I note your statement concerning your clients willingness to co-operate with the Tribunal in its investigations. The Tribunal earnestly hopes that. in the spirit of co-operation, your client will comply with the Tribunal's orders in full and in time. This would greatly expedite the work of the Tribunal."

30. On the 20th day of May 1999, Kelly J. gave leave to the Applicant for leave to apply by way of an application for judicial review to quash the three Orders of the Sole Member which are fully set out in the text of the judgment which shortly follows. He further gave leave to the Applicant to argue that he was entitled to be furnished by the Respondent with the text of allegations made against him or statements adverse to him in sufficient detail to permit him to address such allegations or statements to the extent necessary and in particular to make detailed submissions in respect of any Order contemplated by the Respondent.

31. The principal grounds upon which leave to bring judicial review was granted were that the three Orders were made without or in excess of jurisdiction.

32. Two other grounds were identified, firstly, that the said Orders were made other than in due course of law and without regard to the natural and constitutional rights of the Applicant in that they were made without furnishing to the Applicant any or any reasonable details of the factual basis said to require them to be made so that the Applicant could address such matters as the necessity for the making of the said Orders or any of them and as to their scope.

33. Secondly, the Respondent, if he had jurisdiction to make the first Order (attendance for questioning), had no jurisdiction to require that the Applicant answer questions or provide information other than to and in the presence of the learned Respondent as Sole Member of a Tribunal of Inquiry.

34. I now propose to deal with each of the Orders made by the Sole Member in the order appearing in the last page of the Sole Member's reasoning which accompanied the making of the three Orders on the 26th day of April 1999.

THE FIRST ORDER On the 26th day of April 1999, the Sole Member made the following Order:-

"IT IS ORDERED pursuant to Section 4 of the Tribunals of Inquiry (Evidence) Act, 1979 that Liam Lawlor T.D. of "Somerton", Lucan, County Dublin do attend at the offices of the Tribunal to answer questions put to him by Counsel to the Tribunal relating to matters being inquired into by the Tribunal, at a date and time to be agreed with a Tribunal Solicitor or, in default of such agreement, at a date and time to be fixed by me".

35. At the outset of the hearing before this Court, Counsel for the Tribunal confirmed that it was not intended at any such session of questioning that the Applicant would be required to answer questions under Oath. It was also conceded that the making of an Order in thesespecific terms was not supported by judicial precedent in this country or in any other common law jurisdiction. It was also accepted that the High Court could not, in the absence of statute, exercise such a power.

36. The issues before this Court are to determine whether or not the Sole Member has jurisdiction to make such an Order at all in the first instance in such circumstances or, by way of ancillary consideration, whether he has any jurisdiction to make the Order in the form which he did, namely, requiring a citizen to appear before a barrister for a process of compulsory questioning. If these questions are answered in the negative, it would not be necessary to proceed further to consider the question of whether, if made within jurisdiction, such Orders could nonetheless be impugned for want of fair procedures.

37. The raison d'etre for such an Order is, from the Tribunal's perspective, that of necessity. It needs certain information from the Applicant, but he cannot or will not supply it voluntarily. Counsel for the Tribunal envisages a form of interview at which a stenographer would attend and at which the Applicant would be entitled to have present his legal advisers. The record of the questions and answers would then be made available to the Sole Member who, following consideration of this material and other material available to him, would then decide whether or not to proceed beyond this preliminary stage to a full hearing in respect of any allegations or lines of inquiry being pursued. It is submitted there may in fact be an advantage to a person such as the Applicant in that baseless allegations could conveniently be disposed of at this preliminary stage if satisfactory answers to certain questions were forthcoming.

38. The Applicant, for his part, regards such a procedure with the gravest of apprehension. His right to silence would be compromised. There is neither a framework of rules nor any statutory safeguards for the conduct of any such questioning. Counsel for the Tribunal will act simultaneously as interrogator and presiding officer. No code of conduct exists for Counsel in such circumstances, nor is it clear precisely what status Counsel would enjoy.

39. As the Sole Member's power under the Acts is confined to the examination of witnesses, in effect such an Order, if valid, would confer greater powers on the questioner than the Sole Member has himself.

40. During the eight day hearing, numerous other concerns were expressed, including the apprehension that the privilege guaranteed under Section 5 of the 1979 Act in respect of statements made "before a Tribunal" would not exist. Other concerns revolved around the manner of the questioning, the format and content of the questioning and difficulties concerning the resolution of disputes arising at any such session of questioning.

41. In the reasoning of the Sole Member which accompanied the Ruling, the Sole Member invoked Section 1(1) of the Tribunals of Inquiry (Evidence) Act, 1921, Order 39, Rule 4 of the Rules of the Superior Courts and Section 4 of the Tribunals of Inquiry (Evidence) Act, 1979 as providing authority for the proposed examination of the Applicant.

42. At page 14 of the reasoning, the Sole Member stated as follows:-

"It appears to me, having regard to this provision (i.e. Order 39, Rule 4) that the Tribunal has power to direct Mr. Lawlor to make an Order for the examination of Mr. Lawlor (sic) on Oath by Counsel to the Tribunal insofar as I have decided that he is to be a witness before the Tribunal".

43. In the grounds of opposition to the Judicial Review, it was contended that the making of the Order was intra vires the provisions of Section 1(1) of the 1921 Act as amended and/or intra vires the provisions of Order 39 Rule 4 of the Rules of the Superior Courts.

44. However, when the hearing before this Court commenced, Counsel for the Tribunal indicated that the Order was in fact made and reliance was being placed solely on the jurisdiction conferred by Section 4 of the Tribunals of Inquiry (Evidence) Act, 1979, which provides as follows:-

"A Tribunal may make such Orders as it considers necessary for the purposes of its functions, and it shall have, in relation to their making, all such powers, rights and privileges as are vested in the High Court or a judge of that Court in respect of the making of Orders".

45. The reasoning of the Sole Member continues as follows at pp. 14-16:-

"This section was considered by the High Court in the case of Damien Kiberd and Another v. The Honourable Mr. Justice Liam Hamilton (Chairman and Sole Member of the Tribunal of Inquiry into the Beef Processing Industry) [1992] 2 I.R. 257. In that case the respondent made an Order under Section 4 of the Tribunals of Inquiry (Evidence) Act, 1921 directing the plaintiffs, two journalists who had obtained and published confidential Tribunal information, to attend before the Tribunal on a specified date and produce thereat the material upon which the articles were based and answer questions as to the source of the material.

The applicants obtained leave to apply for Judicial Review to have this Order quashed. They argued that the section should not be given a broad construction; that what was involved was a compulsory power being used against the citizen and that the Court should adopt a narrow and restrictive view of the scope of the section.

Rejecting this argument, Blayney J. stated:-

'I do not think that there is any real doubt as to how the section should be construed. Its terms are very clear: 'a Tribunal may make such Orders as it considers necessary for the purposes of its functions'."

He went on to hold that the section empowered the respondent to make the Order in dispute. Furthermore, he held that the rationale of the decision in The State (Lynch) v. Cooney [1982] I.R. 337 applied to an opinion under Section 4, namely, that the opinion must be one which is bona fide held, factually sustainable and not unreasonable.

I am satisfied that I do have power under Section 4 of the Tribunals of Inquriy (Evidence) Act, 1979 to direct a person to attend for interview by Counsel to the Tribunal in appropriate circumstances and subject to the legal principles to which I have referred. In this context I think that it is important to draw attention to the distinction between requiring a person under compulsion to attend for interview and requiring them to answer particular questions. It is, of course, possible that a person who has been ordered to attend for interview may legitimately refuse to answer a particular question or questions which may be put to him, for example, on the basis of legal professional privilege. The obligation on a person to comply with an Order to attend for interview is, of course, subject to any lawful entitlement that person may have not to answer particular questions.

I am engaged in the investigation of a number of matters which involve Mr. Lawlor. I am of the opinion that it is necessary for the purpose of these investigations to require Mr. Lawlor, by the making of an Order under Section 4, to attend for interview. In forming this opinion, I have had regard to:-

(a) The terms of reference of the Tribunal.

(b) The information which the Tribunal has received from third parties, the substance of which has been disclosed to Mr. Lawlor.

(c) The correspondence exchanged between the Tribunal and Mr. Lawlor's legal advisers.

(d) The submissions made on behalf of Mr. Lawlor including the further submissions contained in the letter from his solicitor dated the 21st April 1999.

(e) The failure of Mr. Lawlor to voluntarily provide the Tribunal with the information sought in the Tribunal's letter of the 6th of October 1998.

(f) The failure of Mr. Lawlor to voluntarily attend for interview.

(g) The limited information which Mr. Lawlor has provided to the Tribunal.

(h) The public interest in the Tribunal discharging its mandate by fully and effectively inquiring into matters within its terms of reference.

Accordingly, I have decided to make an Order in the terms of paragraph (a) of the letter of the 30th of October 1999. The Order will recite that Mr. Lawlor should attend at the offices of the Tribunal at a date and time to be agreed with the Tribunal Solicitor. If no such agreement can be reached I will fix a date and time".

46. It will be seen from the foregoing that the essential bedrock of the Tribunal case for the making of such an Order is the interpretation given to Section 4 by Mr. Justice Blayney in the Kiberd case.

STATUTORY CONSTRUCTION

47. Before considering Kiberd and other judicial commentary on Section 4, it is perhaps appropriate to return to the wording of the section to see if its meaning is plain and unambiguous and, if ambiguous, to identify the nature of that ambiguity and to analyse how it can be resolved.

48. The general principles which should inform the Court's approach are set out in

East Donegal Co-operative Livestock Mart Limited and Others v. Attorney General [1970] IR 317 and Howard v. Commissioners of Public Works [1993] ILRM 665.

49. As Walsh J. stated at page 341 in East Donegal Co-operative v. Attorney General:-

"The words of the Act, and in particular the general words, cannot be read in isolation and their content is to be derived from their context. Therefore, words or phrases which at first sight might appear to be wide and general may be cut down in their construction when examined against the objects of the Act which are to be derived from a study of the Act as a whole including the long title. Until each part of the Act is examined in relation to the whole, it would not be possible to say that any particular part of the Act was either clear or unambiguous".

In Howard at p. 690, Blayney J. adopted the following passage from Craies on Statute Law (7th Edition 1971) at p. 65:-

"The cardinal rule for the construction of Acts of Parliament is that they should be construed according to the intention expressed in the Acts themselves. If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordinary and natural sense. The words themselves alone do in such a case best declare the intention of the law giver. 'The Tribunal that has to construe an Act of a legislature, or indeed any other document, has to determine the intention as expressed by the words used. And in order to understand these words it is natural to enquire what is the subject matter with respect to which they are used and the object in view'."

50. At p. 693, Blayney J. stated:-

"It was also submitted that it would be an absurd situation if the Commissioners had to comply with Section 84 and also obtain planning permission, but where, as here, the provisions of the sections are quite clear (my emphasis) the Court is obliged to give effect to them even if the effect of doing so may not appear to be entirely reasonable.

Where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the legislature, it must be enforced however harsh or absurd or contrary to common sense the result may be. The interpretation of a statute is not to be collected from any notions which may be entertained by the Court as to what is just and expedient: words are not to be construed, contrary to theirmeaning, as embracing or excluding cases merely because no good reason appears why they should not be embraced or excluded. The duty of the Court is to expound the law as it stands, and to 'leave the remedy (if one be resolved upon) to others'. Maxwell on the Interpretation of Statutes at p. 29."

51. Bearing in mind these principles, one can commence by posing the question: is the section clear in its meaning when read as a whole, or is there an ambiguity in the section which permits more than one meaning to be given to it?

52. It is submitted on behalf of the Tribunal that Section 4 does two things. The first part of the section authorises the Tribunal to make whatever Orders it considers necessary for the purpose of its functions. There are then disjunctive words which have the effect of meaning that the"powers, rights and privileges" referred to later in the section are to be construed as relating only in the narrowest possible way to such powers, rights and privileges as are vested in the High Court "in respect of the making of Orders" . In other words, any power conferred by the second part of the section does not relate to the scope or effect of any Order to be made by a Tribunal, but relates merely to the mechanics and incidental features of the execution of an Order.

53. The Applicant contends, however, that the words could not be clearer and simply mean that in making Orders the Tribunal shall have all the powers of the High Court but no more. He relies not merely on the grammatical and common sense interpretation of the language of the section but also on canons of statutory construction, the antecedent statutory history and also the parliamentary history of the enactment of the particular provision.

54. As pointed out in Bennion (Statutory Interpretation) (3rd Edition) p. 14:-

"The interpreter's duty is to arrive at the legal meaning of the enactment which is not necessarily the same as its grammatical meaning".

55. While this is obviously true, I think it important to dispel at the outset some confusion which in my view has arisen from the way in which this whole issue has been argued by Counsel on behalf of the Respondent. Counsel has argued that the word "their" or the words "in relation to their making" as they appear in the section are words having disjunctive effect. In the Oxford Dictionary of English Grammar (1994 ed) at p 120 the word "disjunctive" is defined as follows:-

"(n & adj.) (Designating) a word, especially the conjunction or, that expresses alternatives.

The terms 'disjunctive' and 'disjunction' are taken from logic. Further distinctions can be made. In exclusive disjunction the choice is 'one or the other but not both, e.g.

(either) the train is late, or its being cancelled)."

A "disjunction" in turn is defined as:-

"choice between two possibilities, or an instance of this".

56. The Collins English Dictionary (1986) ed. defines "disjunctive" as:-

"denoting a word, esp. a conjunction, that serves to express opposition or contrast".

57. Disjunctive words are "but" and "or" and these are the words which create disjunction. The word "and" creates conjunction.

58. I cannot see that any of the words relied upon by Mr Hanratty create disjunctive effect in any grammatical sense of that word. The second part of the section is merely explanatory of the first part.

59. The true question must be: is there any ambiguity in the section when read as a whole?

60. Reading the section from end to end, it does seem to me that an ambiguity could perhaps be said to arise from the words "in respect of the making of Orders" at the end of the section. The ambiguity is this: do these words relate to the scope and effect of the Orders or do they refer to the incidental features attending the making or execution of an Order? It is appropriate to consider briefly the extent to which canons of construction may resolve any difficulty which could arise. When, asBennion suggests, one approaches the problem by contrasting the opposing constructions, a difficulty at once arises in trying to ascertain what meaning the latter part of Section 4 has based on the construction and approach argued for by Counsel on behalf of the Tribunal.

61. The argument was advanced that, in effect, the second part of Section 4 is substantially confined to rights and privileges attendant upon the making of Orders.

62. The problem then arises as to the meaning of the word "powers" on such a construction. The only Court power in respect of the making of one of its Orders is either (a) to make or (b) to enforce its own Order.

63. On this basis it is argued that the word "powers" effectively has no meaning, or is confined to such mechanical aspects of the making of Orders as amending Orders, making conditional Orders, dating and perfecting Orders.

64. It is very difficult to adopt a construction which is so tortuous and I find it difficult to accept that such an approach to the construction of the section could possibly be correct.

65. I would also adopt the "common sense" rule of construction in relation to Section 4. This Rule is referred to in the following passage in Bennion (3rd Ed.) at p. 427:-

"It is a rule of law ... that when considering, in relation to the facts of the instant case, which of the opposing constructions of the enactment would give effect to the legislative intention, the Court should presume that the legislature intended common sense to be used in construing the enactment."

66. Any approach to Section 4 which carries with it a construction that the word "powers" in the latter part of the section is meaningless, or in practical effect meaningless, is repugnant to this canon of construction.

Bennion at p. 431 (3rd Ed.) gives an example of how a formal syntactical ambiguity can be resolved by the use of common sense in saying:-

"In 'The Complete Plain Words', a manual written to improve the use of language by Civil Servants, Sir Ernest Gowers cited as an example of formal ambiguity an instruction contained in a childcare handbook: 'If the baby does not thrive on raw milk, boil it'. The way the instruction is worded raises a theoretical doubt which common sense is enough to resolve."

67. It seems to me that the Respondent can go no further than to raise a theoretical doubt which seems to me to be at variance with common sense in the instant case.

68. Mr. Hardiman referred to another canon of construction which points to a similar conclusion.

69. He relies strongly on the maxim "expressio unius exclusio alterius". He argues that in a matter so intimately concerned with rights of citizens as this, the section must be seen as a comprehensive statement of the rights given to the Tribunal and that, in order to confer on a Tribunal powers more extensive than or different to the High Court, the section must clearly sostate. Again, applying the East Donegal principles, and conducting a root and branch examination of the various sections of the Act, it is impossible to find a single section which lends support to the construction argued for by the Respondent. There is no power to delegate vested in the Sole Member. There is no section which permits examination of a person other than as a witness. There is no section which authorises the Sole Member"or any person nominated by him" to discharge any of his statutory functions. There is no penal provision for a refusal to cooperate with any person other than the Sole Member himself. The long title of the Act contains no description of an intention to create extensive new powers for Tribunals.

70. He further argues that insofar as a penal effect arises from the proposed application of Section 4, the principles of strict construction of penal statutes and the principle against doubtful penalisation should be invoked in addition to the usual canons of statutory construction.

71. This arises because it is made quite clear by Section 3 of the 1979 Act that a person who fails, neglects or refuses to comply with the provisions of an Order made by a Tribunal shall be guilty of an offence, and liable, on conviction, to a fine not exceeding[sterling]10,000.00 or imprisonment not exceeding two years or to both such fine and such imprisonment.

72. While Counsel for the Tribunal accepts that failure to comply with an Order so made would leave open the possibility of a prosecution under Section 3 of the 1979 Act or an application to the High Court to set in train the contempt procedures provided for by Section 4 of the 1997 Act, he argues that this is beside the point because the relevant section is Section 4 of the 1979 Act and this is not a penal section, but merely a section which creates powers. He further argues that if Mr.Hardiman's contention is correct it follows that no Order can be made under Section 4 of the 1979 Act because the section does not of itself specify any particular form of Order and disobedience to any Order under Section 4 constitutes an Offence under Section 3.

73. However, Counsel for the Applicant argued, I think correctly, that in this respect Section 4 and Section 3 must be taken together to attain the true position.

74. This topic has been visited recently by O'Higgins J. in Mullins -v- Harnett [1998] 2 ILRM 304 where in discussing the principle of strict construction of penal statutes and the principle against doubtful penalisation he said as follows at p. 310:-

"It appears to me that the latter two canons of construction, which apply to penal statutes, are in addition to, and not in substitution for, other canons of construction. Penal statutes are not only criminal statutes, but any statues that impose a detriment."

75. He continued as follows at p. 311:-

"According to Maxwell (12th Ed.) at pp. 239-240:

'The strict construction of penal statutes seems to manifest itself in four ways .. in the requirement of express language for the creation of an offence; in interpreting strictly words setting out elements of an offence; in requiring the fulfilment to the letter of the statutory conditions precedent to the infliction of punishment; and in insisting on the strict observance of technical provisions concerning criminal procedure and jurisdiction'.

It would appear that the principle applies not only to criminal offences but to any form of detriment. At p. 572 of Bennion the nature of the principle is stated thus:

'Whenever it can be argued that an enactment has a meaning requiring the infliction of a detriment of any kind, the principle against doubtful penalisation comes into play. If the detriment is minor, the principle will carry little weight. If the detriment is severe, the principle will be correspondingly powerful. As Staughton L.J. said in relation to penalisation through retrospection, 'it is a matter of degree - the greater the unfairness, the more it is to expected that Parliament will make it clear if that is intended'. However it operates, the principle requires that that person should not be subjected by law to any sort of detriment unless this is imposed by clear words'."

At p. 311 he again quoted from the 2nd Ed. of Bennion at p. 382 in relation to the principle of strict interpretations of penal statutes:

'The true principle has never been that ' a penal statute must be construed strictly' (though it is often stated in such terms). The correct formulation is that a penal statute must be construed with due regard to the principle against doubtful penalisation, along with all other relevant criteria'.

The following passage occurs at p. 246 of the 12th Ed. of Maxwell concerning this canon of construction:-

'The effect of the rule of strict construction might be summed up by saying that where an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the canons of interpretation fail to solve, the benefit of the doubt should be given to the subject and against the legislature which has failed to explain itself. If there is no ambiguity, and the act or omission in question falls clearly within the mischief of the statute, the construction of a penal statute differs little, if at all, from that of any other'."

76. Accordingly, if an Order is one which under statutory terminology a Tribunal can clearly make and is of a kind envisaged by a particular section, there is no question of applying these two principles of construction so that any contention that every Order would fail is demonstrably false.

77. The Respondent asserts that Sections 10 and 19 of the Companies Act ,1990 show that there is nothing wrong in principle with a statute which obliges persons to attend for interview (by inspectors) and the fact that this is achieved in a different way in Section 4 of the 1979 Act than it is in the Companies Act merely reflects a recognition of the necessity, in the public interest, of giving Tribunals flexible powers to achieve their various purposes. Counsel argues that inspectors so appointed are entitled to require persons to attend before them to answer questions under compulsion. They are not supervised, nor is there a detailed statutory framework or set of procedures laid down for how they should conduct their questioning. Obviously they must apply fair procedures which is an approach which Counsel appointed under such an Order would clearly also follow. In that way, Counsel so appointed and conducting a session of questioning would be subject to precisely the same restraints as an inspector appointed under the 1990 Act. There would be a stenographer in attendance and any person interviewed in this way would be entitled to have a legal adviser present. The Respondent further asserts that any answers given would enjoy privilege because they would come within the protection offered by Section 5 of the 1979 Act.

78. However, it has been pointed out that there are at least four substantial distinctions to be made between the two situations, namely:-

(a) Section 10 powers are expressly conferred by statute;

(b) An inspector is expressly designated by a Court to carry out his functions;

(c) Even if the inspector is a Barrister, he is not acting as Counsel or Advocate in carrying out his functions as inspector;

(d) Failing to comply with an Inspectors requirements is not a constituted criminal offence.

79. From the number of cases cited in relation to the Section 10 of the Companies Act, 1990, and I will be returning to three of them, it is clear that this provision and the powers it confers on inspectors has attracted most careful scrutiny from the Courts, on aspects of constitutionality, fair procedures and self-incrimination. (In Re. National Irish Bank, Shanley J., 13th July 1998; In Re. National Irish Bank, Supreme Court (21 January 1999); In Re. National Irish Bank, Kelly J. 19th March, 1999; Desmond v. Glackin (No. 2) [1993] 3 IR 67). There is now in existence a clear statutory framework sharpened by judicial prouncement on the citizen's rights in this context. The absence of any equivalent statutory clarity in the context of Tribunals undermines the Respondent's contention that there is a true analogy with inspectors operating under the Companies Act 1990.

80. It has been suggested by the Respondent that any analogy between the proposed procedures of the Tribunal and those which arise under the Criminal Justice Act, 1984 is entirely inappropriate. While there are powers to detain and question persons suspected of having committed serious criminal offences under that Act, the context of that entire exercise is comprehensively covered by statute and by Custody RegulationsS.I. 119/1987. A suspect who refuses to answer questions under that Act is guilty of no offence, whereas a person who declines to answer questions put to him by Counsel to the Tribunal faces the prospect of two years imprisonment. I cannot believe that such a situation could ever arise without the clearest statutory mandate in that behalf.

Section 5 of the 1979 Act does confer a privilege by rendering inadmissible as evidence against a person in any criminal proceedings any statement or admission made by such person "before a Tribunal". Would answers given to Counsel on foot of the impugned Order covered by this section?

Section 5 of the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979 provides:-

"A statement or admission made by a person before a Tribunal or when being examined in pursuance of a commission or request issued under subsection (1) of Section 1 of the principal Act shall not be admissible as evidence against that person in any criminal proceedings (other than proceedings in relation to an offence under subsection (2)(c) (inserted by this Act) of that section) and subsection (3) of that section shall be construed and have effect accordingly".

81. The reasoning of the Sole Member at p. 15 recognises that a person who has been ordered to attend for interview may legitimately refuse to answer a particular question on the basis of legal professional privilege.

82. But if, as I believe, answers given to a Barrister (not being the Tribunal) are not privileged under Section 5, then this is a further serious, and perhaps fatal, flaw in the contentions advanced on behalf of the Respondent.

83. Counsel for the Respondent meets this objection by reference to the judgment of Barrington J. in N.I.B. (Supreme Court judgment delivered on the 21st day of January 1999).

84. The entire position of the right to silence in Irish law was considered by Mr. Justice Barrington. In the course of his comprehensive judgment he considered, inter alia, the situation that arose under Section 18 of the Companies Act, 1990.

85. At p. 37 of his judgment he said:-

"The relevant provisions of Section 18 of the Companies Act, 1990 may be abbreviated to read as follows:-

'An answer by a person to a question put to him in exercise of powers conferred by (a) Section 10 ...... may be used in evidence against him ...'

There is no doubt that the quoted provision covers civil cases but it is necessary to address the problem of whether the quoted provision is broad enough to cover the admission of involuntary confessions in criminal cases. One could argue that if it was intended to remove the common law privilege against self-incrimination, the statute should have said so. On the other hand it can be argued that the statute expressly preserves legal professional privilege (see Section 23) but does not mention the common law privilege against self-incrimination. It is therefore possible to argue that had it been intended to preserve the common law privilege against self-incrimination, the statute would have said so.

However this line of reasoning becomes irrelevant once one is satisfied that Article 38 of the Constitution confers on accused persons a right not to have involuntary confessions accepted in evidence at a criminal trial and this right is reinforced by the general provisions of Article 40 s.3 of the Constitution. The Companies Act, 1990 is a post-constitutional statute and must therefore be presumed to be constitutional. This means that in interpreting the Act the constitutional interpretation must be favoured".

86. He continued as follows at p. 39:-

"Accordingly, the better interpretation of Section 18 in the light of the Constitution is that it does not authorise the admission of forced or involuntary confessions against an accused person in a criminal trial, and it can be stated, as a general principle, that a confession, to be admissible at a criminal trial must be voluntary. Whether however a confession is voluntary or not must in every case in which the matter is disputed be a question to be decided, in the first instance, by the trial judge".

87. Counsel for the Respondent relies upon this decision to argue that, given the Applicant's participation in the exercise is entirely involuntary, any answers he may give which may incriminate him will fall to be excluded from any evidence in a criminal trial.

88. It seems to me there is a world of difference between a right guaranteed by statute and the particular decision of an individual judge as to whether or not to rule a particular piece of evidence inadmissible.

89. It is to be noted that in the margin of the text in the 1979 Act, the following words appear: "Non-admissibility in criminal proceedings of evidence given to Tribunals" (my emphasis).

90. This is neither evidence, nor is it given before a Tribunal so that the Applicant is at the loss of and suffers a significant detriment in being deprived of the privilege conferred by Section 5 of the Act.

ANTECEDENT STATUTORY HISTORY

91. The only antecedent statutory history consists of the Tribunals of Inquiry Act, 1921.

92. It seems clear that the words "powers, rights and privileges" which now appear in Section 4 of the 1979 Act were' lifted' from Section 1 of the 1921 Act. There can be no doubt that those words as used in the 1921 Act were enabling words which conferred on Tribunals the three powers or functions referred to in the section, and only those functions. They were the rights to compel the production of documents, the power to examine witnesses and to direct commissions or examine witnesses abroad.

93. Such a limited repertoire of powers forms the backdrop against which the 1979 Act must be considered.

PARLIAMENTARY HISTORY Objection on behalf of the Respondent was initially made to the suggestion that the Court should have regard to the Parliamentary material relating to the enactment of the 1979 Act.

94. For three reasons I felt I should have regard to this material:-

(a) The Court was advised on a number of occasions that the Oireachtas, recognising the limitations of the 1921 Act, intended to confer extensive new powers on Tribunals when introducing the 1979 Act.

(b) Having regard to the direct involvement of the Oireachtas in establishing the terms of reference of a Tribunal, there must be a much stronger case to be made for having regard to such material than in respect of other Statutes.

(c) There is an ambiguity in Section 4 which justifies the Court having regard to such material.

95. If there was the slightest doubt on this score, it seems to me to have been resolved by the decision of the Supreme Court in the People (DPP) v. McDonagh [1996] 2 ILRM 468.

96. In delivering the unanimous judgment of the Court, Costello P. stated as follows at pp. 473 to 474:-

"It has long been established that a Court may, as an aid to the construction of a Statute or one of its provisions, consider its legislative history, a term which includes the legislative antecedents of the provisions under construction as well as pre-Parliamentary material and parliamentary material relating to it. Irish Statutes frequently and for very good reasons adopt with or without amendment theprovisiond of Statutes enacted by the United Kingdom Parliament dealing with the same topic and so the legislative history of Irish Statutes may well include the legislative history of the corresponding enactment of the United Kingdom Parliament. It was urged on the Appellant's behalf that the Court should not consider the legislative history of section 2 of the 1981 Act because the Court can only do so when construing a section which is ambiguous, which this section clearly is not. I cannot agree with this submission; our Courts do not and should not adopt such a rigid exclusionary rule (see for exampleBourke v. Attorney General [1972] IR 36 in which the Supreme Court not only used the European Convention on Extradition to assist in the construction of the Extradition Act, 1965 but also its travaux preparatoires) and it seems to me that the Court should have regard to any aspect of the enactment's legislative history which may be of assistance.

As suggested in the US Supreme Court (United States v. American Trucking Association (1940) 310 US 534 at pp 543-44):

'When aid to construction of the meaning of words, as used in the Statute, is available, there certainly can be no "rule of law" which forbids its use, however clear the words may be on "superficial examination'.

As the legislative history of the section being considered in this case is of considerable assistance, it would be wrong of this Court to ignore it".

97. In introducing the Bill in the Dáil, the then Minister for Justice indicated that the legislation had been brought forward to rectify a defect in Section 1(2) of the 1921 Act. At the Parliamentary Debate in Dáil Eireann on the 6th February, 1979 (311 Dáil Debates, Col. 430) the Minister stated:-

"Doubt has also been expressed in the past as to whether a Tribunal appointed under the 1921 Act had general power to make Orders corresponding to those which the High Court or a judge of that Court could make. The 1921 Act vested in a Tribunal the powers of the High Court but only in relation to the specific matters set out in Section 1(1) (a), (b) and (c), of that Act. Section 4 of the Bill will remove any such doubt and a Tribunal will be able to make such Orders as it considers necessary for the purpose of its functions and will have all the powers, rights and privileges that are vested in the High Court in respect of the making of its Orders."

98. In introducing the legislation in Seanad Eireann, the Minister of State at the Department of Justice stated as follows (91 Seanad Eireann Parliamentary Debates, Col. 46, 14 February, 1979):-

"That brings me to Section 4. Doubt has been expressed in the past as to whether a Tribunal appointed under the 1921 Act had general power to make Orders corresponding to those which the High Court or a Judge of that Court could make. The 1921 Act vested in a Tribunal the powers of the High Court but only in relation to the specific matters set out in Section 1, subsection (1), paragraphs (a), (b) and (c) of that Act. Section 4 of the Bill will remove any such doubt and a Tribunal will be able to make such Orders as it considers necessary for the purpose of its functions and will have all the powers, rights and privileges that are vested in the High Court in respect to the making of its Orders. I should like to emphasise, in this regard, that a Tribunal will only have the powers, rights and privileges of the High Court in making Orders necessary for the purposes of its functions.

Bearing in mind that the main function of a Tribunal is to find facts and that it will not be concerned with imposing legal liability for any wrongs that might have been done - that is a matter of civil law and is reserved to the Courts - it can be seen that the powers given to a Tribunal under Section 4 are quite restricted. What is envisaged here is that, for example, a Tribunal should have power to keep order at its sittings".

JUDICIAL COMMENTARY

99. The coercive reasoning is, of course, to be found in judicial commentary. Before the decision of Blayney J. in Kiberd, Section 4 and its meaning had already received consideration in Goodman International -v- Mr Justice Hamilton [1992] 2 I.R. 542 where McCarthy J. at p. 605 referred to Section 4 in the following terms:-

"Section 4 authorises a Tribunal to make such Orders as it considers necessary 'for the purposes of its functions'. The purposes of its functions are to carry out the remit of Parliament. This may involve the issuing of witness summonses in accordance with Section 1 subsection 1 of the Act of 1921, inspection of particular places, the taking of a shorthand note, arrangements for sittings, the printing of its report and so on".

100. Hederman J, in the same case, referred at p. 601 to Section 4 and Section 6 of the 1979 Act in the following terms:-

"It is clear that these amendments to the Act of 1921 are to give Tribunals set up under the relevant legislation further efficacy. For example, in the past it was regarded as anomalous that the most a Tribunal of Inquiry could do was to 'recommend' to the Attorney General that certain costs should be paid out of public funds. Section 4 does no more than to increase the efficacy of Tribunals. Many administrative Tribunals, as well as an Inquiry such as this Tribunal, are clothed with what history has shown are efficacious powers when exercised in the Courts. The fact that powers similar to those exercised by the High Court are conferred on a particular administrative Tribunal or Tribunal of Inquiry does not constitute such bodies courts."

101. It is quite clear that neither Judge contemplated an interpretation of Section 4 along the radical lines put forward in the instant case, which, as I have said, depends almost exclusively on a particular view or interpretation of the decision of Blayney J. in Kiberd v. Mr Justice Hamilton [1992] 2 I.R. 257.

102. The facts have already been set out insofar as is necessary in the reasoning of the Sole Member, so I can proceed directly to the passage upon which Counsel for the Tribunal relies, which is to be found at pp. 264-5 as follows:-

"In my opinion the sole issue in this case is whether the Order of the Tribunal was authorised by this section - whether it was intra vires the section. On behalf of the Applicants it was submitted that the section should not be given a broad construction; but what was involved here was a compulsory power being used against a citizen and that the Court should adopt a narrow and restrictive view of the scope of the section.

I do not think that there is any real doubt as to how the section should be construed. Its terms are very clear -

'A Tribunal may make such Orders as it considers necessary for the purposes of its functions...'

It is not necessary to consider the second part of the section. The section gives the Tribunal power to make a certain category of Orders, the nature of the Orders being such as it considers necessary for the purposes of its functions. So, for an order to come within the power given by the section, it must be one which the Tribunal considers necessary for the purposes of its functions. Or, to express it in a different way, whenever the Tribunal considers - which is the equivalent to saying 'is of opinion' - that it is necessary for the purposes of its functions to make a particular Order, it has power to do so under the section."

103. There are, of course, two distinctions of enormous and fundamental importance between the Kiberd decision and the instant case, firstly, that no question existed as to whether or not the High Court had the jurisdiction to make such an Order - it plainly did. Secondly the Tribunal had ordered the two journalists to appear before it - not before some nominated person or agency.

104. This passage is the linchpin of the Tribunal's position. Implicit in that contention is the inference that one can construe a section by looking at part of the section only. No authority has been cited to suggest the construction of a Statute can be carried out in such a selective way.

105. In the particular context, it was not necessary for Blayney J. to construe the second part of the section because nothing turned upon it once it was clear that the Tribunal had only made an Order of the type which the High Court could itself make. There was a complete absence from the Judge's ruling of any hint of recognition that Section 4 conferred on Tribunals powers which the High Court didnot have. If his decision is to be taken as buttressing a completely novel interpretation of Section 4, it seems quite extraordinary that his judgment is utterly silent on a matter of such significance and importance. In the absence of any such express or explicit references in Kiberd, I must conclude it cannot be regarded as a safe authority for the radical construction suggested.

106. Finally, it is contended by the Respondent that no question of delegation of power arises in the context of the making of the Order that the Sole Member can act through his staff or employees. However, this is not a simple procedural matter where the Tribunal enjoys the voluntary compliance of a witness and can ask a member of staff to deal with it. It is, on the contrary, a matter of substance involving a compulsory process and an interference with constitutional rights of a citizen. Such a power, if available, could only be exercised by the Sole Member himself and, it seems clear to me, such a power could only arise on foot of a clearstatutory mandate which exists for every other form of compulsory questioning where the right to remain silent is compromised.

107. The powers contained in legislation such as the Offences Against the State Act, 1939, the Criminal Justice Act, 1984 and the Companies Act, 1990 must, insofar as they purport to override a constitutionally protected right, pass a proportionality test, in the sense that they must be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations. They must impair protected rights as little as possible.

108. As Costello J. stated in Heaney v. Ireland [1994] 3 I.R. 593 at p. 609:-

"In applying the test of proportionality the Court is required to assess the detriment to the right holder which the restriction on the exercise of the right will impose.

In the absence of a statute, how is the test of proportionality to be applied? It seems clear to me that the exercise of any substantial discretionary power, particularly one with penal implications, requires the mandate of statute.

In Laurentiu -v- The Minister for Justice & Others (High Court Geoghegan J., 22nd January 1999) a section of the Aliens Act 1935 and an Article of the Aliens Order 1946 were found to be inconsistent with the provisions of the Constitution.

The section permitted the Minister, by Order, to deport aliens if he deemed it to be conducive to the public good to so order. Mr. Justice Geoghegan found that the Oireachtas merely permitted the Minister for Justice to legislate for deportation and that a Minister could not have powers in relation to deportation unless some policy or principles on foot of which he was to act were set out in the parent Act. He further held that the general power conferred on the Minister by Article 13 of the 1946 Order was a power which should be conferred by the Act itself and not by a statutory instrument. In short, the Minister was not entitled to confer upon himself the power to deport which he had practised under Article 13 (1) of the 1946 Order.Such a provision would have to be contained in the main Act. This Article contained substantive legislation which the Judge regarded as being prohibited by Article 15 of the Constitution.

In short, the 1935 Act was found to be excessively vague for the exercise of such a sweeping power, yet that power was considerably more specific than the power to make any Order deemed necessary under Section 4 of the 1979 Act. This case must also be regarded as a strong authority supporting the requirement for a specific statutory mandate.

In my view, Section 4 is to be construed as entitling a Tribunal, within its terms of reference, to make such Orders as it considers necessary for the performance of its functions. In so doing, they have the powers of the High Court, including the inherent powers of that Court, but they do not have powers, rights or privileges greater than those of the High Court. The power contended for on behalf of the Respondent would require the enactment of legislation for that purpose.

Obviously in exercising these powers, a Tribunal does so in a manner analogous to the manner in which the High Court exercises such powers.

The key word here is "powers". The fact that in exercising its powers, the High Court does so in the context of rules drawn up for the purpose of inter partes litigation is beside the point.

109. In conclusion, it seems to me the first Order must be quashed as having been made without jurisdiction.

THE SECOND ORDER

110. On the 26th day of April 1999, the Sole Member further ordered as follows:-

"IT IS ORDERED that Liam Lawlor T.D. of "Somerton", Lucan, County Dublin do on or before the 18th day of May 1999 or within such other period as may be allowed by the Tribunal make discovery of and produce to a Solicitor acting for the Tribunal at the offices of the Tribunal into Certain Planning Matters and Payments, State Apartments, Upper Yard, Dublin Castle, Dublin 2:-

1. All documents relating to any accounts held by or on behalf or for the benefit of Mr. Liam Lawlor, whether in his own name or otherwise, in any bank, building society or other financial institution, either within or outside the State between the 1st day of January 1987 and the 31st day of December 1994, including (but not confined to) statements of account, correspondence, cheque counterfoils, paid and returned cheques, deposit receipts, withdrawal receipts and deposit books and records.

2. All documents and records relating to the payment to Mr. Lawlor of any monies by Arlington Securities plc and/or Mr. Thomas Gilmartin or by anybody on their behalf.

3. All documents and records relating to the negotiation of any cheques given to Mr. Liam Lawlor by or on behalf of the said Arlington Securities plc and/or Mr. Thomas Gilmartin.

4. All documents and records relating to the provision of any services by Mr. Liam Lawlor to the said Arlington Securities plc and/or Mr. Thomas Gilmartin including (but not confined to) contracts, correspondence, memoranda, reports, advices, minutes of meetings or instructions."

111. The reasoning of the Sole Member in respect of the making of this Order constitutes the bulk of the text of his ruling, and for convenience I have annexed the entire ruling as Appendix 1 to this judgment.

112. Completely different considerations arise in respect of the making of this Order than arose in relation to the Order directing Mr. Lawlor to attend for questioning by Counsel.

113. Firstly, it is conceded that an Order for Discovery and Production of documents is clearly within the jurisdiction of the Tribunal, so that the only issues which arise are whether the discovery ordered is excessive in scope and whether fair procedures have been observed. In effect, any objection was confined to the first part of the Order which directed Mr.Lawlor to make discovery of bank or building society documentation between the 1st day of January 1987 and the 31st day of December 1994.

114. Part of the argument against discovery was by reference to the circumstances in which the High Court will usually order discovery.

115. It is suggested that, except in special circumstances, the obligation to make discovery in the High Court arises only after pleadings are closed. In such a situation, the basic allegation will have been made out in sufficient detail to identify the issues. Here, it has been submitted, it is more in the nature of an assertion of a power because, according to the Applicant, he has not been given enough information in relation to the various allegations (even the Arlington allegations) to swear an Affidavit of Discovery. It is suggested that in the High Court a party can resist discovery by asserting that a claim isunstateable, or that further particulars must first be furnished before discovery is made.

116. I think the starting point in deciding this issue must be the recognition of the different functions of a Court and those of a Tribunal of Inquiry. The function of the Court is to adjudicate. The function of a Tribunal is to investigate.

117. As Hederman J. observed in his judgment in Goodman International -v- Mr. Justice Hamilton [1992] I.R. 542 at p. 601 (which was cited with approval by the Supreme Court in its judgment in Haughey -v- Moriarty (unreported 28th July 1998)):-

"Normally a Judge or a Court is concerned in the first instance with disputes between rival parties and such do not exist in the case of this Tribunal and, secondly, there is no power to inflict any penalty. All this Tribunal can do is to investigate, make findings and report these findings to the Minister."

118. The difference in function between Courts and Tribunals is reflected in the fact that in the case of the Court the evidence is gathered by the parties to the litigation. In a Tribunal the information which might ultimately be put in evidence at a public sitting of the Tribunal is gathered by the Tribunal itself. In this context, the most important power possessed by the Tribunal is the power to order discovery and, that being so, it seems to me that Tribunals should not be restricted in this regard unless what is sought is manifestly unreasonable. I do not think such a view is in any way at variance with thejudgment of the Supreme Court in Haughey -v- Moriarty (unreported 28th July 1998) in which Hamilton C.J., having cited with approval the passage in the judgment of Lynch J. in the case of National Irish Bank Limited & Another -v- Radio Telefis Eireann (unreported 20th March 1998) in which he held that the public interest in exposing wrongdoing may outweigh the public interest in maintaining bank/customer confidentiality, went on to state:-

"Just as such public interest in defeating wrong-doing may outweigh the public interest in the maintenance of confidentiality, the exigencies of the common good may outweigh the constitutional right to privacy.

The exigencies of the common good require that matters considered by both Houses of the Oireachtas to be of urgent public importance be enquired into, particularly when such enquiries are necessary to preserve the purity and integrity of our public life without which a successful democracy is impossible.

In this case both Houses of the Oireachtas deemed it expedient that a Tribunal of Inquiry be established to inquire into the matters set forth in the resolutions.

The effect of such resolutions is undoubtedly to encroach upon the fundamental rights of the Plaintiff/Appellants in the name of the common good.

The encroachments on such rights is justified in this particular case by the exigencies of the common good.

Such encroachment must however be only to the extent necessary for the proper conduct of the inquiry.

Both Houses of the Oireachtas are entitled to assume that the Tribunal will conduct its investigation in accordance with the principles of constitutional justice and fair procedures and will only interfere with the constitutional rights of the Appellants when, and only to the extent that, it is necessary for the proper conduct of the inquiry."

119. The Respondent argues that Tribunals and Courts make such Orders for entirely different purposes. This point was argued by reference to the following distinctions:-

120. A. In the case of the Court the purpose of making such an Order is that a party to litigation should have access to his opponent's documents (and, usually, visa versa);

121. B. In the case of a Tribunal of Inquiry the purpose of making such an Order is for the Tribunal of Inquiry itself to have access to the documents in question for its own purposes;

122. C. In the case of a Court the criterion which the Court uses to decide whether to make such Orders is relevance to the issue in the action which is determined by the Court by reference to the pleadings;

123. D. In the case of a Tribunal of Inquiry, relevance is determined by the Tribunal itself by reference to its own terms of reference and the requirements of its investigations;

124. E. In an application for discovery in a lis inter partes, a party makes an application and the Court adjudicates;

125. F. In a Tribunal of Inquiry there are no parties, no application and no adjudication; The Tribunal itself decides what documents it requires for the purposes of its inquiries.

126. The Applicant argues that the discovery ordered is too wide in scope and is in the nature of a 'trawl'. In this regard, the case relied upon by the Applicant, Dunnes Stores Ireland & Others -v- George Maloney and the Minister for Enterprise, Trade and Employment [1999] 1 ILRM 119 essentially concerned a challenge to the Minister for failing to give reasons for her decision to appoint an authorised officer for the purposes of Section 19 of the Companies Act 1990.

127. The scope of documentation sought was in issue in the sense that the Court found the demand for books and documents was excessive in content and unreasonable as to the time which it allowed for compliance. The Court further held it was not possible to determine whether the documentation sought fell within the scope of Section 19 without knowing the reasons for which the Minister had thought it appropriate to appoint an authorised officer.

128. This issue is dealt with at p. 139 of the judgment of Laffoy J. as follows:-

"Without knowing the reasons why the Minister thought it appropriate to appoint an authorised officer, it is impossible to form any view as to whether even the categories of documents sought which are specific fall within the ambit of the entitlement to seek documents under Section 19. The inclusion of the categories which are of a general nature gives the demand as a whole the hallmark of a trawl. That being the case, the only reasonable inference is that the demand was excessive in content".

129. She further held that the demand could not be complied with between Friday and Monday afternoon. The documentation sought related to a ten year period ending on the 31st of December 1997 and was both of a general financial nature and specifically related to certain accounts and business relationships.

130. I think that case is clearly distinguishable from the case under review, not least because the initial scope of the documentation sought was narrowed down by the Sole Member following submissions made by the Applicant. Not only is it focused in time but it is also specific to a sufficiently reasonable degree.

131. There has been no suggestion that the time allowed for the Applicant to make the Affidavit was unreasonable nor has the Applicant ever explained the basis for the proposition that the Order was either excessive or unreasonable beyond simply asserting that the scope was too wide.

132. There is no doubt in my mind that the Sole Member had information of a reasonably detailed nature concerning the Arlington payments, and once that minimum threshold is established, it seems to me it would be quite wrong for this Court to substitute its view for that of the Sole Member by inquiring if it would have made some different form of Order.

133. In this context I would refer to the following passage from the judgment of Finlay C.J. in O'Keeffe -v- An Bord Pleanala [1993] 1 I.R. 39 at p. 71:-

The Court cannot intervene with the decision of an administrative decision making authority merely on the grounds that (a) it is satisfied that on the facts as found it would have raised different inferences and conclusions, or (b) it is satisfied that the case against the decision made by the authority was much stronger than the case for it."

134. Again at p. 72 he stated:-

"I am satisfied that in order for an Applicant for Judicial Review to satisfy a Court that the decision making authority has acted irrationally in the sense which I have outlined above so that the Court can intervene and quash its decision, it is necessary that the Applicant should establish to the satisfaction of the Court that the decision making authority had before it no relevant material which would support its decision."

135. Accordingly, while a Tribunal could not raise a general requirement for discovery against a party in respect of whom it lacked any information or material, once relevant material is there, the Court should not interfere.

136. I have considered fully the reasoning of the Sole Member and it seems to me he took the most painstaking and careful steps at all stages in relation to this aspect of the matter, and I have no difficulty in finding the following:-

137. A. The requirements of notice set out in the case of Haughey -v- Moriarty (Supreme Court unreported 28th July 1998) were fully complied with;

138. B. The Sole Member's decision to require discovery and production of documents met the criteria set out in The (State) Lynch -v- Cooney [1982] I.R. 337 in that the decision was:-

(a) Bona fide held and

(b) Factually sustainable and

(c) Not unreasonable

139. C. Any intrusion into the Applicant's constitutional rights was limited and the Order made was necessary in the public interest and for the purpose of enabling the Tribunal to properly discharge its mandate.

140. This leaves the question of fair procedures and natural justice.

141. The Applicant argues that in the absence of detailed information as to the basis for the allegations raised against him, including the sources relied upon, he should not be required to make such an Affidavit.

142. However, it seems to me that the process of information gathering with which discovery is clearly concerned forms part of the preliminary investigation or the first stage of the Tribunal's work. It would needlessly hamper and interfere with the Tribunal's work if it had to meet all the demands of the Applicant at this point in time.

143. In this regard, the panoply of rights described in Re. Haughey [1971] I.R. 217 cannot be said to arise at this stage of the Tribunal's work.

144. As Shanley J. pointed out in N.I.B. (13th July 1998) at p. 32:-

"I am satisfied that there is no entitlement to invoke the panoply of rights identified by the Supreme Court at the information-gathering stage of the Inspectors' work. The procedures identified by the Inspectors following the outcome of the first stage accord in my view with the requirements of fairnessand justice and guarantee where appropriate the exercise of the rights identified in the Haughey case".

145. The whole question of fair procedures in the context of Inspectors appointed under the Companies Act, 1990 was again addressed by Kelly J. in N.I.B. (High Court, unreported 19th March 1999).

146. He stated as follows at pp. 33-36:-

"The applicants say that having regard to the position in Re. Haughey [971] IR 217 they should now be entitled to the documents which they seek. This is notwithstanding the fact that the Inspectors are at this stage only engaged in the first stage of their investigation, namely, information-gathering. I have formed the view that the applicants have misconceived the functions of Inspectors appointed under the provisions of the Companies Act, 1990. An inspection of this type is primarily investigative. It only becomes adversarial in limited circumstances. InChestvale Properties Limited v. Glacken [1993] 3 I.R. 35, Murphy J. cited with approval the observations of Sachs L.J. in Re. Pergamon Press Limited [1971] Ch. 388. That judge said that Inspectors appointed under the Companies Act start:-

'Very often with a blank sheet of knowledge (and) have to call for information in whatever way it can best be obtained. That may be by interview, it may be from statements obtained in writing, it may be from accounts and other documents, or it may be by their exercising their powers under Section 167, subsection (3) to put questions to individuals, either on oath or not on oath.

One way or another it may be a considerable time before the Inspectors have before them sufficient information to see any pattern in the affairs of a company. Even when this pattern commences to take shape, they may need further material before the possibility emerges of any criticism attaching to individuals. Moreover, that possibility may derive from documentary evidence which is in substance uncontested, or it may derive from a matter on which there may be a conflict of evidence between some witness and the person to whom blame may be attributed. In the latter case there may come the stage when the Inspectors have to decide whether to simply record that conflict or whether to seek to resolve it. The more complex the affairs of the company and the greater the number of subsidiary companies, the longer it may be before those respective stages are reached'.

Murphy J. went on to say:-

'The present proceedings were instituted when the inquiry had reached only a very preliminary and exploratory stage.... Even if the presumption were otherwise and that one should anticipate a stage being reached in which the respondent would find it necessary to make a choice as between conflicting claims, it is clear that that stage has not yet been reached. Accordingly, the present application is premature insofar as it is based upon the contention that the Inspector is engaged in a task which at present involves him in a quasi-judicial function'.

In the present case it is to be noted that the Inspectors are only at a preliminary stage of their investigation and have not been called upon to exercise any quasi-judicial functions since that will not arise until stage two is reached. At stage two of their investigation they have, in my view, made it clear that all of the rights to which a party might be entitled under the decision inRe. Haughey will be respected.

The English inquiry which gave rise to the decision in Re. Pergamon Press Limited spawned further litigation which was also dealt with in the Court of Appeal. It was in Maxwell v. The Department of Trade and Industry and Others [1974] 2 All E.R. 122. There Lord DenningM.R. called attention to what an investigation under the Companies Act was not. He said at page 127:-

'Remember what it is not. It is not a trial of anyone, nor anything like a trial. There is no accused person. There is no prosecutor. There is no charge. It is not like a disciplinary proceeding before a professional body, nor is it an application to expel a man from a trade union or a club, or anything of that kind. It is not even like a committee which considers whether there is a prima facie case against a person. It is simply an investigation without anyone being accused'.

Insofar as this jurisdiction is concerned, that, in my view, is a correct summary of the position which obtained at least insofar as the investigatory stage of the Inspectors' task is concerned. Once one moves into the second stage then, whilst the investigation is not transformed into an adversarial hearing, nonetheless fair procedures have to be observed insofar as any adverse conclusions may be drawn in relation to individuals. The procedure which the Inspectors have outlined as one which they will follow if such a stage is reached is in complete compliance with their obligations to observe fair procedures under the relevant jurisprudence. It follows therefore, that I take precisely the same view as didShanley J. that there is no entitlement to invoke the rights established in Re. Haughey at the information-gathering stage of the Inspectors' work".

147. These two judgments seem to me to be definitive on the question of when Re. Haughey rights arise, at least in the absence of special circumstances.

148. The Applicant has expressed concern about leaks of information given to the Tribunal which have appeared in the media. He says the whole concept of fair procedures must be measured against the reality that such leaks have, in fact, occurred and may occur again.

149. However, he accepts that no leaks have come from the Tribunal itself. Such leaks seem to have come from sources outside the Tribunal who may have provided certain information to the Tribunal and have given such information, or part of it, to the media at the same time.

150. While the discovery in this case is effectively an exercise between the Applicant and the Respondent, so that no leaks of information can possibly arise, I think I should observe that the fact that leaks may have occurred could never and should never occlude the requirement to identify the legal rights of the respective parties in a completely detached manner, not least because to hold otherwise would invite a repetition or increase in such activities by parties whose only wish might be to subvert the workings of the Tribunal. If there is a problem with leaks, thesolution in my view must lie in better investigation and increased sanctions for those who perpetrate such leaks.

151. On the question of natural justice, I think I need do no more than quote the following passage from the judgment of Henchy J. in Kiely -v- Minister for Social Welfare [1977] IR 267 at p. 281:-

"Tribunals exercising quasi judicial functions are frequently allowed to act informally - to receive unsworn evidence, to act on hearsay, to depart from the rules of evidence, to ignore courtroom procedures, and the like - but they may not act in such a way as to imperil a fair hearing or a fair result. I do not attempt an exposition of what they may not do for, to quote the frequently cited dictum of TuckerL.J. in Russell -v- The Duke of Norfolk [1949] 1 All E.R. 109, 118 'there are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic Tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the Tribunal is acting, the subject matter that is being dealt with, and so forth.'"

152. In my view Sole Member did not offend any requirement of natural justice having regard to these criteria.

153. For these reasons it seems to me that the challenge to the discovery Order must fail.

THE THIRD ORDER

154. On the 26th day of April 1999, the Sole Member further ordered:-

"IT IS ORDERED that LiamLawlor T.D. of 'Somerton', Lucan, County Dublin do on or before the 10th day of May 1999 furnish to a Solicitor acting for the Tribunal at the offices of the Tribunal into Certain Planning Matters and Payments, State Apartments, Upper Yard, Dublin Castle, Dublin 2 an Affidavit stating the name(s) of anycompany(s) of which was (sic) between 1st January 1987 and 31st December 1994 a shareholder or director or in which he had a beneficial interest and giving details of any such shareholding or directorship."

155. The reasoning of the Sole Member in relation to this Order appears at p. 16 of his Ruling as follows:-

"The information that the Tribunal has received suggests that the payees on the cheques given to Mr. Lawlor on behalf of Arlington Securities plc. were left blank and that the payees that were subsequently entered may have been companies. I consider that it is necessary for the purposes of my functions to make an Order in the terms of paragraph (c). In forming that opinion, I have had regard to the matters already set out at paragraphs (a) to (h) above".

156. The reasons then furnished at (a) to (n) at pp. 15-16 were the identical reasons which persuaded the Sole Member to direct the Applicant to attend for questioning by Counsel.

157. The question must again arise as to whether or not a Tribunal has power or jurisdiction to compel a party against whom adverse allegations have been raised to swear an Affidavit.

158. Given the findings I have made in respect of the first Order, this question accordingly becomes: has the High Court power to direct a person to swear an Affidavit in such circumstances?

159. It is conceded by the Respondent that there is no provision in the Superior Court Rules whereby the High Court can so direct, nor has any authority been cited to show that the High Court, even in the exercise of its inherent jurisdiction, has a clear entitlement to make such an Order.

160. The only inherent Rules of the Superior Courts which bear on inherent jurisdiction relate to that power whereby the High Court can dismiss vexatious or unstateable proceedings.

161. There have been judicial pronouncements dealing with the issue of the inherent jurisdiction of Courts to make Orders.

In the case of Bekhor Limited -v- Bilton [1981] 1QB 923, a mareva injunction was granted, and an Order was subsequently obtained requiring the Defendant to swear an Affidavit disclosing the full value of his assets, and identifying their nature and whereabouts. On appeal to the court of Appeal, one of the issues which arose was whether the Court had jurisdiction to make such an Order. The Court of Appeal held by a majority that the Court had an inherent power pursuant to Section 45(1) of the Supreme Court of Judicature (Consolidation) Act, 1925, to make all such ancillary Orders as appeared just and convenient to ensure the effectiveness of themareva injunction.

162. Ackner L.J. considered the general issue of inherent jurisdiction as follows (at page 942):-

"If I am wrong in concluding that Section 45 provides the basis for the jurisdiction to make the type of ancillary Order referred to above, then the question arises as to whether the Court has an inherent or residual jurisdiction to make such an ancillary Order. Insofar as MrStamler contends that there is inherent jurisdiction in the Court to make effective the remedies that it grants, this seems to me merely another way of submitting that, where the power exists to grant the remedy, there must also be inherent in that power the power to make ancillary Orders to make that remedy effective. This I have accepted. However, if and insofar as he contends that the Courts have a general residual discretion to make any Order necessary to ensure that justice be done between the parties, then in myjudgment that is too wide and sweeping a contention to be acceptable."

163. Stephenson L.J. stated at page 951:-

"A Court of law can only do what it has power and jurisdiction to do. It is as important that it should not exceed its powers to interfere in the lives of private citizens and to compel them to make public what they may wish to keep private, as that it should use them to the full to protect and enforce private and public rights and restrain their destruction or infringement".

164. Stephenson L.J. further described the powers of a judge as follows at page 954:-

"He has a judicial discretion to implement a lawful Order by ancillary Orders obviously required for their efficacy, even though not previously made or expressly authorised. This implied jurisdiction, inherent because implicit powers already recognised and exercised, and so different from any general or residual inherent jurisdiction, is hard to define and is to be assumed with caution."

165. This decision was cited by Moriarty J. in the case of M -v- D [1998] 3 IR 175 as support for the proposition that a Court may have been willing to give the Order sought in M -v- D (namely an Order under s. 9 of the Proceeds of Crime Act, 1996) even in the absence of an express power. The decision of Moriarty J. does not refer specifically to the limitations upon the exercise of inherent jurisdiction, as that did not arise directly for consideration in the case before him.

166. In the present context however, the dicta of Ackner L.J. and Stephenson L.J. provide an important indication that the inherent powers of the Courts should not be extended to include a "general residual discretion" and that, even where an implied jurisdiction could be found to exist, it should be assumed with caution.

167. The only authority I have found on the question of compelling the swearing of an Affidavit is Revenue Commissioners v. Hayes 101 (1967) ILTR at p. 121.

168. In that case the Revenue Commissioners required a corrective Affidavit from the executor as to the deceased's assets. This was not forthcoming. The Commissioners then moved by notice of motion for an Order that the executor should furnish a corrective Affidavit. It was held by Kenny J. that the Revenue Commissioners had no power to direct a personal representative to file a corrective Affidavit in death duty matters.

169. Kenny J. stated (at p. 121):-

"There is power under the Act for the Revenue Commissioners to direct a person to file an Affidavit, but there is no provision which allows them or the Court to compel a further Affidavit. To direct a further Affidavit would appear to prejudge the issue as to the correctness of the first Affidavit. There is no power to direct this Affidavit. I will make no Order on this motion".

170. In fairness to the Respondent, this can hardly be described as a defining authority on the powers of the High Court in such a matter.

171. It is a matter of common experience in the Courts that judges do habitually require, as a condition of granting adjournments, or before granting interlocutory or other relief, that a party to litigation put in an Affidavit. However, this is more in the nature of the Court indicating an alternative to a party in default which is preferable to being at the receiving end of a final Order.

172. It is quite a different matter to compel a person against whom adverse allegations had been raised to swear an Affidavit which may go to the construction of a case against him.

173. The Applicant submits that the High Court clearly has no power to order the making of an Affidavit by a person (a) who has not himself invoked the jurisdiction of the Court (b) against whom allegations are made (c) who has not been given a sworn statement of the said allegations and (d) in a context where the Affidavit he makes can form part of a procedure with adverse consequences for him.

174. The Applicant makes the point that this is "evidence gathering" under the guise of "information gathering". He further contends, and this is a point concerning fair procedures, that any such Affidavit would form part of the record of the Tribunal and could be used to cross-examine the Applicant and accordingly his Re. Haughey rights must first be protected before he could be required to commit himself on oath in an Affidavit.

175. In effect, therefore, the ground covered under this submission incorporates much of the argument raised in relation to the first Order and Mr. Hardiman contends that, in the absence of any clear statutory or other authority authorising such a power in the High Court, such an Order simply cannot be made.

176. On the face of it, it might be suggested that the relief sought under the existing Order is a natural adjunct to the Discovery Order and in that context justifiable but one must not lose sight of the underlying principle because further Orders of a similar nature might well prove for more probing and intrusive in a future case.

177. Such a concern could well arise, for example, in the case of an Affidavit directed under Section 9 of the Proceeds of Crime Act, 1996, which entitles a Court to require a person to file an Affidavit specifying his property and income.

178. Here is yet another instance of a requirement for the presence of a statutory mandate before a person can be compelled to suffer an incursion upon his constitutional rights.

179. Given the draconian nature of the power, and given the absence of any privilege against self-incrimination in the Act, McGuinness J. in Gilligan v. Criminal Assets Bureau [1998] 3 IR 185 stated as follows as p. 233:-

"In order to minimise any encroachment on the citizen's rights and in order to operate the procedures under the Act in a way which in accordance with constitutional justice, (sic) it seems to me that the Court would need to take particular care in deciding whether to make an Order under Section 9 requiring disclosure. This is especially so when one bears in mind the wide scope of the discovery which may be ordered. I note that even inM. v. D. [1998] 3 IR 175 where the primary evidence presented by the applicant was full and convincing, the learned Judge required an undertaking to be given by the Director of Public Prosecutions not to profit from any disclosure which might take place in those proceedings in a future prosecution of the respondent.Moriarty J. referred to 'the degree of nexus between the applicant and the Office of the Director of Public Prosecutions'. The evidence given in the instant case shows an even clearer nexus than Moriarty J. might have envisaged between the personnel of the Criminal Assets Bureau and the Criminal Investigation Section of the Garda Siochana. It appears to me the type of undertaking sought by Moriarty J. in M. v. D. case would be essential in virtually every case where an Order under Section 9 is granted, even then there may well be difficulty in operating such an undertaking in a secure and water-tight manner".

In M. v. D. [1998] 3 I.R. 175, Moriarty J. had required precisely such an undertaking in order to prevent possible prejudice in any future criminal proceedings brought against a person who would make such an Affidavit under compulsion.

180. These are important decisions because they emphasise how two judges had considerable reservations about Orders under the section. They had the power but there was no privilege. In the instant case, insofar as an Affidavit is concerned, there may well be privilege, but where is the statutory power?

181. All of the matters traversed in relation to the first Order point strongly to an approach that necessitates specific statutory powers to make such an Order. Essentially the same right, namely, the right to silence, is being compromised by the first Order and by this Order also.

182. As Barrington J. pointed out in N.I.B. at p. 17:-

"The right to silence had its origins in the common law that was elevated into a constitutional principle by the Fifth Amendment to the American Constitution. It grew out of the revulsion of the judges for forced confessions as being both unjust in their origin and unreliable in practice. Some judges also seem to have felt that it was unfair to place a man in a position where he was condemned no matter what he did. As Lord Mustill put the matter in R. v. The Director of Serious Fraud Office (1993) AC 1 at p. 32 -

'Next there is the instinct that it is contrary to fair play to put the accused in a position where he is exposed to punishment whatever he does. If he answers, he may condemn himself out of his own mouth; if he refuses he may be punished for his refusal'."

183. In the absence of a clear statutory provision, it seems to me that I should quash this Order also for want of jurisdiction.

184. Again, if I am in error in so holding, I would hold in favour of Mr. Hardiman's submission on fair procedures in relation to the point in time where the Applicant'sRe. Haughey rights accrue, namely, in this situation, where the Applicant is obliged to commit himself in an Affidavit as to facts.

185. An Affidavit sworn by a person in the Applicant's position requires him to commit himself in a form and manner which clearly will form part of the evidence before the Tribunal and may consist of material either to build a case against him or on which he may be later cross-examined. It is not therefore confined in its intended user or effect to the preliminary stage of the investigation but has a very real capacity to be a document of major significance at the public hearings or perhaps in some other forum to the detriment of the Applicant.

186. Without knowing the full detail of the case made against him, the Applicant is, in effect, being ordered to make a case against himself either by virtue of the matters which he deposes in the Affidavit or by his omissions. He could be seriously disadvantaged at the public hearing had he sworn an Affidavit at an earlier stage which was significantly deficient in any respect for reasons of which he might not have known at the time of making the Affidavit.

187. It seems to me that in this situation, the supposed demarcation line between preliminary investigation work and full public hearings is transgressed. Accordingly, before the Applicant is required to swear such an Affidavit, he must be afforded his Re. Haughey rights. As the Respondent has made it quite clear that such rights will not be afforded at this juncture, I would feel obliged to quash the Order made on this alternative ground also.

jkLawKJ

188. I have come to the following conclusions in respect of the three Orders made by the Sole Member on the 26th day of April 1999.

(a) The First Order.

189. The first Order requires the Applicant to attend for questioning by Counsel without the presence of the Sole Member.

190. It is contended that the authority for making such an Order is to be found in Section 4 of the Tribunals of Inquiry (Evidence) Act 1979.

191. That section provides:-

"A Tribunal may make such Orders as it considers necessary for the purposes of its functions and it shall have, in relation to their making, all such powers, rights and privileges as are vested in the High Court or a Judge of that Court in respect of the making of Orders".

192. It has been argued that this section should be read disjunctively, so as to mean that a Tribunal may, within the law, make any Order it regards as relevant to its terms and necessary for the performance of its functions, subject only to the limitation that the opinion leading to the making of the order be one which isbona fide held, factually sustainable and not unreasonable. The second part of the section, it is contended, merely describes or relates

to certain features attending the making of Orders by the High Court, namely, the rights and

privileges attaching to such orders, and the section should not be construed as limiting the power of Tribunals to make only those Orders which the High Court can make.

193. The Court finds that there are no disjunctive words in the section and that none of the words claimed to create a disjunctive effect do in fact have any such meaning. The second part of the section is merely explanatory of the first.

194. The Court, however, does find that there is a syntactical ambiguity in the section arising from the words at the end of the section which are: "in respect of the making of Orders", because there is a possibility that these words could either apply to the scope and range of an Order on the one hand, or to the mere mechanical and incidental features of the making of an Order on the other hand.

195. However, when contrasting the construction contended for by the Respondent against the opposing construction, ordinary canons of statutory construction, and in particular, that of common sense, suggest strongly that Tribunals have those powers, and those powers only, which the High Court possesses to order certain things.

196. The Court further holds that the construction argued for by the Respondent invokes in addition canons of strict construction and doubtful penalisation because the effect of Section 4, when taken in conjunction with Section 3 of the 1979 Act, may have penal implications for a person who fails to comply with such an Order.

197. The legislative history is quite at variance with the construction contended for by the Respondent. At the time of its enactment in 1979, no sweeping new powers were contemplated under Section 4.

198. The power sought to be exercised by the Tribunal is not merely procedural but a matter of considerable substance and as such requires, in my view, a specific mandate in

statute. If either the Tribunal or the Oireachtas feel that the present powers of Tribunals are inadequate for the proper discharge for the functions of a Tribunal, legislation can be introduced to widen and extend powers along the lines of investigations undertaken under the Companies Act, 1990. The Court further holds that the privilege guaranteed under s. 5 of the 1979 Act would be lost if the Tribunal could make an Order of the type made in this case.

199. The Court further holds that a power of such substance cannot be delegated or deputed by the Sole Member to any other person.

200. The Court will in these circumstances and for the reasons elaborated in greater detail in the judgment quash the first Order.

(b) The Second Order:

201. The second Order concerns discovery of documents in relation to payments made to the Applicant by Arlington Securities plc and/or Thomas Gilmartin and to the Applicant's bank/building society accounts between 1987-1994.

202. In this respect, the Court accepts the submissions of the Respondent.

203. Bearing in mind that the function of Tribunals is investigative and not adjudicative, discovery and production of documents is the most important means whereby a Tribunal can advance its investigations.

204. It is clearly with the jurisdiction of the Tribunal to make such an Order and the objections to it are confined to its scope and the lack of fair procedures, in the sense that the

documentation sought is too broad and because the Respondent has not disclosed sufficiently detailed allegations and the sources thereof to the Applicant prior to the making of the Order.

205. The Court holds against the Applicant in both respects. There is clearly evidence or material available to the Sole Member to justify the discovery Order and it is not the function of the Court to put itself in the shoes of the Sole Member to decide if it would have made a somewhat different Order in the same circumstances, unless what is sought is manifestly unreasonable.

206. The Sole Member received full submissions from the Applicant before making any Order, following which he narrowed down the scope of discovery. He complied fully with the notice requirements imposed by the recent Supreme Court decision in Haughey v. Moriarty.

207. As this line of enquiry is pursued as part of the preliminary work of the Tribunal, there can be no question of requiring the Tribunal to fully disclose its hand and provide all the information in its possession at this stage of the Inquiry. It is only at a later stage, the second stage, being that of public hearings that the Applicant is entitled to invoke the panoply of rights known as the"In Re Haughey rights" arising from a Supreme Court ruling of 1971, except in special circumstances.

208. Accordingly, the Applicant's challenge to that Order fails.

(c) The Third Order:

209. The third Order directs the Applicant to swear an Affidavit detailing any companies in which he had an interest between 1987-1994. The issue is whether the Tribunal

has jurisdiction to compel any person, but particularly a person against whom adverse allegations are being raised, to swear such an Affidavit.

210. No judicial precedent clearly setting out such a jurisdiction has been produced nor is there provision for the making of any such Order in the Rules of the Superior Courts.

211. The Respondent contends that the right to silence is compromised by the making of such an Order in precisely the same way as arises in relation to an Order compelling the Applicant to attend for oral questioning. It is submitted that such a process is "evidence gathering" rather than "information gathering".

212. The Court accepts that a clear statutory mandate for the making of such an Order is required in this respect also. If there is any doubt about the matter, then the Applicant is entitled to the benefit of the same strict approach by way of analogy to that which the Courts adopt when construing statutes with penal consequences.

213. Should I be wrong in relation to the jurisdiction to compel such an Affidavit, I find that the concept of fair procedures does apply when a person is compelled to commit himself to a sworn Affidavit in the absence of knowledge of the body of detailed evidence against him. An Affidavit made in such circumstances forms part of the evidence before the Tribunal and can readily be utilised at any public hearing, not least to cross-examine the Applicant. Without knowing the full details of the case made against him, the Applicant would be seriously disadvantaged at any public hearing had he sworn an Affidavit at an earlier stage which was significantly deficient in any respect for reasons of which he might not have been aware at the time.

214. In this context, the supposed demarcation line between preliminary private investigation work and full public hearings is obviously breached.

215. I would therefore quash this Order also.

Dated this 2nd day of July 1999.