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Conduct of Oireachtas inquiry was ultra vires when capable of leading to adverse findings of fact

By: Mark Tottenham BL

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Supreme Court dismisses appeal from High Court, and: (a) affirms determination that a proposed inquiry by a select committee of the Houses of the Oireachtas into the fatal shooting of a man by members of An Garda Siochana was ultra vires; (b) grants a varied declaration that the conduct of the inquiry, which was capable of leading to adverse findings of fact as to the personal culpability of an individual not being a member of the Oireachtas was ultra vires; and (c) quashes directions to the applicants requiring them to attend before the committee.

Keane CJ (dissenting): Enquiry by sub-committee established by the Oireachtas - judicial review - application by members of An Garda Siochana subject to investigation - whether inquiry was ultra vires the Houses of the Oireachtas - history of inquiry - Order 78 of Standing Orders of the Dáil - power to appoint a select committee - Article 15.10 of the Constitution - incident giving rise to inquiry - fatal shooting of man by An Garda Siochana following stand-off - powers of committee - Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997 - terms of reference - power of Oireachtas to establish the committee - whether Oireachtas had an 'inherent power' to establish such a committee - whether a parliament had a bare power of adjudication - whether a public inquiry with the aid of the power of the State and conducted by members of the Oireachtas under the aegis of the Houses of the Oireachtas and with the authority thereof liable to result in finding of facts or expressions of opinions adverse to the good name, reputation and/or livelihoods of persons not members of such houses was ultra vires the powers of such houses - use of term 'adjudication' - justiciability - errors in the drafting of various orders and resolutions - fair procedures - findings of divisional court - right to cross-examine an accuser.

"The Committee in this case proposed to consider matters such as the amount of force used by the Gardai concerned in the operation at Abbeylara, the pathologist’s findings and the implications of those findings and to reach conclusions thereon. In the result, they clearly considered themselves entitled to reach a conclusion as to whether, in the light of the evidence which they heard, the Garda who fired the fatal shot in this case used more force than was reasonably necessary, a finding which, in a court of law, might support a verdict of unlawful killing. But the fact that the Committee could arrive at such a finding does not mean that they would be “adjudicating” on the issue, as that expression is properly understood, still less that they were arriving at a finding which was in any way whatever equivalent to the verdict of a court in criminal proceedings or, for that matter, the judgment of a court in civil proceedings arising out of the same event."

"Unless there were persuasive or binding authority to the contrary, I would have no doubt that the submission of the Attorney General to that effect was well founded and that the breadth of the declaration granted in the present case represents a constitutionally impermissible limitation on the powers of the Oireachtas in this area. Again, unless there were such authority to the contrary, I would also have no doubt that the inquiry proposed to be conducted in the present case by the Committee was both relevant to the constitutional functions of the Oireachtas and proportionate to the objectives sought to be achieved."

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

Denham J (majority decision): Power of Dail and Seanad to conduct a public inquiry - nature of inquiry - explicit power in Constitution - implicit power - inherent power - Westminster parliament - Washington parliament - Dublin parliament - right to protect and vindicate a good name - judicial activism - rule of law - bias -

" In construing the Constitution and protecting rights the courts do not have a role in legislating or writing a constitution. In this case the Attorney General, Counsel for the committee, and Mr. Shatter T.D. are asking this court to make a decision which would involve considerable judicial activism. They request that the court construe the Constitution so as to find an inherent power for the Houses of the Oireachtas to establish a committee system of legislative government to empower an inquiry of the type in issue."

"The Constitution gives no explicit power to the members of the Houses of the Oireachtas to hold an inquiry such as is in issue in this case. Nor does the Constitution imply such a power. Further, the members of the Houses of the Oireachtas do not have inherent power to hold such an inquiry."

Murphy J (dissenting): Ambiguous nature of orders sought by applicants - nature of statutory consent required.

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

Murray J (concurring with Denham J): Nature of inquiry being conducted - source of powers - whether sub-committee would be entitled to make a finding of 'unlawful killing' - whether rights affected - effect of 'findings' or 'opinion' of committee - whether a 'witness' should be considered a 'party' - inherent power - analogy with tribunals.

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

"The exercise of all governmental powers in the name of the State, by which ever organ of government is called upon to exercise them, can only be exercised by virtue of the Constitution of Ireland."

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

McGuinness J (concurring with Denham J): Power of inquiry - functions of the houses of the Oireachtas under the Constitution - justiciability - terms of reference of sub-committee - fair procedures.

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

Hardiman J: Public interest in inquiry - whether inquiry could be carried out on the basis of an unwritten but inherent power - direction to attend - issues in inquiry - 'unlawful killing' - findings of fact - consequences of findings of fact - whether findings were 'legally sterile' - whether inquiry authorise in law - UK precedents - 1922 position - other parliaments - analogy with tribunals - powers of Dail - delegation - new form of accountability - bias - cross-examination.

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

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

"The salient lesson from the HUAC (House Un-American Activities Committee) cases is that a person can be ruined simply by exposure and condemnation as much as by conviction. This, indeed, according to the minority in Barenblatt was the principal purpose and effect of the Committee’s activities. It is important, I believe, to realise that a body making findings of fact and authoritative pronouncements, but without the power to make actual orders or impose penalties, has its being and its effects wholly in the sphere of public opinion and private reputation."

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

Geoghegan J (concurring with Denham J): Inherent powers - historical origins of inherent powers - public discredit of parliamentary inquiries - protection of the 'good name' of the citizen - structural bias - 'sterile effect' of findings - form of declaration.

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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