1. Part of the Plaintiffs’ appeal in the case is against the dismissal by the High Court of their claim for a declaration that the Tribunal of Inquiry (Evidence) Act, 1921 as amended is invalid having regard to the provisions of the Constitution. The Court in this decision deals with that issue.

2. The submissions made on behalf of the Plaintiffs/Appellants in this case extend beyond the mere issue as to whether or not the provisions of the 1921 Act (as amended) themselves are invalid having regard to the provisions of the Constitution and raise the issues as to:-

3. These issues are of general application and must be considered by the Court without regard to the terms of the Resolution and Order made in the instant case.

4. The Court considers that the following provisions of the Constitution are relevant to these issues.

5. Article 5 which provides that:-

6. Article 6 which provides that:-

7. Article 15.2 of the Constitution which provides:-

8. Article 15.10 which provides:-

9. Article 28.2 which provides that:-

10. Article 34.1 which provides that:-

11. The Court considers it necessary at this stage to set forth the relevant provisions of the 1921 Act (as amended) and to summarise the effect of such provisions.

12. The Tribunals of Inquiry (Evidence) Act, 1921 (hereinafter referred to as the 1921 Act) is a short Act expressed to be

13. The 1921 Act was amended by the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979 (hereinafter referred to as the 1979 Act) by the

14. Section 6 of the 1979 Act was amended by the 1997 Act by the substitution therefor of the following subsection:-

15. Section 4 of the 1997 Act provides that:-

16. Two subsequent Acts dealt with circumstances in which the instrument appointing a Tribunal may be amended but are not relevant to these proceedings.

17. The effects of the foregoing legislation may be summarised as follows:-

18. It was submitted firstly on behalf of the Plaintiffs/Appellants that the 1921 Act (as amended) does not empower the establishment of a Tribunal of Inquiry.

19. This submission was accepted by the Respondents herein and is accepted by the Court.

20. The Court considers that on this issue it is only necessary to repeat and concur with the statement made by Costello J., as he then was, in the course of his judgment in Goodman International and Laurence Goodman .v. Hamilton no.1 [1992] 2 IR p. 542 (hereinafter referred to as the Goodman case) at page 554 of the Report:-

21. It was submitted on behalf of the Appellants herein that, in the absence of such a statutory provision, the Houses of the Oireachtas had no

22. It was submitted that while it may be open to a sovereign Parliament of the United Kingdom to resolve that it is expedient that a tribunal be established for inquiring into a definite matter described in the resolution as being of urgent public importance and, in pursuance of such a resolution, open to Her Majesty or a Secretary of State to appoint a tribunal and to provide that the provisions of the 1921 Act should apply thereto, it was not open to the Houses of the Oireachtas so to resolve and to the Taoiseach or a Minister so to appoint and provide, having regard to the provisions of, and the framework provided by, the Constitution.

23. It was submitted that the jurisdiction of the Houses of the Oireachtas in this regard was limited by the provisions of Article 15.10 of the Constitution which provides that -

24. This submission is based on a misunderstanding of the role of the Houses of the Oireachtas as set forth in the Constitution.

25. Article 5 thereof provides that Ireland is a sovereign, independent, democratic state.

26. Accordingly, the powers of Government are exercisable by or on the authority of the organs of State established by the Constitution (Art. 6.2).

27. As stated by Ó Dálaigh J. in the course of his judgment in In Re Haughey [1971] IR 217 at p. 250: -

28. Having regard to the sovereign and democratic nature of the State, each of the organs of Government enjoy the powers normally exercised by such organs in a sovereign and democratic state and are not restricted to the powers expressly set forth in the provisions of the Constitution. They are, however, subject to the provisions of the Constitution and in the exercise of such powers, are obliged to have regard to such provisions.

29. The powers of the Houses of the Oireachtas are not limited to those specifically set forth in Article 15 of the Constitution but must include such powers as are normally and necessarily exercised by a legislature in a democratic state. These powers and the exercise thereof may of course be limited by the provisions of the Constitution.

30. In the course of his judgment in the Goodman case, Costello J. stated at page 563 of the Report that:-

31. The views of Costello J. were accepted by Finlay CJ. in the course of his judgment in the Goodman case where he stated that

32. The Court is satisfied that there is no provision in the Constitution which prohibits the two Houses of the Oireachtas from resolving that it is expedient that a tribunal be established for enquiring into a definite matter described in the resolution as of urgent public importance; or which prohibits the Taoiseach or a Minister from appointing a Tribunal in pursuance of such resolution.

33. While there is no provision in the Constitution prohibiting them from so doing the questions still remain as to whether it was inherent in their jurisdiction so to do, in the absence of any enabling statutory

34. This issue was raised in the Goodman case.

35. In the course of his judgment therein, Costello J. stated at page 554: -

36. In this passage Costello J. recognised that the Government or any Minister can inquire into matters of urgent public importance as part of its executive powers but that if this is done without reference to Parliament

37. Having cited the provisions of Article 15.10 in the course of his judgment in the Goodman case, Hederman J. went on to say that (at p. 597 of the Report):-

38. On this issue he further stated at page 598 that:-

39. At the conclusion of his judgment in the Goodman case McCarthy J. clearly recognised the power of Parliament to pass the resolutions passed in that case where he stated at page 610 of the Report:-

40. He went on however to state:-

41. The Court is satisfied that while the 1921 Act (as amended) does not empower the establishment of a Tribunal of Inquiry 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 inquire 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 1921 Act as amended should apply.

42. The powers of both Houses of the Oireachtas in this regard, however, are not absolute.

43. The power cannot be abused, exercised for improper motives or in breach of constitutional rights including the right to fair procedures. If such circumstances arise, the exercise of such power can be restrained by the Courts and in this regard, as stated by C.J. in the State (Quinn) .v. Ryan [1965] IR 70 at p. 122: -

44. The resolutions of both Houses of the Oireachtas enjoy the same presumption of constitutional validity as has been applied by this Court to statutes enacted by the Oireachtas and to bills passed by both Houses of the Oireachtas and referred to this Court by the President pursuant to Article 26.

45. The presumption of constitutional validity, also in its application to such resolutions, must contain the principle set out by the decision of this Court in East Donegal Co-Operative Livestock Marts Ltd.. v. Attorney General [1970] IR 317 in the judgment delivered by Walsh J. where he stated at page 341 as follows:

46. It was further submitted that the 1921 Act did not continue to be of full force and effect subsequent to the enactment of the Constitution by reason of the fact that the provisions thereof were inconsistent therewith.

47. The determination of this issue will depend on the Court’s decision as to whether the provisions thereof are invalid having regard to the provisions of the Constitution.

48. The presumption of constitutionality which has been afforded by this Court to Acts of the Oireachtas extends neither to pre-1922 Acts of the late United Kingdom Parliament nor to pre-1937 legislation.

49. As stated by Budd J. in the course of his judgment in Educational Company .v. Fitzpatrick (No. 2) [1961] IR 345 at p. 368: -

50. The presumption of constitutionality is available only to acts of the post-1937 Constitution.

51. While there is no presumption of constitutionality in favour of pre-1922 Acts of Parliament or Acts passed prior to the coming into effect of the Constitution, this Court in Norris .v. Attorney General [1984] IR 36 confirmed that the onus of establishing the inconsistency of the terms of a statute with the provisions of the Constitution rests with the person who challenges its continued validity.

52. At page 53 of the report, O’Higgins C.J. states that:-

53. “The purpose of Article 50, s. 1, is to continue in force the laws which had previously operated in Saorstát Éireann, with as few exceptions as possible. The phrase “subject to this Constitution” indicates an obvious requirement that, in order to be operable in the new State, such laws must fit into the framework of, and be controlled by, the Constitution. If, by the nature of their

54. If Article 50 had provided that such laws would continue to be of full force and effect ‘to the extent to which they are consistent with the Constitution’ would it have the same meaning and effect? In my view, it clearly would not. In such circumstances, consistency would have to be proved and in the absence of such proof the law or laws would be inoperative. However, according to the actual words used in Article 50, the law or laws in question operate unless inconsistency is established, and the onus of establishing such is placed on the person who challenges their continued validity. This is not to say that such pre-Constitution laws enjoy any presumption of consistency or constitutionality. They do not. Each such law must be examined to see what it purports to authorise or permit. If on such examination it emerges that the law permits what the Constitution prohibits or forbids what the Constitution sanctions, then inconsistency is established,

55. Consequently, while the 1921 Act does not enjoy the presumption of constitutionality, the amending Acts 1979-1998, being post-1937 Statutes, do.

56. As the Plaintiffs/Appellants challenge the continued validity of the 1921 Act and the validity of the amending Acts, 1979-1998, having regard to the provisions of the Constitution, the onus rests on them to establish such challenge.

57. It was submitted on behalf of the Plaintiffs/Appellants that the provisions of the 1921 Act (as amended) are invalid having regard to the provisions of the Constitution on the basis that a Tribunal, vested with the

58. It is important at this stage to emphasise that though the Tribunal is vested with the powers set forth in Section 1 of the 1921 Act and Section 4 of the 1979 Act, the Tribunal has itself no power to enforce its orders or to punish a person for failure to comply with such orders.

59. By virtue of the provisions of Section 2 of the 1921 Act, the Chairman of the Tribunal was obliged in the case of an offence by any person before the Tribunal to invoke the assistance of the High Court, or in Scotland the

60. Court of Sessions, by certifying the offence of that person to such Court which was then required to inquire into the alleged offence and after hearing any witnesses who may be produced against or on behalf of the person charged with the offence, and any statement that may be offered in defence, punish or take steps for the punishment of that person in like manner as if he had been guilty of contempt of court.

61. As previously stated, this sub-section of the Act of 1921 was replaced by Section 3 of the 1979 Act, which created the offences therein set forth and provided for the manner in which they would be dealt with.

62. This Section provided that a person is guilty of an offence thereunder if he

63. By virtue of the provisions of Section 2A of the 1921 Act (as amended), a person found guilty of such an offence on indictment was liable to a fine not exceeding £10,000 or at the discretion of the Court, to imprisonment for a term not exceeding 2 years or both such fine and such imprisonment or on summary conviction in the circumstances set forth in 2A(b), to a fine not exceeding £500 or imprisonment for a term of imprisonment not exceeding 1 year or to both such fine and imprisonment.

64. Though the powers of the Tribunal are set forth in Section 1(a), (b) and (c) of the 1921 Act and in Section 4 of the 1979 Act, which provides that “a Tribunal may make such orders as it considers necessary for the purposes of its functions”, the foregoing list of offences created by Section 3 of the 1979 Act gives a clear indication of the nature and extent of such powers.

65. Though Section 4 of the 1979 Act gave power to the tribunal to make such orders as it considers necessary for the purposes of its functions and provided that it shall in relation to their making, have all such powers, rights and privileges as are vested in the High Court or a Judge of that Court in the making of such orders it does not give to the Tribunal any power to enforce such orders.

66. This is further emphasised by the provisions of Section 4 of the 1997 Act which provides that:-

67. Though the powers, rights and privileges which are vested in the Tribunal include many of the powers, rights and privileges vested in the High Court, they do not include the power vested in the High Court to enforce its orders and impose penalties for breach thereof.

68. Compliance with such orders can only be enforced by the High Court but failure to comply therewith could also result in a conviction for an offence, rendering a person convicted of such an offence, liable to a fine not exceeding £10,000 or imprisonment for a term not exceeding two years or to both.

69. The question of whether or not a Tribunal appointed by a Minister in pursuance of a Resolution by both Houses of the Oireachtas and enjoying the powers and privileges vested in it by the provisions of the 1921 Act as amended was, in the discharge of its functions, engaged in the

70. In the course of his judgment therein Finlay C.J., at page 589 of the Report, when dealing with the provisions of Article 34 of the Constitution, stated -

71. He then went on to say:-

72. In the course of his judgment Hederman J. stated (at p. 601): -

73. He went on to say that:-

74. The powers conferred by Section 4 of the Act of 1979 on a tribunal to which the Act of 1921 as amended apply are, accordingly, not unlimited. It is to be presumed that the Oireachtas did not intend to confer on such a tribunal the power to administer justice in violation of Article 34.1 of the Constitution unless no other construction of Section 4 is reasonably open. The long title of the Act of 1921, together with which the Act of 1979 is to be construed, makes it clear that it is an Act “to make provision with respect to the taking of evidence and the procedure and powers of .....” tribunals of this nature. Such a tribunal, moreover, was confined to making such orders under Section 4 as it considered necessary “for the purposes of its functions”.

75. While the intention clearly was that such tribunals should be armed with the same powers as the High Court in regard to the taking of evidence, this was subject to the major qualification that the tribunal, unlike the High

76. Court, would have no power to ensure compliance with its orders by such means as the contempt of court procedure. It is unnecessary for the purposes of this judgment to identify with any greater particularity the powers which it was intended to confer on such tribunals in addition to those expressly specified in the legislation: it is sufficient to say that the court entirely agrees with the conclusion of Hederman J. in the passage just cited that the fact that such powers are conferred on a Tribunal of Inquiry does not constitute such a body a court. That conclusion is also entirely consistent with the following passage from the judgment of McCarthy J., (at p. 604) in the same case:-

77. The Court is satisfied that, though the aforesaid statements were made in the context of the resolutions passed which led to the Inquiry referred to in the Goodman cases, they are correct and apply to all such inquiries and that the conduct of such an inquiry does not amount to the administration of justice. The critical factor is trial and adjudication, not inquiry.

78. This Court is satisfied that the activities of a Tribunal of Inquiry of this type fulfil none of the fundamental conditions or characteristics of the administration of justice as laid down by Kenny J. in McDonald .v. Bórd na gCon [1965] IR 217 in the passage which was later accepted by the decision of the Supreme Court in the judgment of Walsh J. and set forth in the judgment of Finlay C.J. in the Goodman case at page 393.

79. The Tribunal is not conducting a trial and in no sense is adjudication involved: it is merely conducting an inquiry.

80. The nature of the powers conferred on the Tribunal by the relevant sections of the 1921 Act as amended must however be construed as subject to the constitutional framework and, in particular, involving fair procedures.

81. The Court is entitled to assume that a Tribunal of Inquiry will conduct its inquiry, as it is obliged to do, in accordance with the principles of constitutional justice and in particular with regard to fair procedures.

82. The Court is satisfied that it has not been established to the satisfaction of the Court that the provisions of the 1921 Act as amended are invalid having regard to the provisions of the Constitution or are inconsistent therewith.

83. The Order of the Court will so declare.

84. The said Act of 1921 (save where amended) continues to be of force and effect pursuant to the provisions of Article 50 of the Constitution.

85. The Order of the Court will so declare.

86. This concludes the judgment of the Court.

87. The Court now turns to a consideration of the several grounds of appeal which raise questions which are independent of the constitutionality of the 1921 Act as amended and this judgment is also a judgment of the Court.

88. Before dealing with these grounds, it is necessary to set forth in some detail the background thereto.

89. A resolution in the following terms was passed by Dáil Éireann on the 11th day of September, 1997 and by Seanad Éireann on the 18th day of September, 1997: -

90. On the 26th day of September, 1997 an order in the following terms was made by An Taoiseach:-

91. The Report of the Tribunal of Inquiry (Dunnes Payments) referred to in the aforesaid Resolution was the Report of a Tribunal appointed by the then Taoiseach, Mr. John Bruton, on the 7th day of February, 1997 (and hereinafter referred to as the McCracken Tribunal) subsequent to Resolutions passed by Dáil Éireann on the 6th day of February, 1997.

92. In essence the terms of reference of the McCracken Tribunal were:-

93. The McCracken Tribunal presented its Report to the Taoiseach on the 25th day of August, 1997.

94. It appears from the said Report that it was established that:

95. The manner in which the Ansbacher Accounts were operated is set forth in detail in Chapter 6 of the said Report.

96. At page 38 of the Report, the Tribunal reported that:-

97. At the conclusion of Chapter 6 of the Report, the McCracken Tribunal reported that:

98. The McCracken Tribunal further reported at page 73 that:-

99. The publication of the said report and disclosure of the facts contained therein gave rise to serious public concern which fact was recognised by both Houses of the Oireachtas as disclosed in the resolution passed by them which begins with the statement:-

100. Both Houses of the Oireachtas resolved that it was expedient that a Tribunal be established for inquiring into the definite matters described in the Resolution as of urgent public interest and in pursuance of the Resolution a tribunal was appointed for the purpose by the Taoiseach.

101. The instrument by which the Tribunal was appointed provided that:-

102. It appears from the terms of the Interim Report made by the Tribunal to the Taoiseach that -

103. It does not appear from the said Report that there were any other sittings in public or that any other business has been transacted by the Tribunal in public.

104. The said Report further stated that:-

105. Between the 20th day of November, 1997 and the 17th day of December 1997 the Tribunal made a number of orders directing financial institutions and others to make discovery on oath of all documents including, (without prejudice to the generality of that term) all statements of accounts, mandates, ledger books, agreements, correspondence, security documents, guarantees, memoranda, computer or other records or documents of any description whatsoever within the power, possession or procurement of the institution, relating to Mr. Charles J. Haughey, or any person who is or was connected with him as defined by Section 2(12) of the Ethics in Public Service Act, 1995, including the persons listed in the First Schedule to the Orders.

106. The Order made on the 20th November, 1997 directed to the Secretary of the Anglo Irish Bank Corporation Plc. is illustrative of the orders of this kind made by the Tribunal and is set forth hereunder.

107. No notice of the intention to make the said Orders of Discovery was given to the institution or person to which it was directed or to the persons affected thereby including the persons named in the Schedule thereby depriving them the opportunity to make any representations to the Tribunal with regard to the necessity or otherwise for the making of the said Orders or with regard to the extent thereof.

108. Neither was the order served on anybody other than the institution or person to which it was directed.

109. The order provided in the last paragraph thereof that the institution

110. Having regard to the time limited in the said orders for compliance therewith and the failure to serve a copy of the order on any person interested, such as the Plaintiffs that concession was not of any real use.

111. The said orders were made in private upon application to the Tribunal by Counsel to the Tribunal.

112. On the 18th day of December, 1997 proceedings were instituted in the High Court by the Plaintiffs herein by Plenary Summons.

113. The relief claimed on behalf of the Plaintiffs and the basis therefor is set forth in the Amended Statement of Claim delivered on the 14th day of January, 1998.

114. The said Statement of Claim referred to the resolution passed by Dáil Éireann on the 11th day of September 1997 and by Seanad Éireann on the 18th day of September 1997 and to the fact that the Taoiseach by order of the 26th September 1997 appointed the first named Defendant to be sole member of a Tribunal of Inquiry to inquire into the matters set out in the aforesaid resolutions and alleged that:-

115. The allegation that the Dáil was not properly convened was withdrawn by letter dated the 9th January 1998. However, the allegation that Seanad Éireann was not properly convened on the 18th September,

116. At paragraph 12 of the said amended Statement of Claim the Plaintiffs contended that the provisions of the Tribunal of Inquiry (Evidence) Act, 1921 as amended infringed the provisions of Article 34.1 of the Constitution and are repugnant to the Constitution and/or were not carried into law in the State under Article 50 of the Constitution.

117. This portion of the Plaintiffs’ claim has been dealt with in the judgment of the Court already delivered.

118. In the alternative the Plaintiffs contended at Paragraph 13 that:-

119. The Statement of Claim then stated:-

120. The remainder of the statement of claim relates to the manner in which the Inquiry has been and is being conducted by the first named Defendant and will be dealt with at a later stage in this judgment.

121. The Plaintiffs then claimed:-

122. The Plaintiffs’ claim was heard in the High Court by Mr. Justice Geoghegan who delivered judgment on the 28th day of April 1998.

123. For the reasons set forth by him in the course of the said judgment, the learned trial judge refused the specific Declarations and Orders sought in the amended statement of claim (which have already been set forth herein), but made the following limited declarations:-

124. The Plaintiffs have appealed to this Court for

125. A. An order setting aside the judgment and order of the High Court save in so far as the said Order provided that the Court made the Declaration at (2) therein.

126. B. An Order in lieu thereof

127. C. An order awarding the costs of these proceedings and of the proceedings in the High Court together with all reserved costs to the Plaintiffs/Appellants.

128. The grounds of appeal are set forth in detail in the Notice of Appeal dated the 6th day of May, 1998.

129. It is not necessary at this stage to set them forth as they will be dealt with in the course of the consideration of the issues raised thereby.

130. A question arose during the course of the hearing as to whether a tribunal appointed by the Taoiseach could exercise the powers conferred on Tribunals of Inquiry appointed under the 1921 Act (as amended).

131. At the time of the enactment of the 1921 Act, accordingly, a tribunal could be vested with the powers under the 1921 Act only where it was appointed by the Crown acting on the advice of the Government or a Secretary of State, which latter expression, under s.12(3) of the Interpretation Act 1889, meant, unless a contrary intention appeared, one of the “Principal Secretaries of State”.

132. Clearly, these provisions were not operable as enacted following the coming into being of the Irish Free State, the Constitution of which provided for the establishment of the Executive Council as the effective

133. However, in exercise of powers conferred on them by s.12 of the Adaptation of Enactments Act 1922, the Executive Council made two orders adapting or modifying the relevant provisions of the 1921 Act. The first (the Tribunals of Inquiry (Evidence) Act 1921 Adaptation Order 1930) (SRO No. 48 of 1930) provides at para. 3 that:-

134. The second (The Tribunals of Inquiry Evidence) Act 1921 Adaptation Order 1936) (SRO No. 25 of 1936) provides that:-

135. Section 2(1) of the Executive Power (Consequential Provisions) Act 1937 (which was enacted following the abolition of the office of Governor General) provides that:

136. Following the enactment of the present Constitution, that power was vested - and remains vested - in the Government by virtue of s.4(1) of the Constitution (Consequential Provisions) Act 1937. While sections 6 (1) of the Executive Powers (Consequential Provisions) Act 1937 empowered the Executive Council to transfer by order to any “Executive Minister” any of the powers of the Executive Council, that power appears never to have been exercised so as to transfer the power of the Executive Council to appoint a tribunal under the 1921 Act to the President of the Council.

137. Article 52 of the Constitution of the Irish Free State makes it clear that the President of the Executive Council was to be one of the Ministers forming the Executive Council and this was given statutory

138. However, the 1921 Act itself did not provide any such role for the Prime Minister; the powers could be exercised only by the Government or one of the Secretaries of State, among whom the Prime Minister was not included. It would seem, accordingly, that the adaptation or modification effected by the second Order was more in the nature of an amendment of the 1921 Act and the terms of the parent Act require examination in order to determine whether the Order was intra vires the powers of the Executive Council.

139. S.12(1) of the Adaptation of Enactments Act 1922 provided that:-

140. The Executive Council did not avail of this power so as to exclude the President of the Executive Council from the Ministers in whom were to be vested the powers under the 1921 Act. If the office of President of the Executive Council had corresponded exactly to the position of the British Prime Minister, a question might arise as to whether the power of adaptation could be exercised so as to confer on a particular office holder a power which it was not the intention of the relevant legislation that he or she should enjoy. But it is unnecessary to consider whether, in such circumstances, the Adaptation Order might have to be construed so as to exclude the President, because it is quite clear that there were significant

141. The provisions of the Constitution relied on by the Plaintiffs/Appellants are:

142. Article 40.1 which provides that:-

143. Article 40.3 which provides that:-

144. Article 15.5 provides:-

145. Article 15.13 of the Constitution provides that:-

146. The resolutions passed by both Houses of the Oireachtas enjoy the presumption of constitutionality.

147. As stated by Finlay C.J. in the course of his judgment in the Goodman case at page 586: -

148. Finlay, C.J. emphasised, however, that the presumption of constitutional validity also, in application to these resolutions, must contain the principle set out by the decision of the Supreme Court in East Donegal Co-operative Livestock Mart Ltd. .v. Attorney General [1970] 1 IR 317 in the judgment delivered by Walsh J. where at p. 341 he stated as follows:-

149. He then stated that:-

150. These passages clearly establish that the resolutions passed by both Houses of the Oireachtas enjoy the presumption of constitutionality and that this Court must presume that the proceedings of the Inquiry will be conducted in accordance with constitutional justice.

151. In view of the presumption of constitutional validity enjoyed by the Resolutions, the onus is on the Plaintiffs/Appellants to clearly establish that the terms thereof contravene the provisions of the Constitution.

152. In the first instance it was submitted on behalf of the Plaintiffs/Appellants that the resolution of Seanad Éireann was invalid

153. It does not appear to be in issue that the President did fix the date of the first meeting of Seanad Éireann after the general election.

154. The validity of such order however was challenged on the basis of the alleged failure of An Taoiseach to so advise the President.

155. The Order fixing the sitting of Seanad Éireann was made by the President in the exercise of the powers and functions of her office.

156. Article 13.8 of the Constitution provides that:-

157. This ground of challenge to the validity of the Resolutions must fail.

158. While the resolutions passed by both Houses of the Oireachtas enjoy the presumption of constitutionality and are entitled to due respect from the judicial organ of Government, the Court is empowered to intervene if the terms of the resolutions and the nature of the Inquiry established in pursuance thereof infringes, without justification the constitutional rights of any person, including the Plaintiffs/Appellants herein.

159. The Legislature and the Executive are both organs of the State and, as such, are subject to the provisions of the Constitution and in particular to Article 40.3 thereof. In Article 40.3 the State guarantees in

160. In the course of his judgment in Norris .v. Attorney General [1984] IR 36, McCarthy J. stated:-

161. The Court also agrees with this view.

162. Such obligations obviously extend to the passing of resolutions of both Houses of the Oireachtas which have been favoured with the presumption of constitutional validity.

163. It is submitted on behalf of the Plaintiffs/Appellants that the Resolution passed by both Houses of the Oireachtas, and in particular the inquiries directed in (a), (b), (c), (d) and (i) thereof were invalid and ultra vires the jurisdiction vested in the Houses of the Oireachtas because the terms thereof:-

164. Before dealing with these specific grounds, it is necessary to outline the nature of the Inquiry in the present case.

165. It is claimed on behalf of the Plaintiffs/Appellants that the inquiry mandated by the Resolution and Order made in the present case is ultra vires the 1921 Act with the result that it was not within the competence of the Taoiseach to make an order applying the provisions of the 1921 Act to the Tribunal. The provisions of the 1921 Act, it is urged, can only be invoked in aid of the legislative process and as a last resort.

166. In support of that objection, it was argued that, if the intention of, establishing the Tribunal was to reform the political system as to the making of payments to politicians or political parties, the terms of reference would not have been confined to the private finances of the appellants and Mr. Lowry. A tribunal such as the present could not be

167. It may be the case - and is almost invariably the case - that a tribunal established under the 1921 Act is empowered to make recommendations as to legislative or administrative reforms which appear to it to be desirable having regard to its findings. That is so in the case of the tribunal now under consideration. But it is by no means the only purpose for which such a tribunal may be established. In the report of the Royal Commission of Tribunals of Inquiry 1966 in the United

168. Kingdom, under the Chairmanship of Lord Justice Salmon, as he then was (hereafter “the Salmon Report”), the following passage appears at para. 27: -

169. And again at para. 28: -

170. Those considerations are also applicable in this jurisdiction. There are various models which may be availed of by the Oireachtas and the Executive in the form of Commissions or Committees, in the latter case, either within the Oireachtas or external to it, for the purpose of advising them as to the desirability of legislation on particular topics. The

171. It may or may not be empowered to make recommendations as to reforms in the law which appear desirable in the light of its findings. Historically, however, both in the United Kingdom and Ireland the principal function of such tribunals has been to restore public confidence in the democratic institutions of the State by having the most rigorous possible inquiry consistent with the rights of the citizens into the circumstances which gave rise to the public disquiet. It is clear from the Salmon Report and the helpful study of the work of such tribunals in England by George W. Keeton Trial by Tribunal that prior to the enactment of the 1921 Act the only machinery available to enquire into

172. The underlying policy of the 1921 Act as subsequently amended is thus not in doubt. It is to provide the machinery, wholly independent of the political process, whereby matters of grave public concern may be

173. The submission that the establishment of the inquiry in the present case was ultra vires the 1921 Act since, as was claimed, it is not in aid of the legislative process is unsustainable. Nor does it derive any support from the decision of the United States Supreme Court in Watkins v. US ,

174. As to the submission that the powers under the 1921 Act should only be used as a “last resort”, there is no room for doubt but that matters referred to in the terms of reference are “of urgent public importance”. The decision as to whether the machinery of the 1921 Act should be availed of to inquire into matters properly so described is left under the legislation to both Houses of the Oireachtas. This court unanimously held in Goodman International and Another v. Hamilton [1992] 2 IR 543 that a resolution of both Houses giving effect to such a decision was’ entitled to the same presumption of constitutionality as acts of the Oireachtas and bills upon a reference under Article 26 of the Constitution to the Supreme Court and that such a presumption derived from the respect shown by one organ of State to another and from the

175. It was submitted on behalf of the Plaintiffs/Appellants that the terms of the resolution were ultra vires the powers of both Houses of the Oireachtas as being “arbitrary, vague and oppressive” and that they did not identify a matter of urgent public importance.

176. The learned High Court Judge in the course of his judgment expressed his views as to how the terms of reference set out in the

177. The Salmon Report stated at para 79: -

178. The Court adopts that as a correct statement of the law and practice applicable to such tribunals in this jurisdiction. Accordingly, it does not find it necessary to decide whether any of the terms of reference are properly characterised as “vague” it will be for the Tribunal to determine, assuming that they are capable of more than one interpretation, which is to be the interpretation to be preferred in the light of the circumstances then prevailing.

179. The terms of the Resolution passed by both Houses of the Oireachtas clearly indicated the matters which they considered of urgent public importance.

180. This fact is clear from the recitals at the beginning of the Resolution which state:-

181. The disclosures contained in the said Report undoubtedly caused public disquiet, which was recognised by both Houses of the Oireachtas who considered it necessary for the purposes of allaying such public disquiet to resolve as provided in the said Resolution.

182. It cannot be suggested that the matters referred to therein were not of urgent public importance and that it was not within the jurisdiction of both Houses of the Oireachtas so to regard them and of the Taoiseach to appoint a Tribunal, whose principal function was to restore public confidence in our democratic institutions by having the most rigorous possible inquiry, consistent with rights of the citizens concerned into the circumstances which have given rise to the public disquiet in the present case.

183. In passing such resolutions, the Houses of the Oireachtas cannot be said to be acting arbitrarily or in abuse of power, as submitted on behalf of the Plaintiffs/Appellants in this case.

184. Having regard to the circumstances outlined in the report of the Dunnes Payments Tribunal and the effect thereof as outlined in the

185. It is however submitted on behalf of the Plaintiffs/Appellants that the terms of the resolutions and the inquiries directed as a result thereof violated their constitutional right to privacy.

186. There is no doubt but that the terms of reference of the Tribunal of Inquiry and the exceptional inquisitorial powers conferred upon such tribunal under the 1921 Act (as amended) necessarily expose the Plaintiffs/Appellants and other citizens to the risk of having aspects of their private life uncovered which would otherwise remain private, and to the risk of having baseless allegations made against them. This may cause distress and injury to their reputations.

187. There is no doubt but that the Plaintiffs/Appellants enjoy a constitutional right to privacy. What is in dispute in this case is the extent of such right to privacy and in particular whether it extends to the right to confidentiality in respect of banking transactions and whether the exigencies of the common good outweigh, in the circumstances of this case, such right to privacy.

188. The Constitution does not guarantee or in any way expressly refer to a right of privacy. The right to privacy in marriage was however upheld in the McGee case [1974] IR 284.

189. In the course of his judgment in Kennedy & Anor. .v. Ireland [1987] IR 587 Hamilton P. stated (at page 592): -

190. The right to privacy is not in issue: the issue is the extent of that right and whether that right extends to the confidentiality of a person’s banking transactions.

191. For the purposes of this case, and not so holding, the Court is prepared to accept that the constitutional right to privacy extends to the privacy and confidentiality of a citizen’s banking records and transactions. This is a right which is recognised at Common Law.

192. As stated by Lynch J. in the course of his judgment in National Irish Bank Ltd. and Anor. .v. Radio Telefís Éireann Supreme Court, 20th March, 1998, unreported): -

193. 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.

194. The exigencies of the common good require that matters considered by both Houses of the Oireachtas to be of urgent public

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

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

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

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

199. 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.

200. Consequently, this ground of appeal must also fail. Right to Equality of Treatment

201. It was further submitted on behalf of the first named Plaintiff/Appellant that the said resolutions discriminated against him thereby violating his constitutional right to equality of treatment.

202. In the course of his judgment, the learned trial judge stated that:-

203. The Court agrees with the views expressed by the learned trial judge and is satisfied that the terms of the resolutions complained of do not unjustifiably discriminate against the first named Plaintiff/Appellant.

204. It was further submitted that the said resolutions and the appointment of the Tribunal in pursuance thereof were ultra vires the jurisdiction vested in the Houses of the Oireachtas and the Taoiseach in that they violated the Plaintiffs/Appellants right to fair procedures.

205. It has been held in In re Haughey [1971] IR 217 that there is a constitutionally protected guarantee of basic fairness of procedures. It has also been held that:-

206. Both Houses of the Oireachtas in passing the Resolution and the Taoiseach in appointing the Tribunal in pursuance of the said Resolution and in providing that the 1921 Act (as amended) should apply to the inquiry were entitled to assume that the Tribunal would conduct its inquiry and all necessary proceedings in relation thereto in accordance with fair procedures and the principles of constitutional justice.

207. There was, consequently, no breach of fair procedures on the part of either the Houses of the Oireachtas or the Taoiseach. Consequently, this ground of appeal also fails.

208. It was submitted on behalf of the first named Plaintiff/Appellant that the resolutions and order hereinbefore referred to violated the constitutional privileges of the first-named Plaintiff/Appellant as Taoiseach or as a Minister.

209. It was submitted on his behalf that his decisions as a public office holder are not amenable to scrutiny in a tribunal of inquiry as the only forum which can scrutinise same is a parliamentary inquiry under Article 15.10 of the Constitution and that the Tribunal of Inquiry, established in this case, is not a parliamentary inquiry.

210. Article 15.10 of the Constitution provides that:-

211. It has already been held by the Court in its decision on the validity of the terms of the 1921 Act (as amended) having regard to the provisions of the Constitution, that this Article does not, in any way, limit the jurisdiction of both Houses of the Oireachtas to pass the resolutions passed by them or the power of the Taoiseach to appoint a Tribunal to inquire into the matters regarded by both Houses of the Oireachtas as of urgent public importance.

212. The matters of exceptional public importance therein referred to relate, inter alia , to any acts done or decisions made by the first-named

213. Appellant in the course of his ministerial offices to confer any benefit on any person making a payment referred to in paragraph (a) or any person who was the source of money referred in paragraph (b) or any other person in return for such payments being made or procured or directed any other person to do such an act or to make such a decision.

214. The terms of reference do not relate to or include utterances made by the first-named Plaintiff/Appellant in either House.

215. Consequently, he is not entitled to the benefit of the provisions of Article 15, sub-Article 13 of the Constitution which applies in respect of any utterance in either House.

216. The sub-Article provides that:-

217. In the course of his judgment in Attorney General .v. Hamilton [1993] 2 IR 250 , O’Flaherty J. took the view that the effect of Article 15.13 was that:-

218. The said provisions do not apply to acts done or decisions made by a member of either House of the Oireachtas.

219. It is quite clear that the privilege thereby granted relates only to utterances made in either House and do not relate, in any way, to acts done or decisions made.

220. As stated by the learned trial judge:-

221. The Court agrees with that passage from his judgment and is satisfied that the said Dáil privilege does not relate to acts done and decisions made by the first-named Plaintiff/Appellant as Taoiseach or as a Minister.

222. This ground of appeal must also be dismissed.

223. It was submitted on behalf of the first-named Plaintiff/Appellant that the terms of the resolution passed by both Houses of the Oireachtas was ultra vires their powers because it empowered the tribunal to adjudicate on matters of ethics which, it was submitted, should not properly be the subject of an adjudication by a tribunal of this nature.

224. When dealing with this issue in the course of his judgment, the learned trial judge quoted and accepted the written submission made by the State on this issue.

225. He quoted it in full as follows:-

226. He stated that he agreed with every line of that passage.

227. It is important to emphasise once again the nature and role of the Tribunal of Inquiry established in this case by order of An Taoiseach.

228. It is not to conduct a trial of the first-named Plaintiff/Appellant for alleged breaches of ethical behaviour as Taoiseach or as a Minister for the Government; neither does it involve an adjudication by the tribunal on such behaviour.

229. The role and purpose of the tribunal of inquiry is clearly set forth in the terms of the resolution passed by both Houses of the Oireachtas. It is “to enquire urgently into and report to the Clerk of the Dáil and make such findings and recommendations as it sees fit, in relation to the definite matters of urgent public importance set forth in the terms of the said resolutions.”

230. The role of the Tribunal is to inquire into the matters of urgent public importance and to report thereon to the Clerk of the Dáil.

231. Its role is purely investigative and consists of ascertaining and making findings in relation to the said matters of urgent public importance.

232. The tribunal of inquiry is required to make such recommendations as it sees fit. The making of such recommendations does not involve an adjudication on the behaviour, ethical or otherwise, of the first-named Plaintiff/Appellant.

233. Consequently, this ground of appeal also fails.

234. It was further submitted on behalf of the Plaintiffs/Appellants that the appointment by the Taoiseach of a Judge of the High Court as sole member of the Tribunal was ultra vires his powers as such appointment constituted an infringement of the separation of powers established by the Constitution.

235. As earlier pointed out the tribunal is not administering justice. Neither is it exercising an executive or legislative function. At the request of the legislature it is enquiring into certain matters of public importance. When it has performed its task it will send its findings and its recommendations to the Houses of the Oireachtas. Both Houses are not bound to accept any of the findings or any of the recommendations made by the Tribunal. In due course the members of the Dáil and the Seanad will no doubt debate the findings and the recommendations of the Tribunal. They may accept some of the findings and reject others or they may accept the findings but not the recommendations. Or they may even accept the recommendations but not the findings. In no sense therefore is the tribunal acting as a legislature, an executive or a Court of Law. The question of the separation of powers or a breach of the separation of powers or of the Constitution does not therefore arise.

236. Whether the Taoiseach or the Government ought to invite a judge to be a sole member or other member of such a tribunal is a policy matter on which the Appellants, like other citizens, are entitled to have their opinions. But it is a policy matter on which it would not be appropriate for this Court to express an opinion. This Court realises however the importance of the work which such tribunals may have to carry out in our system of Government and sees no constitutional or legal objection to a judge being a member, or the sole member, of such a tribunal provided he or she is willing to serve and provided his or her absence from his or her normal duties does not impose an undue strain on the work of his or her Court and has the approval of its President.

237. It is now necessary to deal with the Plaintiffs/Appellants allegations that the Tribunal is not being conducted in accordance with the principle of fair procedures.

238. In the Statement of Claim delivered on their behalf it is alleged that:-

239. The first named Defendant in the conduct of the Tribunal of Inquiry has acted in breach of the Plaintiffs’ constitutional rights and has abused his powers as chairman in that he has:

240. Seanad, and in particular how he has decided that the word ‘substantial’ equates to £500.

241. Plaintiffs’ affairs either personal or as a TD, Minister or Taoiseach.

242. Further, the Tribunal in conducting its proceedings in private is acting ultra vires the provisions of the said Act.”

243. The learned High Court Judge summarised the issues in relation to this aspect of the case as being an allegation made on behalf of the Plaintiffs/Appellants

244. It is necessary to set forth in some detail the conclusions of the learned trial judge on the issues raised on this aspect of the case. He stated that:-

245. He then quoted from paragraph 77 to 79 of the Report of the British Royal Commission on Tribunals of Inquiry which paragraphs were under the general heading “Terms of Reference”.

246. Paragraph 79 of the said report provided that:-

247. The learned trial judge adopted those views with one modification and stated:-

248. The learned trial judge then went on to consider what he described as

249. The learned trial judge then went on to deal with the question whether the Tribunal would be prima facie entitled to make orders of discovery in relation to the bank accounts, having regard to the constitutional right to privacy of the Plaintiffs/Appellants.

250. He then stated:-

251. He then proceeded to differentiate between the position in this regard of the first-named Plaintiff/Appellant and the other Plaintiffs/Appellants being “connected persons” within the definition of “connected persons” as contained in the Ethics and Public Office Act, 1995.

252. Having considered the position of the “connected persons” he then stated that:-

253. He further stated:-

254. With regard to the decision in this regard of the first-named Plaintiff/Appellant, the learned trial judge stated:-

255. He then went on to say that:-

256. On the issue with regard to the fact that the Tribunal had been carrying on its proceedings in private, the learned trial judge stated:-

257. The learned trial judge then refused the specific declarations and orders sought in the amended statement of claim but made the following limited declarations:-

258. The Plaintiffs/Appellants have appealed to this Court against the refusal of the learned trial judge to make the declarations sought by them and in this Court, on this aspect of the case, seek

259. Plaintiffs/Appellants constitutional rights and/or ultra vires the power conferred on him by the Tribunals of Inquiry (Evidence) Acts, 1921 to 1997; and

260. Before dealing with the issues raised in this aspect of the appeal, it is necessary to refer to portions of the correspondence exchanged between the Plaintiffs/Appellants and their solicitor and the solicitor to the Tribunal between the 5th day of November 1997 and the 18th day of December 1997 when proceedings were instituted on behalf of the Plaintiffs/Appellants.

261. By letter dated the 8th November 1997, the solicitor to the Tribunal sought from the first named Plaintiff/Appellant the information outlined therein and enclosed a copy of the terms of reference.

262. A reply thereto was sought on or before the 14th November 1997.

263. By letter dated the 14th day of November 1997, the first named Plaintiff/Appellant replied as follows:-

264. Subsequent to the 19th day of November 1997, all correspondence on behalf of the first named Plaintiff was dealt with by his solicitor.

265. In the course of such correspondence the first named Plaintiff/Appellant’s solicitor, inter alia , wrote as follows:-

266. By further letter dated the 28th November 1997, the Plaintiff’s solicitor stated, inter alia , that:-

267. On the 2nd day of December 1997, the solicitor to the Tribunal wrote to the first named Plaintiffs/Appellants’ solicitor as follows and in this case it is necessary to set out the full terms of the said letter because of the matters therein contained:-

268. It is clear from the terms of the said letter that the Tribunal considered that the requirements of fair procedures in the making of the impugned orders for discovery were complied with by affording any

269. In addition, the Tribunal stated that “it will not enter into debate about its Terms of Reference” and that “submissions may be made to the Tribunal by any person who has been granted representation,” thereby implying that the Tribunal would not entertain submissions to it on behalf of any person who had not been granted representation.

270. By letter dated 9th December 1997, the Plaintiff’s solicitor noted as follows:-

271. On this issue the solicitor to the Tribunal wrote on the 12th December 1997 as follows:-

272. By letter dated the 18th December 1997, the solicitor to the Tribunal wrote to the first named Plaintiffs/Appellants’ solicitor in the following terms:-

273. It is clear from the said correspondence that while the Tribunal was seeking information from the first named Plaintiff/Appellant the first named Plaintiff/Appellant was seeking clarification of the terms of reference.

274. The solicitor to the Tribunal was not willing to clarify the terms of reference or, on behalf of the Tribunal, to enter into any discussions with regard thereto.

275. The sole member of the Tribunal had adopted the attitude that he would not entertain submissions from any party who had not been granted representation before the Tribunal.

276. The first named Plaintiff/Appellant alleged that irrespective of the question as to whether he had been granted representation or not he was entitled to make submissions to the Tribunal in view of the nature of the inquiries being conducted by the Tribunal into what he alleged were his “private affairs”.

277. The relevant submissions on behalf of the Plaintiffs/Appellants herein may be summarised as follows:-

278. It was submitted that the conduct of the Tribunal in this regard was an abuse of power and in breach of the Plaintiff’s/Appellant’s constitutional right to fair procedures in that:-

279. It was submitted that this constituted a particularly serious breach of fair procedures, having regard to the fact that the Tribunal was inquiring into matters going back over an extremely lengthy period, thereby making it even more important for the Plaintiffs/Appellants to be given the earliest possible opportunity of investigating the matters which the Tribunal was concerned.

280. The Tribunal of Inquiry has been lawfully established pursuant to the resolutions of both Houses of the Oireachtas and the order made by An Taoiseach.

281. The provisions of the 1921 Act, as amended, apply to the Tribunal and it has been held by this Court in its decision pronounced earlier that the provisions of the said Act are not invalid having regard to the provisions of the Constitution.

282. The role of the Tribunal is investigative and the Tribunal is charged with the responsibility of inquiring into the matters of urgent public importance set forth in the said resolutions and make findings thereon.

283. Included in the powers conferred on the Tribunal of Inquiry is the power to

284. While the giving of such powers to the Tribunal was held by this Court to be valid having regard to the provisions of the Constitution, it was held that the relevant sections must be construed within the

285. Section 2 of the 1921 Act provides that:-

286. This section clearly recognises the right of the public or any portion of the public to be present at any of the proceedings of the Tribunal and prohibits the Tribunal from refusing to allow them to be present unless in the opinion of the Tribunal it is in the public interest expedient so to do for reasons connected with the subject matter of the inquiry or the nature of the evidence to be given.

287. A question arises as to the meaning of the term “the proceedings of the Tribunal”.

288. It was submitted on behalf of the Plaintiffs/Appellants that “proceedings” relate to all activities of the Tribunal including the preliminary investigation of the matters relating to the terms of reference.

289. A tribunal of inquiry of this nature involves the following stages:-

290. It can not be suggested or submitted that the public or any portion thereof are entitled to be present at this latter stage.

291. Neither can it be submitted that the public or any portion thereof are entitled to be present at the preliminary investigation of the evidence for the purposes of ascertaining whether it is relevant or not.

292. If these inquiries in this investigation were to be held in public it would be in breach of fair procedures because many of the matters investigated may prove to have no substance and the investigation

293. The Court is satisfied that such was not the intention of the legislature and that the “proceedings of the Tribunal” referred to in the said section relate merely to the proceedings of the Tribunal where evidence is given on oath, the witnesses giving such evidence being subject to cross-examination and the other matters at the public hearing.

294. The Court is satisfied that the Tribunal was entitled to conduct this preliminary investigation in private for the purpose of ascertaining what evidence was relevant and to enable the Tribunal in due course to serve copies of such evidence on the Plaintiffs/Appellants which it is obliged to do in order to enable them to exercise their constitutional right to be present at the hearing of the Tribunal where such witnesses will give evidence on oath and be liable to cross-examination.

295. With regard to the submission made on behalf of the Plaintiffs/Appellants that the impugned orders of discovery infringed the constitutional right to privacy of the Plaintiffs/Appellants and their right to confidentiality in respect of their banking transactions, the Court come to the following conclusions.

296. For the reasons already set forth in the course of this judgment dealing with the constitutional right to .privacy the Court is satisfied that the orders per se did not unjustifiably encroach upon the constitutional rights of the Plaintiffs/Appellants and at this stage repeats the statement already made by the Court that:-

297. The question however remains as to whether in the making of the said orders the Tribunal complied with the requirements of fair procedures.

298. While the Tribunal is entitled to conduct the preliminary stage of its investigations in private, and to make such orders as it considers necessary for the purposes of its functions, that does not mean that in the making of such orders, it was not obliged to follow fair procedures.

299. In the making of such orders the Tribunal had 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.

300. Fair procedures require that before making such orders, particularly orders of the nature of the orders made in this case, the person or persons likely to be affected thereby should be given notice by the Tribunal of its intention to make such order, and should have been

301. Such a procedure was not adopted in this case and the learned trial judge held that in the making of such orders the Tribunal did not act in accordance with the requirements of fair procedures.

302. The Court is satisfied that the learned trial judge was correct in his findings that the orders sought to be impugned herein made by the Tribunal were made in contravention of the requirements of constitutional justice and that fair procedures were not adopted by the Tribunal in the making of such orders.

303. Such failure was not remedied by the insertion in such orders of the provision that the person to whom the order was directed or any person affected thereby had the right to apply to the Tribunal to vary or discharge that order.

304. This is particularly so having regard to the circumstances of this case, the nature of the orders made and the time scale within which compliance therewith was ordered.

305. There may be exceptional circumstances, such as a legitimate fear of destruction of documents if prior notice was given, where the requirements of fair procedures in this regard may be dispensed with. No such circumstances exist in this case.

306. Each of the Plaintiffs/Appellants is entitled to the benefit of fair procedures and the Court is satisfied that the learned trial judge erred in

307. The learned trial judge refused, as a matter of discretion, to quash the said discovery orders stating that:-

308. While this approach by the learned trial judge may enjoy the attractiveness of being pragmatic and, indeed, realistic, it does not have regard to the seriousness of the breach of the Plaintiffs/Appellants’ right

309. The vindication of such rights requires that the impugned orders of discovery made by the Tribunal other than in accordance with fair procedures be quashed and that the Tribunal be deprived of the benefit of such orders and the Court will so order.

310. The following statement made by Ó Dálaigh C.J. in the course of his judgment in In re Haughey [1971] IR 21 7 at page 264 is particularly apt:-

311. The quashing by the Court of the said Orders made by the Tribunal does not preclude the Sole Member of the Tribunal from making similar orders in the future should it consider that the making of such orders is necessary for the purposes of its functions, provided that in the making thereof he applies fair procedures as outlined herein. Right to have Terms of Reference explained

312. The Court has already in the course of its judgment referred to paragraph 79 of the Salmon Report and adopted it as a correct statement of the law and practice applicable to such tribunals in this jurisdiction and adopted that as a correct statement of the law and practice applicable to such tribunals in this jurisdiction.

313. The Tribunal has not taken an early or any opportunity of explaining in public its interpretation of its terms of reference.

314. Having regard to the terms of the resolution passed by both Houses of the Oireachtas and the fact that he is named therein and likely to be affected, one way or the other, by the findings of the Tribunal, the first-named Plaintiff/Appellant is entitled to an explanation by the Tribunal of its terms of reference, certainly so far as they relate to him.

315. In the correspondence herein before recited, the Solicitors for the Plaintiffs/Appellants sought such an explanation but such explanation was refused by the Tribunal.

316. In this regard, it is necessary to refer only to one paragraph from the letter dated the 2nd day of December, 1997 written by the Solicitor to the Tribunal, which states as follows:-

317. One can understand why the sole member of the Tribunal declined to enter into private correspondence with the solicitors on behalf of the Plaintiffs/Appellants as to the interpretation to be placed upon the terms of reference. But for the reasons the Court has given the Plaintiffs/Appellants were entitled to such explanation which can, under the legislation and in accordance with the practice recommended by the Salmon Report, be given at an early public sitting of the Tribunal. Whether the Plaintiffs/Appellants attend that hearing of the tribunal in person or apply for leave to be represented at the hearing are not matters with which this Court is at this stage concerned.

318. In view of the stance being taken by the Tribunal in this regard, the Court is satisfied that the Plaintiffs/Appellants are entitled to

319. The Court accepts that such explanation may not be final and that it may be necessary for the Tribunal to explain any further interpretation it may place on the Terms of Reference in the light of facts as they may emerge.

320. The Plaintiffs/Appellants are entitled to this explanation and to seek clarification in respect thereof even though they have not sought or been granted representation before the Tribunal.