High Court of Ireland Decisions

1. On the 19th/20th April 2000 an incident occurred at Toneymore, Abbeylara, Co. Longford involving a 27 year old man called John Carthy. (Mr. Carthy). The incident came to an end with Mr. Carthy being shot dead by the Garda.

2. Chief Superintendent Adrian Culligan was appointed by the Commissioner of the Garda to investigate the circumstances surrounding the events which resulted in Mr. Carthy’s death. In particular the Chief Superintendent was asked to address:

3. Chief Superintendent Culligan commenced his investigation on the 21st April 2000 and submitted his report to the Commissioner on the 28th June 2000.

4. The Commissioner in turn reported to the Minister for Justice, Equality and Law Reform.

5. The Minister placed the report before the National Parliament which in turn referred it to a Joint Committee of both Houses. That Committee considered the report and submitted it to both Houses in the form of an interim report. This meant that the report could be published and it was.

6. Submissions and observations were invited in respect of that report and a total of 21 submissions were received by the Joint Committee. On the 8th March 2001 the Joint Committee purported to establish a sub-committee and it is that reference and the work of the sub-committee so formed that is the subject matter of this Judicial Review.

7. The work of the sub-committee has been postponed pending the determination of these proceedings.

8. All of the Applicants are members of the Garda Siochana who have been the subject of a direction to attend before the sub-committee in order to give evidence to it. Some were directly involved in the incident; others were not. Included amongst the applicants are the officers who shot Mr. Carthy.

9. All of the Respondents with the exception of the last two are members of a Parliamentary Joint Committee with the rather cumbersome title of “Oireachtas Joint Committee on Justice, Equality, Defence and Womens’ Rights” (hereinafter “the Joint Committee”).

10. The first seven Respondents are the members of the sub-committee which was formed by the Joint Committee and which is known as the “sub-committee on the Abbeylara incident.” (Hereinafter “the sub-committee”).

11. There is one further Parliamentary Committee which will be referred to frequently in the course of this Judgment which it is convenient to identify at this stage. This is a sub-committee appointed jointly by the Committee on Procedure and Privileges of each House pursuant to the provisions of the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunites of Witnesses) Act 1997. For ease of reference we shall refer to this sub-committee throughout this Judgment as “the Compellability Committee.”

12. On the 25th October 2000 the Dail resolved as follows:

13. The Applicants call attention to the fact that the resolution of the Dail did no more than refer the Commissioner’s Report to the Joint Committee. It did so in accordance with Paragraph (2) of the Orders of Reference of the Joint Committee. Paragraph 2 of the Dail Orders of Reference provides as follows:

14. It is clear that when referring the Report to the Joint Committee the Dail did so by reference to paragraph (2) in its entirety of the Orders of Reference.

15. On the 25th October 2000 the Senate resolved as follows:

16. Paragraph 1(a)(v) of the Senate Orders of Reference reads as follows:

17. There is not the slightest suggestion that the Commissioner’s report into the death of Mr. Carthy has anything to do with womens’ rights generally or otherwise. Quite clearly the Senate in purporting to refer the report to the Joint Committee erred in respect of its own Orders of Reference by apparently failing to take into account that they had in turn been amended by an Order of the Senate of the 30th April 1998 whereby an additionalsub-paragraph had been inserted into paragraph 1 thereof. The effect of this was that the original sub-paragraph (v) became sub-paragraph (vi) which reads:

18. The Respondents say that the Senate intended to make the reference to the Joint Committee pursuant to paragraph 1(a)(vi) but it clearly did not do so.

19. Both Houses are entitled, pursuant to their respective standing orders, to appoint select committees. The Dail set up a fourteen member committee known as the Select Committee on Justice, Equality and Women’s Rights. The Senate did likewise save that in its case membership of the select committee was confined to five Senators. Both Dail and Senate then resolved that the select committee of each House should be joined together so as to form the Joint Committee. The relevant extracts from the respective orders of reference governing the Joint Committee have already been set forth in this Judgment.

20. The Joint Committee submitted the Commissioner’s report to both Houses in the form of an interim report. Thus the report came to be published. Submissions and observations were invited on the report and a total of 21 such submissions were received by the Joint Committee.

21. On the 8th March 2001 the Joint Committee purported to establish a sub-committee to be known as the Sub-Committee on the Abbeylara Incident.

22. Before considering the powers that were purportedly conferred on the sub-committee it is necessary to see what the entitlements of the Joint Committee itself were. In setting up the Joint Committee the Dail expressly provided that it “shall have the powers defined in Standing Order 78(1) to (9)”. The Senate directed that the Joint Committee “ shall have the powers defined in Standing Order 62(a)(1) to (9)”. Fortunately the powers conferred under the Standing Orders from each House are identical and so it is not necessary to set them forth in duplicate. Neither is it necessary to set forth all of the powers since some of them have no relevance to the matter in suit. The relevant powers will be set out in this Judgment at the appropriate time.

23. On the 8th March 2001 the Joint Committee set up the sub-committee. The Order reads as follows:

24. It is clear from the terms of this Order and in particular sub-paragraphs (d) and (e) thereof that the sub-committee was invested with both functions and powers which were less extensive than those of the Joint Committee.

25. The functions conferred on the sub-committee were by virtue of paragraph (d) of the Order establishing it confined to its considering:

26. This is so even though the original reference to the Joint Committee by the Senate did so by reference to neither of those matters.

27. The powers conferred on the sub-committee having regard to the terms of sub-paragraph (e) of the Order establishing it were limited as follows: They were

28. The above specifies both the functions and the powers of the sub-committee when the next event occurred. It happened on the 4th April 2001.

29. On the 4th April 2001 a resolution was passed by both Houses of the National Parliament. It reads as follows:

30. The reasons for the passage of these resolutions will become clear when the court comes to consider the provisions of the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act 1997 which will henceforth be referred to as “the Act”. It is sufficient for present purposes to say that the powers of committees to obtain evidence as conferred by that Act may only be utilised when a resolution of this type is passed. (See Section 2 of the Act).

31. On the 10th April 2001 the Joint Committee purported to amend its Order of the 8th March 2001 setting up the sub-committee. On the 10th April a motion was passed by the Joint Committee amending its Order in paragraph 1(a) by the deletion of the words

32. Although this amendment was brought about on the 10th April 2001 it seems to have gone missing thereafter. It did not appear on a number of subsequent occasions when orders of reference of the sub-committee were produced.

33. On this day (Spy Wednesday) the sub-committee made an application to the Compellability Committee. It did so with a view to obtaining the consent of that committee which would trigger an entitlement to utilise the provisions of the Act. The application was purportedly accompanied by a copy of the terms of reference of thesub-committee. In fact the document which was submitted mis-stated the terms of reference. It did not reproduce the amendment which was made on the 10th April. Instead it alleged that the 10th April amendment read as follows:

34. No such amendment had been made on the 10th April. However, such an amendment was made the following day the 12th April. It remains a mystery as to how the Compellability Committee had represented to it on the 11th April 2001 that the sub-committee had powers which it did not gain until the following day.

35. In the document submitted to the Compellability Committee the sub-committee asked for the necessary consent under the Act for

36. This is the first occasion on which the sub-committee described its functions as requiring it to “enquire into the Abbeylara incident.”

37. The court will return later to what happened before the Compellability Committee but before doing so it must complete the narrative concerning further amendments made to the powers of the sub-committee.

38. On the 12th April 2001 the Joint Committee amended again the terms of reference of the sub-committee. It did so by including the following:

39. On the same day letters were dispatched to prospective witnesses purporting to exercise the power to compel their attendance pursuant to the provisions of the 1997 Act. These letters made it clear that the enquiry was due to commence on Low Tuesday 24th April 2001. It did so. In due course the court will turn to what happened on that and subsequent days.

40. Two days later on the 26th April 2001 a further purported amendment to the sub-committee’s order of reference was brought about.

41. On this day the Joint Committee ordered

42. This amendment was made two days after the formal hearings began, long after compellability powers were given and even further after the two Houses had set out the terms of reference.

43. The court must now turn to the events of the 11th April 2001 when the sub-committee made application to the Compellability Committee. It has already pointed out the inaccuracy in the information placed before that committee. In order to understand what occurred on the 11th April it is however necessary to consider the terms of the 1997 Act.

44. The long title of this Act makes it clear that its two principal purposes are to provide committees of the Houses of the Oireachtas with the ability to compel the attendance of witnesses and the provision of privilege and immunities to such witnesses.

45. Section 2 of the Act makes it clear that, inter alia, the compellability provisions of the Act can only apply to a committee of the type in suit here in circumstances where both Houses of the Oireachtas have conferred a power on such sub-committee to send for persons, papers and records. Once this necessary precondition is satisfied then a sub-committee of the type in suit can make an application to the Compellability Committee provided for under the Act for its consent to the exercise by such sub-committee of the powers which are set forth in Section 3(1) of the Act. These powers include an ability to direct in writing any person whoseevidence is required to attend before the sub-committee on a date and at a time and place specified in the direction, there to give evidence and produce any document in his or her possession or power specified in the direction. The sub-committee can also direct a person to produce or send the committee a document or make discovery on oath of any documents that are or have been in that person’s possession or power relating to any matter relevant to the proceedings of the sub-committee.

46. Under sub-section 7 of Section 3 it is provided that where a person disobeys a direction of the sub-committee the High Court may, on application to it in a summary manner in that behalf by the chairman of the committee concerned on behalf of the committee, order the person to comply with the direction and make such other Order as it considers necessary and just to enable the direction to have full effect. A person who failed to comply with an Order made by the High Court under thissub-section could of course be dealt with under the contempt jurisdiction of the Court.

47. In addition, a person who fails to comply with a direction of a sub-committee is also (pursuant to the provisions of sub-section 8) guilty of an offence. The offence carries a penalty on summary conviction of a fine not exceeding £1,500 or imprisonment for a term not exceeding twelve months or both such penalties. In the case of a conviction on indictment the fine may not exceed £20,000 and the imprisonment can be for a term not exceeding two years or both. The decision as to whether to proceed to the High Court or to the Director of Public Prosecutions is a matter for the committee but there are restrictions placed on both courses being followed together (see Section 16(3)).

48. From this short recital of the statutory provisions it is clear that a failure to comply with the statutory directions of a sub-committee carries serious implications for the subject of such directions

49. It is clear from the wording of Section 3 that a sub-committee of the type in suit must have the consent of the Compellability Committee before it can legitimately issue a direction of the type contemplated in Section 3(1).

50. Section 3(9) provides as follows:

51. With this short summary of the relevant statutory provisions it is now possible to turn to what occurred on the 11th April 2001.

52. On the 11th April 2001 the sub-committee made application to the Compellability Committee for the necessary consent under the provisions of the 1997 Act so that it could issue statutory directions to proposed witnesses pursuant to Section 3 of that Act.

53. It made the application to the Compellability Committee pursuant to Rule 14 of the Rules and Guidelines for Committees in relation to the conduct of proceedings which may give rise to findings of fact, or conclusions which could adversely affect or impugn the good name of any person.

54. The sub-committee at paragraph 1.2 of its application to the Compellability Committee set out as a basis for its application the referral of the 25th October 2000 of the report by the Commissioner.

55. At paragraph 1.3 it recites that the sub-committee on the Abbeylara incident was established by the Joint Committee on the 8th March 2001 and there set out the terms of reference. It purported to enclose a copy of those terms of reference. However, as we have already pointed out the enclosure did not conform with the terms of reference as it did not set out the purported amendment of the 10th April 2001 and anticipated an amendment which was not effected until 12th April 2001.

56. Rule 14 of the Rules and Guidelines for Committees pursuant to which the application was made to the Compellability Committee reads as follows:

57. A variety of criticisms are levelled at what was represented to the Compellability Committee by the Sub-Committee but it is not appropriate to deal with them at this part of the Judgment.

58. The Compellability Committee held a meeting on the night of the 11th April and considered the request from the Sub-Committee. The meeting apparently commenced at 7.50 p.m. and ended at 8.05 p.m. During that fifteen minute period it considered requests from twosub-committees one of which is the sub-committee in suit.

59. It is common case that no consent in writing was forthcoming from the Compellability Committee that night nor indeed for many days thereafter. It was not until the 30th April 2001 that Mr. Seamus Brennan, the Chairman of the Compellability Committee executed a document purporting to be a consent for the purposes of Section 3 of the Act. The document reads as follows:

60. The applicants contend that as this consent was not in written form on the 12th April 2001 the sub-committee was not competent to issue the directions which it did. Furthermore they say that when ultimately the consent did appear on the 30th April it did not comply with the provisions of Section 9(b) of the Act.

61. Hearings commenced before the Committee on the 24th April 2001. In due course it may be necessary to consider some of the procedures which were adopted by the Committee but for the moment the court contents itself with dealing with applications which were made to the sub-committee touching upon the matters that it has had to deal with in this Judgment so far.

62. The sub-committee commenced its hearings on the 24th April 2001. On the following day it visited Abbeylara. On the 26th April as is clear a further amendment was made to the Order establishing the sub-committee. On the afternoon of the following day Mr. RogersS.C. on behalf of the applicants raised questions as to the lawfulness of this amendment. He sought information concerning it and made submissions on the basis of the information which he then had. He also sought further information concerning the steps which have been outlined in the Judgment to date. In this regard it ought to be made clear that the full picture concerning the various amendments and the various steps taken was not merely not disclosed to Mr. Rogers when he made the application before the committee on the 27th April but were not disclosed to this Court until the third day of the hearing when Supplemental Affidavit evidence was filed.

63. Mr. Rogers concluded his submissions and requests for information as follows:

64. The sub-committee suspended its sitting for fifteen minutes. At 3.50 p.m. the sub-committee recommenced and the Chairman addressed the submissions made earlier in the afternoon as follows:

65. This did not satisfy Mr. Rogers. He pointed out that the issues that he raised were fundamental to the jurisdiction of the committee and asked for the production of the Order by way of amendment there and then that afternoon. He pointed out that grievous questions about the propriety of the steps that had been taken had been raised and went on to say that although the sub-committee might have the support of the Oireachtas his clients had a deepwant of confidence in the independence of the committee having regard to the remarks made earlier that afternoon by its Chairman. Despite further submissions the committee indicated that it intended to continue to sit and then Mr. Rogers applied for an adjournment. Further exchanges took place which it is not necessary to deal with now.

66. As already noted the full and true picture concerning the various amendments that had been made and steps taken did not emerge until this hearing was under way for a number of days. Only then were the now admitted imperfections, lacunae and errors made apparent to the applicants and the Court.

67. On the 21st May 2001 this Court (Butler J.) gave leave to the applicants to seek Judicial Review in respect of the working of the sub-committee. The applicants were given leave to seek the following reliefs:

68. In the course of submissions made to the Court counsel on behalf of the committee made it quite clear that the committee sees itself as having an adjudicative function and that it is entitled to make findings in respect of the evidence tendered before it. These findings he said could include (if the committee thought it appropriate) a finding of unlawful killing in respect of Mr. Carthy at the hands of a particular police officer or officers. That enquiry is taking place in circumstances where the applicants have been compelled to attend and give evidence. A failure to comply with the directions of the sub-committee in that regard can, pursuant to the 1997 legislation, give rise to the consequences which have already been outlined in this judgment.

69. It cannot be gainsaid that if the sub-committee were to reach conclusions of the type just outlined it would have the most profound consequences for the good name, reputation and livelihood of serving police officers such as the applicants.

70. Does an examination of the applicants’ complaints (other than those the subject of the concession) constitute a breach of the separation of powers?

71. The first place where an examination of this question must begin is the Constitution itself. It is there that the separation of powers has its base.

72. Article 34.3 provides that the High Court shall be “invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal.”

73. Notwithstanding the apparently wide remit given to the Court by that Article it is nonetheless subject to restrictions which are contained in the Constitution itself. For example, the Court has no jurisdiction over the President for the exercise and performance of the powers and functions of that office or for any act done or purporting to be done by the President in the exercise and performance of such powers and functions (see Article 13.8). This is a clear example of the Constitution placing an area of enquiry outside the jurisdiction of this Court.

74. Has it done so in relation to the legislature? The answer is clearly in the affirmative in certain respects. For example Article 22.2.5 º makes the decision of a committee of privileges on whether a Bill is or is not a money Bill final and conclusive. Such a decision cannot be questioned in the courts.

75. This is interesting because it is a specific example of one piece of Parliamentary procedure which is put beyond challenge by the Constitution itself in clear and simple terms. One might think that if it was the intention of the Constitution that questions of the type which have been agitated in these proceedings ought to be beyond the purview of this Court it would have done so in equally simple and straightforward terms. But it did not.

76. Immunity from the jurisdiction of this court can also be found by specific reference to other Constitutional provisions contained within Article 15 which deals with the National Parliament. For example Article 15.13 provides that members of each House shall not, inrespect of any utterance in either House, be amenable to any Court or any authority other than the House itself. Article 15.12 provides that all official reports and publications of either House and utterances made in either House wherever published shall be privileged.

77. Thus it can be seen that where the constitution wishes to delimit the powers conferred on this Court pursuant to Article 34 it has done so in a specific and precise fashion.

78. None of the respondents have been able to point to any Constitutional Article which specifically delimits the entitlement to this Court to intervene in the workings of the Oireachtas when it is not exercising legislative power. Rather they have, by reliance upon the provisions of Article 15.10, suggested that for the Court to do so would be an infringement of that Article.

79. Article 15.10 reads

80. The question arises as to whether this provision can be relied upon successfully to exclude the jurisdiction of this Court to review the conduct of a Parliamentary committee in its dealings with a citizen who is compelled to participate in its workings in circumstances where his Constitutional rights to good name, reputation or fair procedures may be imperilled. In orderto answer this it is necessary to see how the Courts have addressed the issue of the separation of powers with particular reference to Article 15.10.

81. Thus the courts have refused to interfere with the legislative process by declining to enjoin the passage of bills through Parliament (see the Judgment of Carroll J. in Roche v Ireland (Unreported, High Court, 17th June, 1983) and the Supreme Court in Finn v Minister for the Environment [1983]I.R. 154). Likewise the courts have refused to become involved in a dispute between a member of the National Parliament and the Ceann Comhairle. ( See O’Malley v Ceann Comhairle [1997] 1 I.R.427) In that case this Court and the Supreme Court declined to permit Judicial Review to challenge a decision of the Ceann Comhairle in respect of Standing Order 33 of the Dail.

82. These decisions all deal with matters internal to the workings of Parliament in carrying out its legislative power or alternatively in dealing with its own members.

83. Is the situation different in circumstances where the courts are asked to intervene in respect of the Oireachtas when not exercising legislative power and when a non member is obliged to become involved in the exercise of such power in a manner where he apprehends that rights guaranteed to him under the Constitution may be in peril?

84. Any examination of the case law on this topic must begin with Re Haughey [1971] I.R. 217. That case raised a large number of issues including questions such as whether the relevant Parliamentary committee had investigated matters outside its terms of reference; whether it had power to administer oaths; whether the Standing Orders of the Dail had been duly made pursuant to Article 15.10 of the Constitution and whether the rules of Constitutional justice had been complied with. Over and above those was the question of the constitutionality of the particular legislative provision namely the Committee of Public Accounts of Dail Eireann (Privilege and Procedure) Act, 1970.

85. The case is perhaps best remembered for the determination by the court as to the unconstitutionality of the relevant statutory provision and the assertion of the rights which a witness before such a committee ought to have as a matter of constitutional justice and fair procedures. But an examination of the Judgments of the Supreme Court as a whole makes it clear that that Court found no difficulty in doing precisely what it is said is impermissible for this Court to do.

86. The judgment of O’Dalaigh C.J., considered six points which were made by Counsel on behalf of Mr. Haughey. The sixth point was that which dealt with fairness of procedures. However points 1, 2, 4 and 5 dealt with other matters.

87. The first point taken was an objection to the Parliamentary Committee’s terms of reference as referred to an examination of expenditure of monies of the Irish Red Cross Society. O’Dalaigh C. J., conducted a meticulous examination of that argument, Inter alia he considered the terms of the Order of Dail Eireann of the 1st December 1970 and what it contemplated. He carried out an examination of the particular standing order under which the Select Committee was operating and made the finding that“the examination of the expenditure of monies belonging to the Irish Red Cross Society, not being monies granted by the Dail to meet public expenditure, is not a matter which, as such, falls within the jurisdiction of the Committee of Public Accounts.”

88. The second point raised by Mr. Haughey constituted an objection to any examination into the expenditure of the grant-in-aid even though conducted within the terms of Standing Order 127. The ground of objection advanced was that the Standing Orders relative to public business had not been adopted as the Standing Orders of the House of Representatives, called Dail Eireann established under the Constitution of Ireland, but were the Standing Orders of the former Dail Eireann i.e. the Chamber of Deputies, called Dail Eireann, established under the Constitution of Saorst át Eireann. This argument was examined by O’Dalaigh C. J. and resulted in a finding that the action of Dail Eireann taken on the 12th January, 1938, was susceptible of no other construction than that the new House was “making” its standing orders within the meaning and intention of Article 15.

89. The fourth objection raised by Mr. Haughey was that the certificate under the hand of the Chairman of the relevant committee was not made with sufficient particularity. That question was also examined in detail and a conclusion in favour of Mr. Haughey reached upon it. The certificate in question was one which was sent forward to the High Court certifying that Mr. Haughey had been called to attend and had refused to answer questions. The argument that was made was that that was insufficient because the High Court had to know what the questions were and whether they were relevant to the terms of reference under which the committee was operating.O’Dalaigh C. J. said at p. 260

90. The fifth point dealt with by O’Dalaigh C. J. concerned an objection to the validity of the committee’s certificate on the grounds that it should have been made by the unanimous decision of all of the members of the committee. This question was also adjudicated upon by reference to the standing orders applicable to it.

91. It is clear from the foregoing that the Supreme Court engaged upon an examination of a resolution of the Dail, interpreted it and cross referred to the powers granted to the Committee of Public Accounts under Standing Order 127. Having completed that process it identified the precise issue which was within the jurisdiction of the Public Accounts Committee. The Supreme Court then went on to consider the validity of the Standing Order on the basis that it had never been adopted. The validity of the certificate involved a consideration of the vires of the committee vis a viz its terms of reference. These questions were considered by the Supreme Court in the context of arguments made by reference to an assertion that the committee in question had no jurisdiction to proceed with the enquiry and the respondent was not acompellable witness before it. (See page 233 of the report).

92. These are precisely the type of issues which the Court is invited to examine in this case. The Judgment of the Supreme Court in Re Haughey is supportive of the notion that persons can only be compelled to attend and take part in Parliamentary enquiries, be subjected to cross examination and the possibility of adverse findings, if and only if the committee in question is acting within jurisdiction.

93. It follows that the Court must be able to determine the jurisdiction in question and the procedures which were followed. Submissions made to the effect that the Court does not have any jurisdiction to entertain these questions appear to be in the teeth of what the Supreme Court actually did and decided in re Haughey.

94. Whatever about the way in which Parliament regulates its own members a citizen cannot be subjected to a Parliamentary process unless it is lawful, within jurisdiction and is fair. The adjudication of whether those criteria had been met is a matter for this Court and contrary inparticular to the submissions made by Deputy Shatter is not a matter to be determined by Parliament or by any Committee thereof.

95. At page 264 of his Judgment O’Dalaigh C. J. said “ In proceedings before any tribunal where a party to the proceedings is on risk of having his good name, or his person or property, or any of his personal rights jeopardised, the proceedings may be correctly classed as proceedings which may affect his rights and in compliance with the Constitution the State, either by itsenactments or through the courts, must outlaw any procedures which will restrict or prevent the party concerned from vindicating these rights.”

96. Whilst that observation from O’Dalaigh C.J. is made in the context of considering the sixth complaint of Mr. Haughey dealing with fair procedures it nonetheless appears to the court to have a relevance when a citizen such as the one described there contends that the body which is purporting to examine him under subpoena has no power to do so or is behaving unlawfully.

97. The fact that this Court regards itself as not merely competent but obliged to entertain and consider the complaints made here is not in any way disrespectful either to the notion of the separation of powers or indeed to the respect which the Judicial organ of Government accords to the other organs of Government established under Article 6 of the Constitution.

98. In his Judgment at page 610 of the report McCarthy J. said “ The Parliamentary resolution requires due respect from the Judicial organ of Government; whilst the range of the remit contained in the resolution has been alleged to trench upon the Judicial power, there has been no suggestion of any impropriety or abuse of the Parliamentary power. If an allegation of impropriety or abuse of power were to be made, then, both as to ascertaining the facts and enforcing Constitutional rights, to echo the words ofO’Dalaigh C.J. in the State (Quinn) v Ryan [1965] I.R. 70 at page 122; “The court’s powers in this regard are as ample as the defence of the Constitution requires.””

99. The court mentions that particular quotation so as to demonstrate the untenable nature of the argument made by Mr. Shatter to the effect that a Dail resolution is incapable of being challenged in any circumstances in this court. There clearly is an entitlement to challenge in the case of impropriety or abuse of power. It is accepted that neither of those circumstances apply here.

100. What is sought to be done here is much less intrusive. The Court is merely asked to interpret the Parliamentary resolutions and to examine steps taken and resolutions passed subsequent and subordinate to the passage of such resolutions. Such an approach is completely consistent with what was done in re Haughey.

101. The third case to which the court wishes to refer is that of Haughey v Moriarty [1999] 3 I.R. 1. Lest it might be thought that the observations of McCarthy J. which have just been cited were peculiar to him we draw attention to what was said by Hamilton C.J. in Haughey v Moriarty at pages 33/34. He cites with approval the passage which we have reproduced in full and he goes on to say “The court is satisfied that while the Act of 1921, as amended, does not empower the establishment of a tribunal of enquiry such as was established in this case, that the Houses of the Oireachtas had and have the inherent jurisdiction to resolve that it is expedient that a tribunal be established to enquire into what they consider to be urgent matters of public importance. In pursuance of such a resolution the Taoiseach had jurisdiction to appoint a Tribunal for such purpose and to provide in the instrument or order appointing such tribunal that the Act of 1921, as amended, should apply.

102. If the powers are not absolute who other than this court can be the arbiter of questions touching upon their legality?

103. The court is of the view that neither the plain wording of the Constitution nor the case law to which it has referred are supportive of the notion that the jurisdiction of the Court is excluded from investigating the matters in respect of which complaint is made by the applicants in the circumstances in which they find themselves. It does not appear to us that the Court would be guilty of any impropriety in entertaining their complaints.

104. Having found no support for the respondents’ plea of non justiciability in the Constitution itself or in the case law which we have just quoted, the court will now examine the views of some academic commentators.

105. In his work entitled “ Separation of Powers in the Irish Constitution” published in 1997 Professor David Gwynn Morgan at chapter 11 deals with the question of the court’s intervention in the functioning of the Oireachtas and the passing of legislation.

106. He has this to say at pages 222/223

107. The learned author then proceeds to consider the case law involving the Oireachtas when not exercising legislative power. The primary case considered is in re Haughey . He also considers an application for judicial review which did not proceed beyond the leave stage and consequently is not reported. Thirdly, he considers Attorney General v Hamilton (no. 2) [1993] 3 I.R. 227 He expresses his conclusions as follows at page 224:

108. Thus the leading text book on the topic of separation of powers expresses a view which is squarely against the proposition put by the respondents as to the court’s alleged inability to intervene.

109. The other text book on the Constution namely the third edition of Professor Kelly’s work considers at page 138 the statement from O’Dalaigh J. in the Wireless Dealers Association case which we have already quoted. The authors then go on

110. Both of these works therefore appear to accept that when the Oireachtas is not exercising legislative power decisions made by committees are justiciable in circumstances where a person external to the Houses is compelled to attend and made subject to such decisions. The court’s power is not confined merely to a consideration of fairness of procedures but extends to other Constitutional rights, rulings, issues of vires and entitlement.

111. We turn now to consider whether any assistance may be gleaned from the jurisprudence of other jurisdictions. In Watkins v United States 354 US 178 the petitioner had been summoned to testify before a sub-committee of the House of Representatives Committee on Un- American Activities. He testified freely about his own activities and associations but refused to answer questions as to whether he had known certain other persons to have been members of the Communist Party. He based that refusal on the ground that those questions were outside of the proper scope of the committee’s activities and not relevant to its work. No clear understanding of the “question under enquiry” could be gleaned from the resolution authorising the full committee, the legislative history thereof, the committee’s practices thereunder, the action authorising the sub-committee, the statement of the Chairman at the opening of the hearings or his statement in response to the petitioner’s protest. The United States Supreme Court held that the petitioner was not accorded a fair opportunity to determine whether he was within his rights in refusing to answer and the conviction which had been levied against him was invalid under the due process clause of the Fifth Amendment.

112. In the course of his Judgment Warren C.J. sets out the history of Parliamentary enquiries in the United Kingdom and the various skirmishes which took place between the Judiciary and Parliament involving on one occasion the imprisonment of Chief Justice Pemberton in Newgate Prison. He then goes on to deal with the history of contempt of the legislature in the United States. Turning to the particular case before the court he said at page 201“ An essential premise in this situation is that the House or Senate shall have instructed the committee members on what they are to do with the power delegated to them. It is the responsibility of the Congress, in the first instance, to ensure that compulsory process is used only in furtherance of a legislative purpose. That requires that the instructions to an investigating committee spell out that group’s jurisdiction and purpose with sufficient particularity. Those instructions are embodied in the authorizing resolution. That document is the committee’s charter. Broadly drafted and loosely worded, however, such resolutions can leave tremendous latitude to the discretion of the investigator. The more vague the committee’s charter is, the greater becomes the possibility that the committee’s specific actions are not in conformity with the will of the parent House of Congress.”

113. The Supreme Court then went on to analyse the relevant resolution and concluded that it did not comply with the standard prescribed. This clearly involved an examination of issues such as this Court is asked to deal with in the present case.

114. In his concurring Judgment in the Watkins case Frankfurter J. points out the history of the power of Congress to punish for contempt of its authority. He records that at the time of the Watkins Judgment that matter was dealt with by legislation under which the Federal Judiciary was appointed the affirmative agency for enforcing the authority that underlines the Congressional power to punish for contempt. This is not dissimilar to the position which obtains under the 1997 Act where this court may be called upon to enforce a direction of the sub-committee given under that Act and if necessary to punish for any failure to comply with such an Order. In addition the courts may become involved should the committee proceed to have an offence created under Section 3(8) of the Act made the subject of a prosecution.

115. Frankfurter J. said at page 216 of the report “ By thus making the federal judiciary the affirmative agency for enforcing the authority that underlies the congressional power to punish for contempt, Congress necessarily brings into play the specific provisions of the Constitution relating to the prosecution of offences and those implied restrictions under which courts function.”

116. This case supports the view that the court is justified in entertaining the applicants’ contentions.

117. In a later case of Gojack v United States 384 US 702 the United States Supreme Court had to deal with a petitioner who refused to answer questions concerning his affiliation with the Communist Party, the affiliation of others and his connection with the peace crusade before a sub-committee of the House Committee on Un-American Activities . He challenged the jurisdiction of the committee and the sub-committee, the authorisation of each and the Constitutionality of the enquiry. He was indicted and convicted for contempt of Congress. His conviction was affirmed by the Court of Appeal but reversed by the Supreme Court. In the course of his Judgment Fortas J. at p. 716 said, in relation to the statutory provision which required that a witness to be found guilty of contempt must have been summoned as a witness by the authority of either House of Congress to give testimony upon any matter under enquiry before either House that“ the legislative history (of that statutory provision) makes plain that a clear chain of authority from the House to the questioning body is an essential element of the offence. If the contempt occurs before a sub-committee, the line of authority from the House to the committee and then to the sub-committee must plainly and explicitly appear, and it must appear in the terms of a delegation with respect to a particular, specific subject matter.”

118. Whilst that case was of course decided in the context of a conviction for a criminal offence nonetheless it demonstrates the court’s willingness to investigate an allegation as to the vires of the sub-committee of the House.

119. These decisions from the United States, where Congressional enquiries are a matter of daily routine, are supportive of the notion that when citizens who are not members of Congress are sought to be embroiled in investigations being conducted by it, the court is entitled to examine complaints of the type in suit here.

120. These two cases (along with some others) are considered by Professor Tribe in the Third Edition of his work on American Constitutional Law at pages 793 - 4. He says this

121. This statement by Professor Tribe suggests that the United States Federal Courts have no less ‘compunction’ pace Professor Gwynn Morgan than the Irish courts about exercising jurisdiction to enforce the Constitution or other rules in regard to affairs of the legislature at least in circumstances when it is not exercising legislative power.

122. Before expressing final conclusions in respect of this aspect of the matter the court must of course refer to the views of Geoghegan J. in Haughey v Moriarty [1999] 3 I.R. 1 where in the course of his Judgment in the High Court he ruled out all evidence directed to showing that there was some irregularity in the way in which the Senate had been convened for the purposes of the resolution which was passed. He pointed out that originally the Plaintiffs alleged that neither the Dail nor the Senate were properly convened. At a later stage the claim that the Dail was not properly convened was abandoned but the claim in respect of the Senate was persisted in. He said at page 16

123. In the next paragraph of the Judgment the Judge said

124. The Judge then went on to set out the principles which he would apply in interpreting the terms of reference.

125. It seems to the court that in that case the Judge was treating as being truly internal to the workings of Parliament matters touching upon the way in which either House was convened but was then prepared to examine and test for vires the resolution passed. But in this case we are not being asked to investigate nor is any complaint made of any irregularity of the type mooted in Haughey v Moriarty . The review which we are asked to conduct here goes back no further in time than the 25th October 2000 being the day upon which both Houses passed the resolutions. We do not therefore see that there is anything inconsistent between what we are asked to do here and what Geoghegan J. was clearly prepared to do in the case of Haughey v Moriarty .

126. Finally we should deal with the suggestion that what is sought to be done here in some way runs counter to the decision of the Supreme Court in Attorney General v Hamilton (No. 2 ) [1993] 3 I.R. 227 That case was concerned with the provisions of Article 15.12 and 15.13 of the Constitution in particular. The decision of Finlay C.J. sets out the way in which members of either House could not be made liable. The applicants in the course of their submissions accepted the correctness of that analysis and did not seek to depart from it. But they say that nothing that is sought in this case contravenes the non amenability which is provided for in the relevant Constitutional Articles. The court is of the view that they are correct in that assertion. The applicants must and do acknowledge the non amenability provided for but they say that that is not a justification for erecting the much larger edifice of nonjusticiability.

127. On the question of justiciability therefore the court’s conclusions are as follows:

128. The court holds that all of the complaints made by the applicants in these proceedings are justiciable and may be the subject of examination by the court. Whether these claims are well founded or not is a matter with which it will next concern itself.

129. The court will first examine the complaints in respect of which its jurisdiction to do so is conceded.

130. It was the direction of the 12th April issued by the sub-committee to the applicants that caused them to attend before that sub-committee. In order to issue such directions with binding force it was necessary for the sub-committee to obtain the consent of the compellability committee. It purported to do so on the 11th April 2001. A resolution was passed by the compellability committee that night granting consent but it is common case that it was not until the 30th April that a document purporting to be such consent was signed by the Chairman of the compellability committee.

131. The applicants contend that for a variety of reasons there was no valid consent in existence when the directions were issued to the applicants dated 12th April 2001.

132. The argument they make is that the consent contemplated under the provisions of Section 3 is given a statutory definition which is set forth at Section 3(9)(a) of the Act . That sub-section provides that a consent of the appropriate sub-committee shall be in writing and the document containing it shall be signed by the Chairman of the sub-committee or by another member of the sub-committee duly authorised in that behalf by such Chairman.

133. The court is satisfied that by so providing the legislature made it clear that a consent for the purpose of the Act cannot be achieved by the mere passage of a resolution by the Compellability Committee but must be in written form in accordance with the terms of Section 3(9)(a). This is a specific statutory definition of what constitutes a consent for the purposes of the Act. It would have been open to the legislature to provide otherwise. For example it might have prescribed the passage of a resolution as enough and then go on to provide a method of proof of the passage of such resolution by reference to document in writing to be produced under the hand of the Chairman. That is a concept well known in company law where the passage of a resolution by a company is proved by an appropriately authenticated minute. But that is not what the legislature chose to do here. It specifically defines a consent in mandatory terms as one which “shall be in writing.” Despite some infelicity in the sub-section when it goes on to speak of the “document containing it” we do not think that the court would be justified in interpreting a mandatory provision requiring that the consent be in writing as meaning the precise opposite. The only form of consent which satisfies the Act is one in writing, duly authenticated as prescribed and not otherwise.

134. The respondents point to the fact that the statute does not require that the consent exist prior to the issue of the direction by the sub-committee. Whilst it is true that the word “prior” is not contained in the statutory provisions it has to be remembered that under Section 3(1) the sub-committee could only give directions directing the attendance of persons if it had the consent of the Compellability Committee. As such a consent has the special statutory meaning mandated under Section 3(9)(a) as one which “ shall be in writing” it follows that in the absence of a consent which satisfies that statutory provision there was no consent extant at the time that the directions were issued on the 12th April 2001. It follows therefore that there was no authority vested in the sub-committee to issue these directions.

135. It seems to the court that there were a number of other infirmities identified by the applicants which afflicted the directions given by the sub-committee.

136. We turn to consider the terms of the consent as it ultimately emerged on the 30th April. We have already reproduced it in this Judgment. Section 3 (9)(b) of the Act requires that the consent shall relate to a specified committee and specified functions of that committee and may relate, as may be specified in the consent, to one or more specified directions or classes of directions, or all directions, in relation to a specified person or matter or persons or matters generally and shall be subject to such restrictions, limitations or other conditions (if any) as may be specified in the consent.

137. In the present case it is to be noted that there is no reference to the functions of the sub-committee. That is a mandatory requirement of the sub-section and a failure to refer to the specified functions of the sub-committee means that the consent as it emerged on the 30th April 2001 was not in compliance with the statutory provisions. Given the serious consequences which flow in respect of a person to whom a direction such as the ones in suit are given these failures to comply with statutory provisions cannot be treated lightly or overlooked.

138. There is a further flaw which is attendant upon this whole procedure. When the application was made to the Compellability Committee it was misrepresented to it by what was enclosed in the documents sent forward that certain powers had been given to it which had not in fact been given at all and were not until the following day. In addition there was a failure to comply with the requirements of Rule 14 of the Rules and Guidelines for Committees which sets out with particularity the information which must be placed before the Compellability Committee. At the time the application was made to the Compellability Committee the sub-committee was not mandated to make findings of fact and of course the order of establishment enclosed did not set out the amendment of the preceding day - 10th April 2001. There was therefore incorrect information placed before the Compellability Committee and it is our view that thisvitiated such consent as was given. The Compellability Committee ought to have directed its mind to granting a consent which would comply with the provisions of sub-section 9(b) and that meant that it would have to specify the functions of the Committee and the other matters set forth in that sub-section. The misrepresentation of the true position even if by accident in our view vitiates the purported consent given.

139. It follows that as there was no valid consent there was no entitlement to issue the directions. The applicants were not obliged to comply with them and the directions of the 12th April 2001 are of no effect.

140. We have already set out the tortuous history of the various resolutions passed pertaining to the sub-committee subsequent to the passage of the resolutions by both Houses on the 25th October 2000. Leaving aside the error in the Senate reference for the moment it is clear that both Houses simply referred the report of the Commissioner to the Joint Committee.

141. On the 8th March 2000 the Joint Committee set up the sub-committee. It was established to consider the report and to consider submissions received thereon and to report to the Joint Committee thereon (see paragraph 1a of the Order).

142. The Order of the 8th March at paragraph 1(d) and (e) contained certain restrictions on the activities of the sub-committee. It was restricted both as to functions and as to powers. The functions had to relate to such public affairs administered by the Department of Justice, Equality and Law Reform and the Department of Defence as the sub-committee might select including bodies under the aegis of those Departments in respect of Government policy and such matters of policy for which the Ministers in charge of those Departments were officially responsible as it might select.

143. The powers were restricted as of then to inter alia taking oral and written evidence and printing and publishing from time to time minutes of such evidence taken in public along with powers to invite and accept written submissions and the other powers which we have already set forth in this Judgment.

144. On the 4th April 2001 the sub-committee was given power to send for persons, papers and records.

145. On the 10th April 2001 the Joint Committee amended its Order of the 8th March in the fashion already set out in this Judgment. The effect of that was to permit the sub-committee to hear evidence in accordance with the provisions of the Act and to report to the Joint Committee thereon and to include its findings and conclusions and recommendations if any.

146. On the following day the sub-committee asked the Compellability Committee for the necessary consent under the Act for the express purpose of permitting the sub-committee to enquire into the Abbeylara incident and related matters and to address possible conflicts of fact, as in the opinion of the sub-committee arose directly or indirectly from oral or documentary evidence.

147. There were then the two subsequent amendments of the 12th and 26th April, the wordings of which are already set forth in this Judgment.

148. It is acknowledged by Counsel who appeared on behalf of the sub-committee that errors did occur in relation to these resolutions but he says we ought to overlook them and adopt the approach of Geoghegan J. in Haughey v Moriarty where at page 16 he said

149. Even if that approach were to be adopted however, does it admit of the sub-committee transforming the remit given to it as being one which entitles it to (to use its own words) “ Enquire into the Abbeylara incident and related matters and address possible conflicts of fact, as in the opinion of the sub-committee, arise directly or indirectly from oral or documentary evidence”? We do not think so.

150. In the first instance the report was merely referred to the Joint Committee. It in turn required the sub-committee to consider the report and submissions received thereon and to report back. That was subject to the limitations which we have already pointed out. True it is that on the 4th April power was given to send for persons, papers and records and on the 10th April power was given to hear evidence. But it was the act of the sub-committee itself that transmuted the instructions given to it into one which required it to“enquire into the Abbeylara incident.”. That was not its task. Its task was to consider and report on the Commissioner’s report on the matter.

151. It is quite clear from a perusal of the transcripts and the video tapes of the hearings that what was being engaged upon was much more extensive than that. It was as the sub-committee itself says an enquiry into the Abbeylara incident. That was a self written brief which went beyond what was asked of the sub-committee. To adapt the words of WarrenC.J. to the instant case - “an essential premise in this situation is that the House or Senate shall have instructed the Committee members of what they are to do with the power delegated to them. That requires that the instructions to an investigating committee spell out that group’s jurisdiction and purpose with sufficient particularity. Those instructions are embodied in the authorising resolution. That document is the committee’s charter.”

152. The sub-committee cannot go beyond the functions and powers conferred upon it. To transform a requirement that it consider and report upon a report into an investigation of the underlying events which gave rise to the report was to go too far. No such authority was given and the sub-committee from 11th April 2001 acted ultra vires the authority given to it. Accordingly the applicants succeed on this part of their case.

153. The major complaint which is made by the applicants under this heading relates to an alleged deferment and limitation on their entitlement to conduct cross examination.

154. Counsel on behalf of the sub-committee identified the central issue which would fall to be determined by it as being an answer to this question “ Was this death avoidable”? He acknowledged that the sub-committee in carrying out its task embarked upon an adjudicative procedure. It quite clearly was prepared to find facts and make findings including if appropriate a finding of unlawful death against a police officer or officers.

155. Had such matters to be determined by a court whether civil or criminal a well tested process and procedure would be embarked upon. It would involve the calling of evidence, the testing of that evidence in cross examination, the ability on the part of the person who was accused to give his own evidence, have it tested and then to make submissions.

156. It is undoubtedly true that the form of enquiry being conducted by the sub-committee was not typical of that which applies in court. It was not an adversarial procedure as such. That of itself of course is not objectionable provided that the procedures followed and the rightsafforded to the person who runs the risk of having such a finding made against him comply with Constitutional justice.

157. The entitlements are set forth succinctly by the Supreme Court in re Haughey . They are:

158. Just as in the Haughey case the principal complaint which is raised here is in respect of the right identified at (b).

159. In the procedures which the sub-committee indicated it would follow it was made clear that all interested parties would be supplied with a list of the witnesses which the sub-committee considered necessary for its deliberation. All interested parties were then invited to indicate to the sub-committee, upon receipt of the list, which, if any of the witnesses it intended to seek to cross examine and the basis upon which it claimed to be entitled to cross examine such witnesses. Any such witness was to be entitled to be told of any persons who might bepermitted to cross examine them and be heard as to why such person ought not to be so permitted.

160. The procedure that was to be followed was that when a witness was called to give evidence he would be sworn. With the leave of the sub-committee he might make an initial statement either verbally or in confirmation of a written statement which would have been provided to the sub-committee in advance of the hearing. Thereafter the witness was to be subject to questioning by the sub-committee. That was to take the form of questions by the Chairman of the sub-committee and such other members of the sub-committee nominated as the Chairman might direct in respect of that witness and then by other members of the sub-committee. Thereafter, and subject to an important proviso to which we will turn in a moment, the witness might be cross examined by, or on behalf of, any of the interested parties in respect of whom leave to cross examine such witness had been granted. Thereafter the Chairman of the sub-committee was entitled to address further questions for the purposes of clarification or elucidation of matters not previously fully dealt with. The important proviso which we have mentioned was that the sub-committee would indicate the parties who would be entitled to cross examine any witness. The sub-committee might decide to arrange for the cross examination of witnesses at a time or times other than immediately following the examination by members of the sub committee. The above recital is taken from the document which set out the procedures which were to be followed.

161. It is quite clear from them that a witness could be cross examined only if leave to do so had been granted by the sub-committee. Not merely that but the sub-committee having indicated the parties who should be entitled to cross examine any witness “ may decide to arrange for the cross examination of witnesses at a time or times other than immediately following the examination by members of the sub-committee.” That of course is a departure from the norm where cross examination follows immediately upon direct examination. But it might be thought that such a departure was exceptional having regard to the way in which paragraph (f) of the proceduresdocument is worded. When however one turns to the witness schedule which was produced one finds the following:

162. The effect of this of course was to transform the apparently exceptional provision provided for in paragraph (f) of the procedure into the norm.

163. But the matter does not stop there. The witness schedule for the hearings which has been put in evidence envisaged a ten day hearing stretching from the 24th April until the 11th May. During that time no fewer than 57 witnesses were to be heard. No cross examination was envisaged until day 9 of the enquiry. In the meantime all of these witnesses were to be subjected to questioning from the Chairman and members of the committee but with the right to cross examine deferred in general until the last day but one. Not merely was cross examination to be conducted on that day but closing submissions were also to be made by therelevant parties. True it is that there was a possibility of further evidence being heard on the 10th day and the schedule might be revised in accordance with the note at the end of the schedule.

164. The procedural issues were to be determined by the sub-committee on the first day of the hearing. We do not find anything said there which altered the procedures which had been outlined. Indeed it was made clear by the Chairman on the first day that at a meeting held on the 18th April 2001 the sub-committee envisaged the hearings lasting approximately sixty hours beginning on the 24th April and finishing not later than Friday 11th May.

165. Even allowing for the possibility of some extension of this time or the possibility of special applications being made to take cross examination prior to the time envisaged, can it be said that these procedures accord with the rights afforded in re Haughey?

166. The deferment in general of all cross examination to the end and then only with leave of the committee, in our view, falls far short of what is envisaged in re Haughey . Prior notification of the issues upon which it is proposed to cross examine empties it of much of its value.

167. The decision of the Supreme Court in re Haughey predicated a simple sequence. It involved calling the evidence, testing it by cross examination and making submissions. The sub-committee here took it upon itself to define other procedures because it took the view that Parliamentary procedure required it. It in effect said as a matter of general application cross examination was to be both deferred and limited. Furthermore the Chairman made it clear that the direct part to be played by lawyers was to be resorted to only where absolutelynecessary. He said “ The sub-committee will observe this stricture as all the questioning on behalf of the sub-committee will be conducted by the members.” All of this suggests that it was a clear attempt to rewrite the rules guaranteed under re Haughey and to do so in a manner which substantially diluted and negated them. Even if this had been done by a tribunal of enquiry presided over by a Judge (which per Murphy J. in Lawlor v Flood [1999] 3 I.R. 107 and Finlay C.J. in Goodman v Hamilton [1992] 2 I.R. 542 was regarded as a substantial guarantee that fair procedures would be followed) it would not survive criticism. Here with no Judge and no such guarantee and in reliance upon what appears to be Parliamentary procedure there was an attempt to substantially rewrite and recast the entitlements of persons appearing before the sub-committee.

168. It is as well to recall precisely what was said by O’Dalaigh C.J. in re Haughey . At pages 263/264 he said:

169. We are in no doubt but that some at least of the applicants in this case fall within the category of persons identified by O’Dalaigh C.J. in the passage which we have just cited. The court is equally satisfied that the rights identified as being applicable to such a person were not observed and that accordingly such persons were being and likely to continue to be subjected to unfair procedures which were unlawful.

170. A point has been taken that this complaint is premature and reliance is placed upon the Judgment of McLoughlin J. in re Haughey who was not prepared to condemn the committee’s procedures in that case because the point had not been reached, he said, when cross examination arose. But the Judgment whilst acknowledging that that point had not been reached nonetheless held that the procedures adopted violated Mr. Haughey’s rights. The rights of the applicants here were likewise violated.

171. All of the previous areas of complaint which have been dealt with in this Judgment proceed on the basis that there was jurisdiction on the part of Parliament to authorise an enquiry of the type in suit. The applicants take issue with that proposition and so we now turn to consider that question.

172. It must be made clear at the outset that the objection which is raised concerns the conduct of an enquiry which has adjudicative functions and can make findings of fact adverse to the good name and reputation of a citizen. There is no doubt that the present sub-committee sees itself as having just such a role.

173. The applicants contend that Parliament does not have power to conduct or authorise the conduct of an investigation with such an adjudicative power. Not merely that but it says that there are structural inabilities in the conduct of such an enquiry by Parliamentarians by reason of objective bias deriving from their representative roles. The respondents deny these contentions and allege that there is an inherent power in Parliament which authorises the conduct of such an enquiry. Furthermore they say that if a public enquiry under the 1921 legislation can be set up on foot of resolutions passed by Parliament it must be in a position to conduct such enquiries itself.

174. It is common case that the sub-committee must have a lawful authority for carrying out the task which it embarked upon. It looks to the resolution of the Joint Committee which in turn looks to the resolutions of the Houses as authority. But the applicants ask the question where does such authority derive from?

175. Although Articles 15 to 27 of the Constitution deal with considerable particularity with the National Parliament, nobody asserts that there is an express authority to be found in the Constitution authorising an investigation of this type.

176. It is also accepted that there is no authority conferred by legislation.

177. The respondents seek to establish the entitlement on the part of Parliament to conduct or authorise one of its committees to conduct enquiries of this type by reference to what is described as the inherent power of Parliament. The respondents other than Deputy Shatter do not point to any particular article of the Constitution with a view to establishing this inherent power but rather say that the entitlement to conduct such an enquiry is fundamental to the separation of powers. The first problem which confronts them with such an assertion is that if the matter is as fundamental as they allege, is it not extraordinary that it was not included in the most detailed provisions of the Constitution dealing with the National Parliament? Deputy Shatter anchors his case to some extent at least in Articles 5, 6 and 45 of the Constitution. Again, it would seem strange that a matter as allegedly fundamental as this would not be dealt with in the constitutional articles which deal with the National Parliament but rather would be gleaned inherently from others. But in essence Deputy Shatter, althoughmentioning these three articles, really formulates his case on the description of the State as being democratic.

178. Attention has been drawn to legislation ranging from the Oireachtas Witnesses Oaths Act of 1924 to the 1997 Act. The 1924 Act provided for the administering of an oath before inter alia a Joint Committee of both Houses of the Oireachtas. That was applied to the Houses of the new Oireachtas by the provisions of the Constitution (Consequential Provisions) Act 1937. Then came the 1970 Act which was at the heart of the Haughey case. That conferred powers of compulsion upon a single committee for the purposes of a specific enquiry referred to in a resolution of the Dail which in turn is referred to in the Act. In 1976 the Committees of the Houses of the Oireachtas (Privilege and Procedure) Act affirmed the privilege of members of committees of either or both Houses of the Oireachtas. The Select Committee on Legislation and Security of Dail Eireann (Privilege and Immunity) Act, 1994, was passed in order to address a specific enquiry being conducted by a Dail committee. In that case it was of interest to note that when that Select Committee reported, it merely sent the transcript of the hearings to the Dail but made no findings of fact.

179. The 1997 Act provides powers to secure discovery of documents and to compel the attendance of witnesses.

180. The interesting feature of all of these acts with the exception of that passed in 1970 is that none of them confers an express power on the Houses of Parliament to convene enquiries of the type involved here. The 1970 Act expressly referred to a subject matter identified in aresolution of the Dail. It was exceptional in that regard. It did not survive Constitutional scrutiny.

181. The 1997 Act is perhaps the most extensive of all of these pieces of legislation. The respondents contend that inherent in the powers which were conferred by that Act is an entitlement to produce a report of the type which is contemplated here. However it must be said that despite the extensive nature of this legislation it does not expressly confer such power. Indeed it does not even confer a power to enquire such as is contained in the Tribunals of Inquiry (Evidence) Act, 1921. Given that the Act does not itself confer this power can it be said to arise by implication? It is said that the Act must be so construed because of a pre existing power in Parliament to conduct enquiries of the type in suit. This proposition would explain why the Act of 1997 came about i.e. to give specific statutory powers in aid of an inherent entitlement. That begs the question as to whether there is such an inherent entitlement.

182. The court proposes to look at that question first from a historical point of view and secondly by reference to recent decisions which were cited.

183. In his book ‘Trial by Tribunal’ Professor George Keeton sets out the history of the power of Parliamentary investigation. Such power appears to have originated in 1678 and was first employed to investigate the state of the navy which as well as allegedly wasting public moneys was thought to be riddled with popery. The Professor concludes “ The Committee of Enquiry, therefore, appears in its first use as a tribunal of investigation after the Restoration as a party instrument making no claim to impartiality. This defect remained a feature of it throughout its history.”

184. Many committees of enquiry followed and as a matter of historical fact the Westminister Parliament developed a power to investigate, summon witnesses and demand the production of documents. Thus the notion of the “ High Court of Parliament” became a feature of British constitutional theory with practical effects. Many investigations were conducted the last such being the Marconi Enquiry in 1912. That and several other celebrated committees and commissions of enquiry are regarded as being largely responsible for the passage into law of the 1921 Act which permits the setting up of a tribunal of enquiry. Such tribunals are considered to be much superior to the Parliamentary Tribunal for a variety of reasons not least of which that they were normally presided over by a Judge, had power to elicit evidence on oath and were considered appropriate to secure a thorough and impartial investigation.

185. The background to the 1921 Act is summarised by Hamilton C.J. in Haughey v Moriarty (1999) 3 IR 1 at 54 - 55 as follows:

186. Professor Keeton expresses the view that the Select Committee had fallen into such discredit as a means of investigating alleged delinquencies that it was difficult to imagine a return to that method of investigation.

187. The Salmon Report in dealing with the Select Parliamentary Committees of Enquiry says this (at paras 35 and 36)

188. Is it likely that the drafters of the Free State Constitution of 1922 (just one year after the passage of the 1921 Act) would have thought it wise to revert to or continue such a discredited form of investigation? The answer appears to be no.

189. The attainment of independence and the coming into force of the 1922 Constitution of the Irish Free State brought about a fundamental change in the constitutional order. Insofar as the Westminister entitlement to conduct enquiries was concerned Professor Leo Kohn in his work “The Constution of the Irish Free State” said this:

190. Professor Kohn specifies the many respects in which powers of an inherent nature within the Westminister Parliament were not carried over into the Free State Constitutions. The Free State Constitution gave positive powers and defined them but did not leave any place for an inherent power such as is contended for here.

191. The report of the Committee on the Constitution in 1967 in dealing with the scope of Parliamentary privilege under Article 15.10 of the 1937 Constitution said that

192. There was no inherent power in the 1922 Constitution to conduct investigations of this type in suit. The 1937 Constitution does not contain an express proviso authorising it. This similarity of the provisions dealing with the National Parliament in both Constitutions would suggest that there is no inherent power of the type contended for. To put it as Professor Gwynn Morgan states

193. Regardless of these views however the respondents contend that there are judicial dicta which are binding upon this court and which make it plain that the courts have taken the view that enquiries of this sort are indeed permissible.

194. Whilst a number of cases have been cited they are all neatly summarised by the following passage from Hamilton C.J. in Haughey v Moriarty [1999] 3 I.R.1 at pages 32 - 34.

195. This final part from the quotation leads on to an issue which can be disposed of at this stage before returning to consider whether a sub-committee of the type in suit here is exercising powers which are “ normally and necessarily” exercised by a legislature in a democratic State.

196. It is the point which is made to the effect that if Parliament can pass a resolution which leads to the setting up of a public enquiry under the 1921 Act then it can surely resolve to conduct such an enquiry itself. It is said that a tribunal of enquiry is the agent of the legislature. The agent can only have the powers which the principal has and therefore the legislature could conduct such an investigation itself. At first sight that is an argument that may appear attractive. But is it a correct analysis of the legal situation?

197. We think not. The true analysis in fact is carried out by Costello J. in the case of Goodman v Hamilton [1992] 2 I.R. 542 at 554/555. He said:

198. This analysis of the position by Costello J. makes it plain that the legislature is not the appointing body of a tribunal under the 1921 Act. It is devoid of any authority to make such an appointment. It must follow therefore that the argument based on agency fails. As the legislature cannot appoint a tribunal under the 1921 Act it is not possible to deduce from the existence of such a tribunal an inherent power in the legislature such as is contended for.

199. There therefore remains the question as to whether this power of adjudication can be considered to be one normally and necessarily exercised by a legislature in a democratic state. Insofar as this State is concerned if the power exists it has been sought to be exercised on only four occasions in the history of the State. The first occasion gave rise to the decision of re Haughey . The second occasion was in respect of the Deposit Interest Retention Tax enquiry where, save for one issue concerning an alleged tax amnesty given to certain banks, there were no other issues of fact requiring adjudication. The third occasion is the present case and the fourth concerns another parliamentary committee which is also the subject matter of Judicial Review proceedings.

200. A notable feature of the inherent power asserted here is that it is a bare power to enquire. In other legislatures where such power does exist it is always accompanied by a co-existing inherent power to enable effect to be given to it. That co-existing power is one which permits of witnesses being compelled to appear under threat of sanction if they fail to do so.

201. In the same case Lord Denman C.J. said:

202. This case supports the view that if there is an inherent power in parliament it must be accompanied by an inherent ability to give effect to it. Otherwise it is useless.

203. In the United States of America in the case of McGrain v Daugherty 273 U.S. 135 the Supreme Court per Van Devanter J. considered the power of Congress to conduct enquiries. Having considered a number of cases that Judge said at page 173 - 175

204. These cases demonstrate that it is not normal to have a bare power of adjudication inhering in parliament. Nor could such a power be considered necessary because it is of no benefit without the powers of compulsion in respect of attendance and punishment in default.

205. The Court concludes that an inherent power of the type contended for is neither normal or necessarily exercised in other democratic states.

206. The Court accepts the reliance placed in particular by Mr. Shatter on the statement from Van Devanter J’s judgment to the effect that a legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change. It makes sense that if the legislative body itself does not possess the requisite information it can have recourse to others who do possess it. But that does not mean that it has or is entitled to exercise an adjudicative jurisdiction of the type which is sought to be exercised here.

207. A number of further points require to be addressed before expressing our final conclusion on this aspect of the matter. The respondents contend that the argument made concerning the lack of an inherent jurisdiction to conduct an enquiry of the type in suit runs counter to the decision of in re Haughey . Despite the extensive nature of the argument made in that case it does appear that this point was never argued. A point not argued is a point not decided. It may not have been raised for any number of reasons. One perhaps was that the particularenquiry in that case was being carried out with specific statutory powers pertinent to that enquiry. For whatever reason the point was not argued or decided and therefore we do not think that the decision in re Haughey can be relied upon as providing judicial authority for the notion of an inherent power to conduct an enquiry of the type involved in this case.

208. Our attention was drawn to specific constitutional provisions where powers of adjudication are, it is said, given to parliament. These relate to an adjudication upon the President’s behaviour and the removal of a judge from office.

209. Article 12.10 sets out with particularity the procedure which is to be followed and confers an express power in that regard. Article 13.8.2 permits of the behaviour of the President being brought under review in either of the Houses of the Oireachtas for the purposes of sub-article 10 of Article 12 of the Constitution or by any court, tribunal or body appointed or designated by either of the Houses for the investigation of a charge under Section 10.

210. Article 35.4 provides that a Judge of the Supreme Court or the High Court shall not be removed from Office except for stated misbehaviour or incapacity, and then only upon resolutions passed by Dail Eireann and by Seanad Eireann calling for his removal.

211. We do not see how these specific constitutional entitlements which were conferred on parliament can be used to imply some wide ranging power of fact finding and adjudication. These are specific and explicit and limited entitlements which were conferred and do not imply a greater or more wide ranging power of adjudication. In fact they would suggest the contrary.

212. We have therefore come to the conclusion that the applicant’s argument is correct namely that there is no inherent power in parliament to conduct an enquiry involving adjudicative functions of the type which were sought to be exercised by the sub-committee in this case. Such a power is not inherent under the present constitutional regime governing the National Parliament nor did it exist in the Parliament established under the Constitution of the Irish Free State of 1922.

213. Having so concluded, the Court does not deem it either necessary or appropriate that it should proceed to make findings concerning two remaining issues. One is the alleged inability of elected representatives to conduct adjudications of the type in suit because of perceived or structural bias arising particularly from their representative functions as elected parliamentarians. The other is the alleged inappropriateness of a senator being present on the sub-committee.

214. In the light of the above findings the following Orders result: There will be: