Committee Reports > List of Committees > Dáil > 1988 > Committee of Public Accounts > Special Report - Future role of the Comptroller and Auditor General and the Committee of Public Accounts

APPENDIX 1

LEGAL OPINION BY SENIOR COUNSEL9 May 1988

Office of the Comptroller and Auditor General

Article 33.3 of the Constitution in relation to the Comptroller is virtually identical to Art. 35.3 in relation to judges. Judges have, from time to time, been given duties in addition to their statutory or constitutional ones. Art. 33.6 provides that subject to the other provisions of Art. 33 the terms of the Office of the Comptroller shall be determined by law. In my view that provision entitles the Oireachtas to legislate to extend the functions of the Comptroller in the manner contemplated. I believe that there would be considerable difficulties on the Comptroller being given any powers or duties beyond those set out in Art.33.1 without legislation. I also believe that the extension should, to avoid a risk of infringing Art. 33.3, be by means of defining the role of the Comptroller in an extended fashion rather than creating another “office” to which the Comptroller could also be appointed.

To answer the specific queries:- [attached]

(a)I believe no difficulty exists provided this is done on a statutory basis;

(b)as in (a)

(c)this again should be on a statutory basis. In addition to extending the role of the Comptroller as in the other categories the power of the Comptroller to report to the Oireachtas should be statutory and should be in addition to rather than in substitution for the obligation to report to the shareholders. An express power to investigate and report on “value for money” aspects would also be required as such a function does not form part of the current powers and obligations of a Company Auditor or, so far as I am aware, any Auditor appointed to a state-sponsored body. Care would have to be taken to ensure that, in each case of a statutory body, any necessary amendments or additional provisions were included to effectively “marry” the role of the Comptroller with the already existing statutory scheme. This should not, however, cause any undue difficulty.

(d)Again permissable on a statutory basis.

I would finally enter one caveat. Neither Art. 33.3 nor Art. 35.3 have been the subject of litigation. In the absence of a judicial finding as to the proper interpretation of those Articles there must always be some doubt as to whether a strict interpretation (i.e. one limiting the holders of the relevant office from carrying out official functions other than those directly contemplated by the Constitution) or the interpretation which I favour and which I have set out above, would prevail. However, I take a fairly strong view that the “liberal” interpretation would, in fact, prevail if the matter came before the Courts.

COMPELLING OF WITNESSES

I see no problem in conferring a power to compel the attendance of witnesses or any incidental powers such as a requirement to produce documents or to answer questions. This power can be enforced by making it an offence (with appropriate sentence) to fail to attend under subpoena or to carry out other incidental directions. The Committee of Public Accounts of Dail Eireann (Privilege and Procedures) Act 1970 made such a provision in S.3 (1). S.3(4) provided for the punishment of persons in contempt by the High Court. In the Haughey 1971.I.R.217 the Supreme Court held that S.3(4) created an ordinary criminal offence. The section was found to be inconsistant with the Constitution for reasons of the unlimited nature of the penalty that could be imposed without a full jury trial. There is nothing in that decision which would prevent a similar section which either conferred a right to trial by jury or limited the penalty to a penalty appropriate for a minor offence from being consistant with the Constitution. For example the Employment Appeals Tribunal has, under S.39(17) of the Redundancy Payments Act, 1967 similar powers with provision for a fine of £20 on summary conviction although the penalty has subsequently been increased. I would suggest that section as a model.

PRIVILEGE OF WITNESSES

It is interesting that the 1970 Act above referred to conferred privilege upon witnesses (S.3(2). (It should be noted that the 1970 Act related only to the Committee while engaged in the performance of certain functions effectively confined to the investigation of the expenditure of a certain grant in aid for Northern Ireland relief. It did not apply to the generality of the Committee’s work). It should also be noted that witnesses before select committees of the English House of Commons have the benefits of absolute privilege C. F. Halsbury’s Laws of England Lit.Ed. Vol 28 para 103). As I read the debates on the 1976 Act there was no serious doubt as to the legality or constitutionality of the deleted section 3 (which would have conferred privilege on witnesses). There was doubt as to the advisability of conferring absolute privilege on witnesses who might abuse their position by making wild accusations under the cloak of privilege. It does not seem that the then Attorney General considered that there was any legal difficulty (see Senate Report). It is very doubtful if such a privilege exists at common law. I would therefore see no reason in principle why privilege could not be extended to witnesses. I do believe, as a matter of practicality, that consideration should be given to limiting that privilege. Members of the House, while not amenable to the Courts, are amenable to the House itself. Witnesses would not, nor could they constitutionally be made amenable to the House. It would therefore seem dangerous to confer a completely unqualified privilege. What limitations there should be would seem a question of policy rather than law but the following suggestions occur:-

(a)a removal of privilege for evidence given maliciously;

(b)no privilege for evidence not requested by the Committee i.e. if a witness were to volunteer evidence outside the scope of the Committee’s requests

(c)no privilege after a witness is requested to cease giving evidence

Such limitations would not seem to limit the usefulness of privilege to genuine witnesses but might prevent the abuse of privilege which could bring the privilege itself into disrepute.

Office of the Comptroller and Auditor General

Bearing in mind the constitutional provision under Article 33.1 that ‘there shall be a Comptroller and Auditor General to control on behalf of the State all disbursements and to audit all accounts of moneys administered by or under the authority of the Oireachtas’, legal opinion is sought as to the constitutional position vis a vis:-

(a)any extension of his responsibilities beyond the concept of a financial and regularity audit, on either a statutory or a non-statutory basis, to cover the so called value for money audit, that is an audit of

(i)the economy and efficiency with which organisations carry out their operations, and

(ii)the degree of effectiveness of the programme put in place to achieve policy objectives;

(b)the granting of access inspection rights to him in the case of organisations or individuals in receipt of moneys from the State for designated purposes whose accounts he does not audit

(c)his audit, of the accounts of

(i)State sponsored bodies where is is the appointed auditor by virtue of the enabling statute governing the activities of the body

(ii)State sponsored bodies where the relevant statute does not appoint him as auditor but where he is appointed by the Minister empowered under the statute to appoint an auditor of his choice with the consent of the Minister for Finance

(iii)State companies incorporated under the Companies Acts where he is appointed auditor by the company; including value for money aspects and reporting to the Oireachtas as distinct from the shareholder

(d)any extension of his mandate to cover the audit of the accounts of -

(i)‘mainline’ local authorities e.g. Co. Councils

(ii)health boards, vocational educational committees and harbour authorities including value for money aspects and reporting to the Oireachtas

Privilege for Witnesses etc.

Under Section 2 of the Committees of the Houses of the Oireachtas (Privilege and Procedure) Act, 1976 members of the House have immunity in respect of any utterance in or before a committee and all documents, reports, publications and utterances in a committee of the members, advisers, officials and agents of the Committee are privileged.

The Advisory Group understands that the 1976 Act does not extend immunity or privilege to witnesses appearing before the Committees.

An examination of the original Bill and Dail/Seanad debates in March 1976 revealed that the intention had been (a) to extend privilege to witnesses appearing before committees and (b) to impose legal sanctions on persons who refused to respond to a summons to appear before a committee or who refused to act as requested by the committee. It is clear from the debates at the time that there were doubts about the legality of giving such powers to a committee and those aspects of the Bill were deleted by agreement of the Dail members.

The Group, while appreciating the difficulties involved, believes that there may be a potential problem for the Committee of Public Accounts, or indeed any Oireachtas committee, if witnesses simply refuse to respond to an invitation to appear before the Committee.

While there have been no real difficulties in the past the Group feels that the rights of the Dail, through its committees, should not be undermined by lack of power in relation to summoning witnesses to appear as required from time to time, particularly where accountability for public monies is concerned.

Of equal importance is the protection of witnesses, their utterances and documents, when appearing before the Committee. The Group believes that the Committee should have the discretion to extend and withdraw privilege to witnesses. The main reason for this is that, if the Committee is to extend its role and undertake in depth examinations of any aspect of public expenditure, it must be in a position to extend privilege to witnesses as appropriate so that Committee reviews will not be hampered or inhibited through reticence on the part of witnesses due to a lack of such protection.