Committee Reports > List of Committees > Joint > 2002 > Committee on Public Enterprise and Transport > Report - Sub Committee on CTC

TITHE AN OIREACHTAIS

HOUSES OF THE OIREACHTAS

JOINT COMMITTEE ON PUBLIC ENTERPRISE AND TRANSPORT

An Comhchoiste um Fhiontair Phoiblí agus Iompar

SUB-COMMITTEE ON THE MINI-CTC SIGNALLING PROJECT

An Fochoiste um an Tionscadal Comharthaíochta Lár-Rialú Tráchta Mionscála

INTERIM REPORT

4 April 2002

Table of Contents

Interim Report (Volume 1)

Foreword

On 3 July 2001 Dáil Éireann on application empowered this Sub-Committee, using compellability powers, to inquire into “The circumstances surrounding the entering into and the performance of the Iarnród Éireann mini-CTC and Knockcroghery signalling projects and the Esat/CIÉ cabling and telecommunications project and related matters …”

On 18 July 2001 the Sub-Committee commenced the evidence-gathering phase of its inquiry in public.

On 27 November 2001 the Sub-Committee concluded that it must, in circumstances set out in this Report, adjourn sine die. At that point the Sub-Committee had reached the closing stages of the evidence-gathering phase of its work. It would then have proceeded to prepare its Report, including findings and recommendations as appropriate.

This Report informs the Houses of the Oireachtas that regrettably its inquiry cannot now be completed. Why this has come to be so – and again, regrettably so – is set out in this Report and the implications as we see them are examined.

Central to the quandary into which the Sub-Committee has been put is the judgment of the High Court in Maguire & Others v Ardagh & Others (the Abbeylara case). On 23 November 2001, the High Court ruled that the Abbeylara parliamentary inquiry the subject of judicial review was ultra vires in that legislation conferring the power to inquire had not been enacted and there was no power to hold an adjudicative inquiry in the first place. The Court further ruled that the procedures of the Abbeylara Sub-Committee did not comply with the requirements of natural and constitutional justice.

We make the distinction between constitutional interpretation, properly a responsibility of the Courts, and constitutional policy, under our current Constitution the responsibility of the Oireachtas, and ultimately the people.

It is now for the Supreme Court to determine whether, under the current Constitution, there is an inherent power of inquiry in parliament and the extent to which procedures that we have developed and adopted are in conformity with constitutional and natural justice. Should the Supreme Court uphold to any significant extent the ruling of the High Court then, in our view significant issues of constitutional policy shall arise for the Houses of the Oireachtas and perhaps also for the people.

As a matter of constitutional policy an effective parliamentary power of inquiry is in our view essential to the relevance of parliament to public life in a modern-day representative democracy. Simply put, the parliamentary inquiry properly organised and conducted, is a natural extension of the legislative arm of government and it differs from other forms of public inquiry.

In this Interim Report, again from the perspective of constitutional policy, we make the case for such development of the committee system. It is in essence a “good thing”. Regrettably, parliament is perceived by some as being diminished in relevance, while the executive and judicial arms continue to develop. Furthermore, we believe that this model of inquiry can be a focused, cost-effective, expeditious and fair means of dealing with issues of important public interest, legislative proposals, public accountability of the executive and its agencies and value for money in respect of public monies, whether voted by the Dáil or raised from other sources.

Significant effort and resources were committed to this inquiry process and it is all the more regrettable therefore that we have been unable to conclude the task to which I believe we applied ourselves in a diligent manner. In this context I wish to acknowledge the contribution and application of my fellow Deputies on the Sub-Committee, Martin Brady TD, Austin Currie TD, Jim Higgins TD, Noel O’Flynn TD and Pat Rabbitte TD, who participated in public sittings for 26 days as well as numerous private sessions of the Sub-Committee – in all 102 meetings and a combined total of two hundred and thirty five hours.

I also wish to acknowledge and thank all of those who assisted and serviced our Sub-Committee: the Clerk of the Sub-Committee, Ms. Ita Ni Dhonnchadha and her staff; the staff of the Office of the Houses of the Oireachtas; the Clerk of the Joint Committee, Padraig Donlon; Mr. Art O’Leary, Head of Committees; our legal advisors, Mr. Frank Clarke SC and Mr. Felix McEnroy SC and Ms. Emily Farrell BL and our instructing solicitor, Mr. Kevin Kilraine, augmented when required by Mr. Henry Abbott SC, Mr. Paul Gilligan SC, Gerard Hogan SC, Mr. Alex Owens SC, and Mark O Mahony BL; our consultants, Chapman Flood Mazars represented by Mr. Eugene McMahon, Mr. Mark Kennedy and Mr. Eamon O Halloran; Dr. John Hill; and the personal assistants to the individual members, Mark Brennan, Paul Callaghan, Fionna Crawford, Eanna O Loinsigh, Finbarr O Malley and Feargus O Raghallaigh.

So many people contributed so much, at times in difficult circumstances. It is, again, a source of frustration for us all that ultimately we have been prevented from delivering on the mandate given us by the Houses of the Oireachtas.

At its meeting of 4 April 2002 the Sub-Committee agreed its Interim Report and instructed that it be laid before both Houses of the Oireachtas on Friday 5 April at 12 noon.

______________________________

Sean Doherty TD

Chairman

5 April 2002.

Part One – Preliminary

1.1This is an interim report from the Sub-Committee on the mini-CTC signalling project established by the Joint Committee on Public Enterprise and Transport. It reports that we have not to date completed the inquiry which we were charged to undertake and that we shall not, in the circumstances that have now arisen, complete the inquiry. Legal events combined with the legal timescale and the political calendar have combined to thwart us in our task.

1.2We would stress that non-completion of the Inquiry is due to forces and events outside our control. These forces and events are in the main in the legal realm and have acted to delay and then to interrupt our work. Principal among them is the outcome and consequences of the High Court judicial review in the case of Maguire and Others v Ardagh and Others (“the Abbeylara decision”) and the impact of that judgment, delivered on 24 November 2001, on our Inquiry. This was the second time that the High Court made an Order directly affecting the functioning of the mini-CTC Inquiry. The text of the judgment is to be found at Appendix One.

1.3Our Sub-Committee was not a party in the Abbeylara case although the decision does make reference at page 88, to our Sub-Committee as well as to the proceedings involving our Sub-Committee then (and still) outstanding at the High Court.

1.4Those proceedings centre on the action of the family of the late Mr. Michael McDonnell, former Chief Executive of CIÉ, against the Sub-Committee – McDonnell v Brady and Others. At the time of writing the substantive case (judicial review of the work of our Inquiry) has not been assigned a hearing date.

1.5In giving leave to the family of the late Mr. Michael McDonnell (the applicants) for that judicial review on 3 October 2001 Mr. Justice Kelly made an Order putting an immediate stay on our public proceedings. This caused a suspension of our Inquiry pending appeal. A copy of the Order is to be found at Appendix Two of this Report.

1.6After application to Mr. Justice Kelly, and to the President of the High Court, Mr. Justice Morris, the Sub-Committee’s application to remove the stay imposed on our proceedings was heard, on notice to all interested parties, by Mr. Justice O’Caoimh. On 15 October 2001 Mr. Justice O’Caoimh ordered the removal of the ex-parte stay on the Sub-Committee’s proceedings. A copy of the transcript of that judgment is included at Appendix Three.

1.7At the suggestion of the President of the High Court, an application was made by the Sub-Committee to Mr. Justice Kelly to permit the evidence of two witnesses to be taken on commission by Mr. Christopher Meehan, Barrister-at-Law. These witnesses had traveled to Ireland at the request of the Sub-Committee from the United States and Taiwan respectively to give evidence to the Inquiry. Mr. Justice Kelly permitted a variation of his Order staying the inquiry so that this evidence would not be lost. On the night of 5 October, and into the early hours of the morning of the following day, the evidence was “taken on commission”, and held in escrow pursuant to the High Court Order.

1.8The family of the late Mr. Michael McDonnell appealed the decision of Mr. Justice O’Caoimh to the Supreme Court and on 31 October 2001 that court upheld the decision of Mr. Justice O’Caoimh. The Sub-Committee was, as found by the Supreme Court, part of the legislative arm of Government.

1.9In its judgment, delivered by Keane CJ on 31 October 2001, it is stated at page 24 that, “This sub-committee, having been established by a joint Oireachtas committee, must be regarded as part of the legislative arm of government. While it has been made clear on more than one occasion that the respect which each branch of government owes to the other branches will not inhibit the judicial branch from intervening where the Constitution is being violated by either or both branches, I am satisfied that such a situation has not been reached in the case of the sub-committee.”The full text of the Supreme Court decision is to be found at Appendix Four.

1.10It is clear from the above that our Sub-Committee has found itself directly and indirectly embroiled in or affected by legal challenges to the system of Parliamentary Inquiry. In this respect the experience of this Parliamentary Inquiry (and the Abbeylara Inquiry) differs from that of the first Inquiry to be conducted under the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997 and the Comptroller and Auditor General and Committees of the Houses of the Oireachtas (Special Provisions) Act, 1998, that of the Committee of Public Accounts Sub-Committee on Certain Revenue Matters (the DIRT Inquiry).

1.11It is well known that the life of the 28^th Dáil has reached the point at which its dissolution and a General Election is imminent. This combined with the legal events outlined above, ensures that the Parliamentary Inquiry that the Sub-Committee was charged to undertake cannot now be completed. The risk identified by the Supreme Court in October 2001, at page 20 of its decision, in respect of the continuation of the stay then in place, that, “given that the Oireachtas is in the last months of its present term, the risk that the sub-committee will not have completed its inquiry and published its report prior to the dissolution of Dail Eireann … is a real one, which must affect any determination as to where the balance of convenience lies”, has crystallised.

1.12At the outset we wish to make it clear that what follows is our own considered reaction to the challenges to our proceedings and the Abbeylara judgment, as it affects our work and the workings of the Oireachtas in general. We have not sought or received any input from the Abbeylara Sub-Committee. We have however consulted with our counsel. Legal counsel are of course free to advance in court a succession of arguments, some of them in the alternative, so long as they reasonably advance their clients’ position. However, to the extent that we deal with propositions of law, we confine ourselves here to setting out those propositions which seem to us most comfortably, consistently and coherently to accord with our own practically acquired experience of the system of public administration that is provided for and governed by the Constitution, and our relative position as parliamentarians within that system.

1.13This interim report is confined in the main to reporting to the Houses of the Oireachtas the implications for our Inquiry and for the Oireachtas in general of the Abbeylara decision as they appear to the Sub-Committee, including in the light of and in interaction with our own proceedings outstanding, McDonnell v Brady & Others.

We do not deal with, touch on or report upon the substance of our Inquiry (“the mini-CTC Inquiry”) or the merits of the proceedings pending against the Sub-Committee. However it is appropriate to outline briefly the background to our establishment and our inquiry and the principal milestones in the Inquiry, which we do in Part Two of this report.

Structure of this report

1.14In Part Two we provide an outline of the mini-CTC Inquiry.

1.15In part Three we outline certain aspects of the Abbeylara decision, paying particular attention to the decision as relevant to the functioning of our Sub-Committee and its Inquiry.

1.16Part Four deals with the implications of the Abbeylara decision for our Sub-Committee as it appears to the Sub-Committee. The impact of the judgment was outlined in brief in the Opening Statement of the Chairman on 27 November 2001. This Part extends that discussion.

1.17Part Five considers the wider implications of the Abbeylara decision for the Houses of the Oireachtas.

1.18In Part Six we set out our thoughts on the doctrine of the separation of powers and the power of parliament to inquire.

1.19In Part Seven, we provide some discussion of procedural law and our rules of procedure.

1.20Finally, in Part Eight we make some brief concluding remarks and in Part Nine we set out our Orders of Reference and the membership of the Sub-Committee and the Joint Committee on Public Enterprise and Transport.

Part Two – The mini-CTC Inquiry

2.1The proximate cause of our inquiry was the apparent over-run against budget and the delay in the completion of a centralized traffic control and signalling system (the mini-CTC) for more lightly used rural sections of the rail network of Iarnrod Éireann. During the course of the evidence gathering public phase of our Inquiry the contract for the construction of the mini-CTC, entered into by Iarnrod Éireann in July 1997 with the Italian/Irish consortium, Sasib/MNL, was abandoned.

2.2At around the same time as the start up of the mini-CTC installation work, a rural railway crossing at the village of Knockcroghery in County Roscommon required to be relocated and resignalled, which contract also went over budget and time. Furthermore, Iarnrod Éireann’s parent body, CIE, had entered into an arrangement with the telecommunications company Esat, for the laying trackside along the entire length of the permanent way of a national fibre optic telecommunications backbone to be owned by Esat. All three of these actions were separate but also to some degree or another interconnected.

2.3On 26 October and 7 November 2000, following media reports, the Joint Committee on Public Enterprise and Transport examined the cost overrun against budget and the delay in completing the mini-CTC and issues relating to the Esat arrangement. The Joint Committee was concerned in the public interest to establish what the facts were. There was furthermore on 19 October 2000 a request to the Joint Committee by the Minister for Public Enterprise, Mrs. Mary O Rourke, TD to have the issues involved examined. The parties examined were the Department of Public Enterprise and CIÉ/Iarnród Éireann. Under the rules of procedure of these Hearings the witnesses from both organisations who testified were not compelled and did not have absolute privilege.

2.4One witness at those initial Hearings was the late Mr. Michael McDonnell, then Group Chief Executive of CIÉ and Chairman of Iarnrod Éireann. Mr. McDonnell subsequently resigned from his positions at CIÉ Group and on 8 April 2001 died tragically. We wish again to put on record and acknowledge the assistance given to the Joint Committee by the late Mr. McDonnell and his co-operation with the Joint Committee in its consideration of the issues in question.

2.5The outcome of these hearings and subsequent deliberations of the Joint Committee was a decision to establish the Sub-Committee and to have an examination in private carried out on its behalf by the firm of accountants, Chapman Flood Mazars (CFM), the appointed consultants. CIÉ co-operated with this phase of our work, making significant voluntary disclosure to the Committee.

2.6Following the establishment of the Sub-Committee compellability powers were granted on application by the appropriate Sub-Committee of the Joint Committee on Procedure and Privilege (CPP) in April 2001.

2.7Subsequent to the original grant of powers of compellability on 11 April, directions were issued by the Sub-Committee on 24 April 2001 to relevant parties. A number of parties made representations in the process of complying with the Orders of the Sub-Committee concerning time limits for the discovery of documents.

2.8Furthermore, additional information coming to the attention of the Sub-Committee led it to seek an expansion of its orders of reference. In early May 2001, in light of these developments and in the interest of fair procedure the Sub-Committee decided to withdraw the directions already given to parties.

2.9It also sought an amended Order of Reference (expanded orders of reference) and to resubmit its application for compellability powers to the Joint Sub-Committee on Compellability of the Committee on Procedures and Privileges of Dáil and Seanad Éireann, in other words to start afresh. Parties were informed of the decision by the Sub-Committee to withdraw its original directions and that fresh directions would be given at an early date. In the meanwhile they were asked to continue with the discovery process pending re-direction.

2.10Following the passing of motions by Dáil and Seanad Éireann on 24 May 2001, the orders of reference of the Sub-Committee were changed and a fresh consent was given by the Joint Sub-Committee on Compellability of the Committee on Procedures and Privileges of Dáil and Seanad Éireann on 14 June 2001.

2.11Our Orders of Reference required that “The circumstances surrounding the entering into and the performance of the Iarnród Éireann mini-CTC and Knockcroghery signalling projects and the Esat/CIÉ cabling and telecommunications project and related matters be inquired into and reported on by the Sub-Committee on the mini-CTC Signalling Project to the Joint Committee on Public Enterprise and Transport, taking into account progress already made on the matter by the Joint Committee and any Sub-Committees thereof.”

2.12Parallel with the establishment of our Inquiry there was also established by the Oireachtas a second, unrelated Inquiry. This was into the events of 19 and 20 April 2000 at Abbeylara, the fatal shooting by Gardai of Mr. John Carthy at Abbeylara on 20 April. Following the shooting there was an internal Garda inquiry into all of the circumstances surrounding the events at Abbeylara. The report was submitted to the Commissioner of the Garda Siochana and the Commissioner in turn, submitted his report to the Minister for Justice, Equality and Law Reform. The Minister referred the Commissioner’s report to the Oireachtas, following which both Houses referred it to the Joint Committee on Justice, Equality, Defence and Women’s Rights. The Joint Committee established a Sub-Committee and the Sub-Committee embarked on an inquiry on 24 April 2001.

2.13During the Abbeylara Inquiry nine Garda witnesses indicated their intention in the circumstances to apply for Declarations under the compellability legislation relieving them from attending and giving evidence to the Inquiry on 27 April 2001. Subsequently they joined with a number of other Garda witnesses in legal proceedings against the Sub-Committee, by way of judicial review.

2.14The challenge to the Abbeylara Sub-Committee did not at that stage affect our work. On 18 July 2001 there was held a preliminary hearing of the mini-CTC Inquiry at which the Chairman made a lengthy Opening Statement in which were detailed the membership of the Sub-Committee, the composition of the Sub-Committee’s legal and financial advisors, the purpose and framework of the Inquiry and the issues to be inquired into.

2.15At the preliminary hearing also applications for the right of audience were invited and considered. It then adjourned until 10 September 2001 when it commenced the evidence-gathering phase of its inquiry.

2.16One aspect of the decisions taken in relation to applications for right of audience deserves mention. This was the decision in relation to the application made on behalf of the widow and family of the late Mr. Michael McDonnell to be granted representation at the evidence gathering phase of the Inquiry. Her concern was, appropriately and understandably, to defend her late husband’s reputation against unjust attack. While of the view that they were not strictly required in law to grant her application the Sub-Committee, honourably, allowed her to be legally represented. Her legal representatives were therefore entitled to cross-examine any witness whose evidence might be damaging to the interests she sought to represent and all relevant papers and documents discovered to the inquiry were made available. In all of this, as was remarked by the Supreme Court in its decision of 31 October, “she is clearly in a significantly different position from those persons still alive who have an admitted and indisputable constitutional right to the vindication of their good name”and it was“beyond doubt that the applicant [Mrs. McDonnell] has been afforded important safeguards which will be of assistance to her in defending her late husband’s reputation against unjust attack.”

2.17On 10 September 2001 the Sub-Committee commenced its public hearings – the taking of sworn evidence from witnesses representing parties.

2.18On 3 October 2001 and during the evidence-gathering phase of our inquiry the family of the late Mr. Michael McDonnell commenced legal proceedings against the Sub-Committee. As has been mentioned previously, the High Court in granting the family leave to apply for judicial review put a stay on our proceedings. While this stay was being appealed the hearings were obviously adjourned. In the interim however, Mr. Justice Kelly did vary the stay to allow for the taking of testimony of two witnesses, Mr. Padraic Casey of Norcontel and Mr. Jarleth Burke, who had worked with Esat during the relevant period, to be taken on commission on October 5-6, 2001. Both these witnesses had traveled to Ireland especially to attend and give testimony to the Inquiry.

2.19After the injunction was lifted by the High Court on 15 October 2001 the inquiry remained adjourned pending the decision of the Supreme Court on appeal. The hearings finally resumed on 6 November 2001 after the Supreme Court confirmed the decision of 15 October 2001 of the High Court. Parallel, the Abbeylara case was concluded and the decision of the Court was awaited. The decision was announced on Friday 24 November 2001. It ruled comprehensively in favour of the Gardai.

2.20Having considered the implications of the Abbeylara decision, on the morning of Monday 27 November 2001 the Chairman outlined the implications for our work by way of a Statement and decision which announced an adjournment sine die of our hearings. The transcript of the proceedings of 27 November of the Sub-Committee, including the Chairman’s Statement and decision, is included in this Report at Appendix Five.

2.21Up to and including its adjournment sine die on the morning of 27 November the Sub-Committee sat in public a total of 26 days. In addition, on the evening and night of 5-6 October evidence was taken on commission by order of the High Court.

2.22On the morning of 27 November the Sub-Committee was in the closing stages of the evidence-gathering phase of the inquiry. By that point the Sub-Committee had sat in public for a total of 26 days including the Preliminary Hearing of 18 July. Some 75 witnesses had given testimony. Aside from a number of relatively minor evidential matters the only evidence to be heard at the point of adjournment was the conclusion of the cross-examination of two witnesses by Mr. Patrick Rowan on behalf of the family of the late Mr. Michael McDonnell, who had been granted legal representation at our hearings. There was then to be heard closing submissions from persons concerned in the inquiry. At that point the public phase of the Inquiry would have concluded and we would have adjourned to prepare and consider our report.

2.23In the wake of the High Court judgement the Abbeylara Sub-Committee decided to appeal the decision to the Supreme Court. It secured an early hearing for the Appeal. The case commenced on 15 January and concluded on 22 January 2002. Judgement was reserved. In these circumstances our Sub-Committee remained in existence in the hope of an early Supreme Court decision, which might reverse the decision of the High Court.

2.24The interaction between the Abbeylara proceedings and judgement and the litigation against our own committee caused delays and interruptions in our Inquiry. Furthermore, the interaction has come to be such that we now find ourselves unable to complete our Inquiry. Critically, while the Supreme Court gave Abbeylara an early hearing, it has yet to give its judgement. Secondly, the High Court has not been able to give us a date for our own judicial review. Furthermore, we gave an undertaking to the High Court that there would be no report published pending the hearing of our case. This was in the belief that we would get an early hearing and that in any case we would be able to finish out our hearings and prepare, if not publish, our report in the lifetime of this Dáil. Our best hopes have not come to pass and our worst fears have been realised. The great risk that emerged – that the legal timescale might not match the parliamentary – has crystallised.

2.25In early March the Sub-Committee decided that we had reached the point in all of the circumstances that it was not now possible to conclude the inquiry. Furthermore we decided that an interim report to the Houses of the Oireachtas was not only appropriate but also necessary in the circumstances.

Cost of Inquiry to date

2.26Apart from the importance of our Inquiry from the standpoint of holding the system of public administration to account there is also the considerable amount of public monies that have been expended in conducting the examination. We have had to have command over significant public resources in order to pursue our examination of the mini-CTC project and related matters including the Esat contract.

2.27Officers in a number of Departments and public bodies have had to devote time and resources to complying with discovery orders and testifying to the Sub-Committee. Other, private, bodies and individuals have also had to comply with discovery and testify at our hearings. The Office of the Houses of the Oireachtas has also had to devote resources to secretariat and technological support. There was the need to employ legal advisors and financial consultants. Our Inquiry took significantly longer than anticipated to get as far as it did, due to the legal cases and challenges that affected our work. Additional secretariat, technical and advisory and legal resources were therefore required and there was the cost of representation of the Sub-Committee at a number of court hearings.

2.28It is estimated on an interim and incomplete basis that our costs to date are in the order of €1.56m. This is an incomplete estimate. It is a ‘paid to date’ figure, which must be stressed. It does include the paid cost to date of the financial advisors and legal advisors as well as the personal assistants to the Members of the Sub-Committee. It also does include an estimate of print and stationary costs to date and IT costs. It does not as yet include the full cost of the secretariat, the cost of overtime grades or reporting staff. In respect of legal costs it does not include any estimate of imponderables such as the cost of discovery or other legal costs that may arise in the future. However it is a significant sum, to which may be added the costs of discovery incurred by parties for which the inquiry may be liable and other legal costs that may also be incurred.

2.29In respect of all of this the Sub-Committee wishes to put on record its appreciation of the attitude of the Minister for Finance, Mr. Charlie McCreevy and the officers of the Department of Finance, the good will and additional resources that they extended to the Sub-Committee when the need arose. However, and to repeat a point made by the PAC Sub-Committee in its final report, this experience does not take from the fact that we were dependent on the good will of the Government even if always forthcoming.

2.30Our experience in regard to resources closely mirrors that of the DIRT Sub-Committee – an insufficiency of resources combined with forthcoming good will in Government. We would also echo the remarks of the final report of the DIRT Inquiry that,

“The main argument for the strengthening of the Houses of the Oireachtas is that it enhances public accountability. A vigorously active and independent parliament with the powers to investigate matters of serious public importance will ensure that the systemic abuses and breakdowns of good government highlighted by this [DIRT] Inquiry, the Tribunals and other inquiries, makes it much less likely that it will happen again.”

Parliamentary Inquiry into DIRT,

Final Report, p92.

2.31The Government has accepted the principal recommendations for parliamentary reform made by the DIRT Inquiry. These include the establishment of an Oireachtas Commission to oversee and have responsibility for the budget of the Houses of the Oireachtas. In this regard, it was stressed by the DIRT Sub-Committee in its two main reports (and accepted) that the resourcing of Oireachtas Members fell far short of the international norm and that there was a corresponding need to increase the financial resources of parliament and parliamentarians. The Oireachtas Commission and the improved resourcing of parliament have yet to be provided for. However publication of the legislative proposals is now imminent. On Tuesday, 19 March last the Secretary General of the Department of Finance, Mr. Tom Considine, informed the Committee of Public Accounts that publication of the Bill was expected before Easter. He said that under the proposed new dispensation, “a specified sum of money will be a charge on the Central Fund, to meet the current budget requirements of the Office of the Houses of the Oireachtas for three years. The management of the Office of the Houses of the Oireachtas will be entrusted to an independent Commission consisting of the Chairmen of both Houses, a Minister’s representative, four members of Dáil Éireann and three Senators together with the Clerk of the Dáil. We are now at a stage where we expect to put the Bill to the Government with a view to publishing it before Easter.”¹

2.32In his oral evidence Mr. Considine also informed the PAC that the international benchmarking of the current budget of the Office of the Houses of the Oireachtas and supports for Members of the Houses was close to finalisation and that the outcome of this benchmarking would be input to establishing an appropriate level of funding for the Oireachtas and its Members.

2.33These announcements and decisions are very much welcome. We shall examine with interest the proposals of the Bill, not least in respect of what is to be provided for by way of support services for parliamentary inquiries under the new system. For example we are convinced that there is a need to provide in statute for a preliminary exercise to be carried out by an appropriate firm or public office or agency such as the C&AG. This would greatly focus and expedite the hearings and ensure that the issues of central importance are brought to the fore at a formal preliminary stage of inquiry. In the light of our own experience this is a vital aspect of the proposed new order for the national parliament. This issue was dealt with in the reports of the DIRT Inquiry. Again echoing the reports of the DIRT inquiry we recommend the incorporation of such provisions in the Bill to establish the Oireachtas Commission.

2.34There are many detailed observations that the Sub-Committee might make in respect of the functioning of parliamentary inquiries in general on the basis of its experience in the mini-CTC inquiry. They relate to such issues as the management and administration of the Discovery process, the adequate resourcing, in terms of personnel, independent, expert professional advice (including legal and other advice) and technological support in the particular context of conducting inquiries (as opposed to the ‘normal’ work of committees). They perhaps come down to one thing – the need to have a scheme and systems in place to properly and effectively support the parliamentary inquiry process as distinct again from the normal work of committees. These deserve examination, perhaps by a select committee, in the context of enacting the Bill to establish the Oireachtas Commission.

2.35We attach enormous importance to the organic evolution of the parliamentary system of inquiry in support of both the legislative function of the national parliament as well as the scrutinising role of the Dáil under the constitution. There is a detailed consideration of the role of the parliamentary inquiry in the functioning of the national parliament in Part Six of this interim report. We attach critical importance to paragraphs 6.66 to 6.69 in particular.

Legal costs

2.36The question of costs has arisen as an issue in the course of our Inquiry. The costs issue was dealt with in the Opening Statement of 18 July 2001. The Statement outlined, on the basis of our legal advice, at paragraph 146, the position as it appears in law to be.

“The Sub-Committee has no power under the 1997 Act to make an award of costs. However the Sub-Committee’s legal advisors have given the following advice on this question. Please note that this is a legal opinion only and it is of course for any person to take appropriate advice on the issue.

“Section 3(2) of the 1997 Act permits “the reasonable expenses” of any person giving evidence on foot of a Direction, or to enable such persons to correct factual errors, or clarify matters for the purposes of clearing their name, to be paid. The extent of that right is not defined in the Act. It is for the Minister for Finance to determine from time to time how such expenses should be paid. It may be that persons who are permitted to have legal representation for the purposes of participating in the Sub-Committee’s work would have the reasonable costs of such legal representation paid by the Minister for Finance under such heading of “expenses”. It may well further be that the Minister for Finance might have regard to any findings of the Sub-Committee in relation to whether such person or body cooperated with it in its enquiries in determining the extent to which such expenses might be met. However it is important for the Sub-Committee to point out that it has no formal role in the granting of such expenses which are under the legislation a matter for the Minister.

“Furthermore it should be noted that a number of parties have already raised with the Sub-Committee the question of the costs of making Discovery. The Sub-Committee has already sought the views of the Minister for Finance on this issue.”

2.37Subsequently, arising from queries raised by a number of parties concerning provision for the payment of costs associated with compliance with the directives of the Sub-Committee, sanction was obtained from the Minister for Finance for the payment of the costs of making discovery on foot of the directives of the Sub-Committee. Such payments may only be made on foot of a recommendation by the Sub-Committee. In order to make such recommendations the Sub-Committee requires to be satisfied that the party concerned has complied with all obligations under the compellability legislation. In case of any dispute as to quantum, the issue is to be referred for final determination to a Cost Drawer nominated by the Chief State solicitor. Such costs are in addition to the travel and subsistence entitlements of any person directed to attend to give evidence.

2.38The issue of costs is now one of the matters to be determined in the proceedings pending against the Sub-Committee in the High Court. In the circumstances the Sub-Committee does not feel it appropriate to make further comment on either the facts, or the case which it will seek to make.

2.39On the issue of costs, it was stated by the Supreme Court, at page 23 of its judgment, that

“It is not for this court, at this stage of the proceedings, to adjudicate on the correctness of that view in law, any more than it was for the High Court. It is sufficient to say that, if the applicant is found to be entitled, either as a matter of constitutional right or by virtue of the provisions of the 1997 Act, to be paid the costs of legal representation in these proceedings, she will be entitled to an appropriate declaration to that effect which will no doubt be acted upon by the Minister for Finance. It is clearly not, however, a ground on which, at this stage, the entire proceedings of the sub-committee could be stayed.”

Part Three – The Abbeylara decision

3.1On 24 November 2001 the High Court delivered its decision in the Abbeylara case. In that case 36 officers of An Garda Siochana (the Applicants) sought a judicial review of the actions of a Sub-Committee of the Joint Oireachtas Committee on Justice, Equality, Defence and Women’s Rights, established to inquire into the internal Garda report on the Abbeylara incident (the Abbeylara Sub-Committee).

3.2The Abbeylara case may be traced back to the Abbeylara incident, the fatal shooting by Gardai of Mr. John Carthy at Toneymore, Abbeylara in the County of Longford on Thursday 20 April 2000. Following the shooting there was an internal Garda inquiry into all of the circumstances surrounding the events at Abbeylara. A report of that inquiry was submitted to the Commissioner of the Garda Siochana and the Commissioner in turn, submitted his own report to the Minister for Justice, Equality and Law Reform. The Minister referred the Commissioner’s report to the Oireachtas, following which both Houses referred it to the Joint Committee on Justice, Equality, Defence and Women’s Rights.

3.3The Joint Committee established a Sub-Committee and on 24 April 2001 the Sub-Committee embarked on an inquiry using the compellability powers conferred by the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997 and the Comptroller and Auditor General and Committees of the Houses of the Oireachtas (Special Provisions) Act, 1998.

3.4On 27 April 2001 nine Garda witnesses indicated their intention in the circumstances to apply to the Secretary of the Government, under sections 5(e) and 7(d) of the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act 1997, for Declarations relieving them from attending and giving evidence at the Inquiry. At that point the Sub-Committee adjourned its proceedings. Subsequently these Gardai chose not to proceed with their application to the Secretary of the Government. Instead, some thirty six Gardai including the nine who had proposed to apply for the Declarations, all witnesses at the Inquiry, chose to institute legal proceedings against the Sub-Committee, by way of judicial review. An ex parte application for leave to apply for judicial review was made on 21 May 2001. The action was heard between 17 July 2001 and 16 October 2001 (including an adjournment for the long vacation).

3.5Joined with the Abbeylara Sub-Committee were Ireland and the Attorney General. The Applicants sought fourteen reliefs the effect of which if granted, would put an end to the Abbeylara Inquiry and indeed to the parliamentary system of inquiry established by the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997 and the Comptroller and Auditor General and Committees of the Houses of the Oireachtas (Special Provisions) Act, 1998. In particular the first and second reliefs sought by the applicants were explicit.

3.6The first relief sought by the applicants was for “A declaration that the conduct of a public inquiry with the aid of the power of the State (including the power to compel the attendance of witness and to compel the production of documents) 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 findings of facts or expressions of opinion adverse to the good name, reputation and/or livelihoods of persons not members of such Houses is ultra vires the powers of such Houses.” The second relief sought “A declaration that public inquiries delivery of reports findings of fact or expressions of opinion under the aegis and with the authority of and enforced by the power of the State (including the power of compulsory attendances of witnesses and discovery of documents) liable to result in adverse purported findings of fact or expressions of opinion may not consistent with the principles of constitutional justice and fairness by conducted by a tribunal comprised of elected officials.” A total of fourteen reliefs were sought by the applicants.

3.7The Abbeylara judgement was delivered on 24 November 2001. It ruled comprehensively in favour of the Gardai.

3.8In ruling in favour of the applicants on 24 November the Court made seven Orders.

1.A declaration that the conduct of 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 findings of fact or expressions of opinion adverse to the good name, reputation and/or livelihoods of persons not members of such House is ultra vires the powers of such Houses.

2.A declaration that the sub-committee of the Joint Oireachtas Committee on Justice, Equality, Defence and Women’s Rights purportedly convened by resolution of the said Joint Committee in purporting to report on and investigate the Abbeylara incident has acted ultra vires the powers conferred by the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997.

3.A declaration that the sub-committee of the Joint Oireachtas Committee on Justice, Equality, Defence and Women’s Rights purportedly convened by resolution of the said Joint Committee in purporting to report on and investigate the Abbeylara incident has acted ultra vires the powers conferred by the resolution of Dáil and Seanad Éireann of 25 October 2000.

4.An Order of Certiorari quashing the resolution of the Joint Oireachtas Committee on Justice, Equality, Defence and Women’s Rights on 10 April 2001 whereby the said Committee purported to extend the terms of reference of the sub-committee purportedly established on the 8 March 2001 by the said Joint Committee and whereby the said sub-committee was purportedly empowered, if it considered it necessary to do so, to hear evidence in accordance with the provisions of the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997 and to report to the Joint Committees thereon and to include its findings and conclusions and recommendations, if any.

5.A declaration that the submission of the sub-committee on the Abbeylara incident to the Joint Committee on Compellability of Committees of Procedure and Privilege of Dáil and Seanad Éireann made about the 11 April 2001 was made in breach of the terms of reference as comprised in the Order establishing the said sub-commttee and without jurisdiction.

6.An Order of Certiorari quashing the directions to the applicants requiring them to attend before the Abbeylara sub-committee, there to give evidence and to produce documents in their possession.

7.A declaration that the procedures adopted by the Abbeylara sub-commttee do not comply with the requirements of natural and constitutional justice.

3.9There were two further matters before the Court that were not touched upon in the Abbeylara decision. One was the alleged inability of elected representatives to conduct Inquiries of this type because of perceived structural or objective bias “arising particularly from their representative functions as elected parliamentarians.” The second was the alleged inappropriateness of a senator being a member of the Sub-Committee.

3.10The Orders made in the Abbeylara decision follow closely the reliefs sought by the applicants in that case.

Part Four – The impact of the Abbeylara decision on the mini-CTC Sub-Committee

“The issue for this Sub-Committee is no longer what happened to the taxpayer’s money but the extent to which the Oireachtas can be permitted to exercise its legislative function.

“In due course we will have the courts answer to that question. It is likely at that time that others will have to consider if it is time, in the interests of the State, whom we all serve, to go back to the People from whom we derive our authority, to seek from them a final answer on the matter.

“In the meantime this Sub-Committee will adjourn. I cannot give a date for its resumption because I have no control over the judicial timescale.

“The proceedings of this Sub-Committee will resume, if they can resume, when we are permitted to resume.”

Statement of the Chairman & decision of Sub-Committee

Mini-CTC Inquiry

27 November 2001.

4.1In this Part we outline and discuss the impact on and implications of the Abbeylara decision for our Sub-Committee. These were rehearsed in substance in the Statement of the Chairman of 27 November 2001. The above extract from the Chairman’s statement sets out in summary the immediate impact of the Abbeylara decision on our inquiry.

4.2The first of the Orders made in the Abbeylara decision (and the first relief sought by the applicants) is, for our Sub-Committee and for the Houses of the Oireachtas, the most significant. The effect of the first Order, at least for the time being, is to declare parliamentary inquiries of the type undertaken by our Sub-Committee under the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997 and the Comptroller and Auditor General and Committees of the Houses of the Oireachtas (Special Provisions) Act, 1998 to be ultra vires the powers of the Oireachtas.

4.3In addition, the seventh Order (which echoes the eleventh relief sought by the applicants), in that it deals with the procedures adopted by the Abbeylara Sub-Committee, including its procedures in regard to cross-examination, also is significant.

4.4The procedures of our Sub-Committee follow closely those adopted by the Abbeylara Sub-Committee and are ultimately modelled on the procedures adopted by the Committee of Public Accounts Sub-Committee on Certain Revenue Matters (the DIRT Inquiry). The Order makes a declaration that the procedures of the Abbeylara Sub-Committee do not comply with natural or constitutional justice – de facto it may be that the procedures adopted by the Oireachtas for parliamentary inquiries under the compellability legislation equally do not comply with the requirements of natural or constitutional justice. The issue of our procedures is dealt with more fully in Part Seven of this report.

The first Order

4.5The High Court has ruled in effect, in its first Order, that all public inquiries undertaken by the Houses of the Oireachtas are ultra vires the powers of the Oireachtas where they are “liable to result in findings of fact or expressions of opinion adverse to the good name, reputation and/or livelihoods of persons not members of such Houses”. The reasoning in support of this ruling asserted that the Houses of the Oireachtas did not have an inherent power to inquire and did not have a statutory power to inquire in the absence of such an inherent power.

4.6The effect generally of this ruling and the reasoning behind it is to put a stop to Oireachtas inquiries in such circumstances at least until the Supreme Court decides the issue on appeal. The circumstances identified in the Order apply to the mini-CTC Inquiry. While our Inquiry is incomplete and we have not yet considered the evidence it is of course possible that our Inquiry might result in findings of fact or expressions of opinion that might be liable to be adverse to the good name, reputation and/or livelihoods of persons who are not members of the Oireachtas. Therefore the Sub-Committee felt that it must adjourn.

The Abbeylara Test

4.7The Abbeylara decision introduces for the future in its first Order a test that shall operate in respect to its application generally. The test introduced is that of an Oireachtas inquiry being “liable” to result in findings of fact etc. in respect of non-members. When a parliamentary inquiry is liable to result in such an outcome the inquiry is ultra vires the powers of the Oireachtas. In the view of the Sub-Committee this appears to set such a low threshold of objection to the jurisdiction of the Oireachtas to inquire in the circumstances defined that the jurisdiction does not exist in reality.

Other issues

4.8It would appear from the reasoning in the decision of the Court that this is the considered intention of the Order. The decision contains a lengthy discussion of whether there is inhering in parliament a power of adjudication of the kind being exercised by the Abbeylara Sub-Committee and our Sub-Committee.

4.9One aspect of the Abbeylara decision was that in practice it had the effect of preventing the continuance of our inquiry. This occurred at a critical moment. The legal representatives of the McDonnell family were on the point of concluding the cross-examination of witnesses. While the family of the late Mr. Michael McDonnell did not seek to complain about the delay occasioned by the Abbeylara decision the Sub-Committee was conscious that the right of the family of the late Mr. Michael McDonnell to cross-examine was at the least being postponed – at least until the decision of the Supreme Court, which is at the time of writing awaited.

4.10Secondly the Sub-Committee was equally conscious of the fact that the right of various parties and persons to make closing submissions was also at least postponed as a result of the injunction, again at least pending the outcome of the Supreme Court appeal. As a result of our inability in the circumstances to complete our Inquiry the right of cross-examination has ultimately been denied, and the right to make concluding submissions has, in effect, disappeared.

4.11The third issue facing the Sub-Committee on the morning of 27 November was the decision of the Supreme Court in upholding the ruling of Mr. Justice O’ Caoimh on 31 October 2001 to lift the injunction then in place on our proceedings. In communicating the decision of the Court Chief Justice Keane said

“This sub-committee, having been established by a joint Oireachtas Committee, must be regarded as part of the legislative arm of government. While it has been made clear on more than one occasion that the respect which each branch of government owes to the other branches will not inhibit the judicial branch from intervening where the Constitution is being violated by either or both of the other branches, I am satisfied that such a situation has not been reached in the case of the sub-committee. The learned High Court judge was, in my opinion, correct in concluding that the balance of convenience in the present case was in favour of discharging the stay originally granted.”

The language of the Supreme Court decision – the suggestion that the Sub-Committee was acting as part of the legislative function – is close to the view taken by the US Supreme Court in various decisions relating to the system of Congressional inquiry in the United States (further discussed at paragraph 6.14). Of course the observations of the Chief Justice are not definitive. The judgment of the Supreme Court in the appeal from the ruling of Mr. Justice O’Caoimh was based on an interlocutory hearing and therefore, does not have the status of a final judgment. That is, of course, one of the issues which falls to be determined in the Abbeylara appeal, which is awaited.

4.12In considering the quandary into which it had been put by the Abbeylara decision the Sub-Committee decided, respectful of the constitutionally enshrined doctrine of the separation of powers, that it should not take any step that would consciously undermine the judicial function. As explained by the Chairman in his opening statement of 27 November –

“This should be so even if in its result this Sub-Committee is prevented from establishing what happened to significant sums of public money in relation to an area of public transport that touches daily on the lives of ordinary people.”

4.13These remarks are of course qualified by the need, to the extent necessary, to consider the decision of the Supreme Court on the Abbelara appeal, when that decision is delivered.

Part Five – The wider implications of the Abbeylara decision for the Houses of the Oireachtas

“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 inquiry 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.”

The High Court

Judicial Review

Maguire & Others v Ardagh & Others

23 November 2001

5.1In this part we outline and consider the wider implications for the functioning of the Houses of the Oireachtas, the legislative arm of government, of the Abbeylara decision as they appear to the Sub-Committee.

5.2The form of declaratory order made by the High Court affected the ability of our Sub-Committee to continue its proceedings, even though we were not parties to Maguire v Ardagh. Equally, until, in this respect at least, reversed – whether on appeal, by statute or by constitutional amendment – the Abbeylara decision will affect every future committee seeking to inquire into matters liable adversely to affect the good name of third parties – regardless as to whether the powers available under the 1997 Act are sought to be used. This is an enormously significant development, in the view of the Sub-Committee a restriction even, on the functioning of the National Parliament.

5.3Committees, of course, only perform functions on behalf of the House or Houses which establish them, and they exercise the powers which the Houses decide to confer on them. They exist purely as agents of the Houses which appoint them and a curtailment of their powers is a curtailment of the powers of the Houses to entrust particular tasks to them.

5.4So, every member of either House has had, to that extent, their rights as members curtailed by virtue of this judgment.

Legal status and personality of the Oireachtas

5.5Dáil and Seanad Éireann are curious institutions in terms of legal status and personality. They are the two Houses of the “National Parliament” – Article 15.1.1 – and their members have duties as “public representatives” – Article 15.15. Somewhat more floridly, their members, or at least the Dáil members, have been designated by the people as “rulers of the State” for the purposes of Article 6.1.

5.6Yet the Houses themselves do not have legal capacity, for example, to hold property or to sue and be sued. The Houses have certain public functions conferred on them but have no continuous existence separate from the members. It seems the members belong to what is simply an unincorporated body of persons that every so often ceases to exist, before it is again reconstituted with a different membership. There is no provision for legal continuity to govern something like the survival of a cause of action, or the ability to maintain or defend an action, from Dáil to Dáil.

5.7And, as we understand the present situation, upon the dissolution of the Dáil by Presidential proclamation, not only does the House cease to exist but so also do its committees and the joint committees. (We understand that the position in relation to Seanad Éireann is somewhat different. It is never actually dissolved. Instead its membership changes on foot of various elections and nominations.)

5.8The respondents in the Abbeylara case and in the mini-CTC (McDonnell) case were sued in their capacity as members of sub-committees which attempted to exercise certain powers aimed against the plaintiffs. In the case of Abbeylara the decision of the High Court – and the appeal to the Supreme Court – is grounded on that specific factual state of affairs. Courts decide cases by reference to the facts before them. They are not available to answer questions of law in the abstract, which have no basis in a live issue in dispute between parties.

The possibility of mootness arising

5.9So, if we, the respondents in the McDonnell case cease to be members of the mini-CTC committee – and, in fact, the committee ceases to exist – as a result of the dissolution of the Dáil, the risk must be that the McDonnell case could then be adjudged to be “moot”, on the grounds that it seeks to determine a question of law that is no longer required in order to determine the respective rights and obligations of the parties to each other.

5.10It may be the case that the Houses of the Oireachtas do have legal personality by virtue of the Constitution. However the law is regrettably unclear on the point and we are advised that it would be unwise for the time being to rely on such assumed legal personality. It may in the alternative be the case that the continuing presence of the Attorney General as another respondent in the action is sufficient to ensure survival of the appeal. That depends on the precise capacity in respect of which the Attorney was sued – the judgment of the High Court does not provide much assistance in this regard – and whether that capacity is sufficient to entitle him to retain carriage of an appeal that would otherwise be moot. Another possibility is that one of the more suitable officials (e.g. the Clerk of the Dail), or alternatively, the Ceann Comhairle could be joined to defend litigation on behalf of the Houses of the Oireachtas. We believe that the views of the Attorney should be sought on this aspect and they should be available to the Houses.

5.11In any event, it seems to us to be a fundamental proposition that, in order properly to determine a court action, all necessary and proper parties (but of course no others) should be before the court, so as to ensure that all matters in dispute in the proceedings may be effectively and completely determined and adjudicated upon.

5.12We know that the courts have power to add a person as a party who ought to have been joined originally or whose presence before the court is necessary (Orders 15 and 17 of the Rules of the Superior Courts appear relevant). It must surely be the object of any reasonably sophisticated legal system that the procedures are adequate to ensure that all parties to disputes relating to the same subject matter are brought before the court at the same time, so that disputes may be determined without the delay, inconvenience and expense of separate actions and trials, and to prevent justice being defeated for want of parties.

5.13We welcome the fact that Sections 3 and 9 of the Houses of the Oireachtas Commission Bill, 2002 deal with the questions of the legal personality of the Houses and of there being appropriate parties to continue the conduct or defence of judicial review proceedings. However the Bill remains to be enacted.

Separation of powers in constitutional theory

5.14The issue and the meaning in law and under our Constitution, of, the constitutional theory known as “the separation of powers” has been brought into play in the Abbeylara decision.

5.15The general constitutional theory of the separation of powers is well known. While the theory is of ancient origin the modern day version of it is seen to derive from the French philosopher Montesquieu and Constitution of the United States of America. This theory distinguishes between three arms of government – the executive arm, the legislative arm and the judicial arm. These three arms are separate and respect each other and each other’s functions and powers. However as is contended in the following paragraphs, theory and reality differ considerably while also, the three arms of government of the theory in the abstract do not fully comprehend the scope of modern-day government.

5.16In his work Constitutional and Administrative Law (3^rd edition) SA de Smith, having observed that while everyone who tries to define it begins with an assumption that it is a good thing, like justice or courage, this is not to say that the quintessence of the separation of powers doctrine is easy to distil, has this to say on the subject:

“The doctrine has emerged in several forms at different periods and in different contexts. It is traceable back to Aristotle; it was developed by Locke; its best-known formulation, by Montesquieu, was based on an analysis of the English constitution of the early eighteenth century, but an idealised rather than a real English constitution; the disciples of Montesquieu, particularly numerous in the North American colonies, added their own refinements … The doctrine as propounded by Montesquieu and his followers may be stated briefly as follows:

1.there are three main functions of governmental function: the legislative, the executive and the judicial;

2.there are (or there should be) three main organs of government in a state: the Legislature, the Executive and the Judiciary; and

3.to concentrate more than one class of function in any one person or organ of government is a threat to individual liberty.

“For example, the Executive should not be allowed to make laws or adjudicate upon alleged breaches of the law; it should be confined to the executive functions of making and applying policy and general administration.”

“Imperfect” adoption of separation of powers

5.17It appears to the Sub-Committee that Montesquieu’s formulation of the separation of powers – in that it contemplates a clear-cut distinction between the executive, the legislature and the judiciary in respect of their functions and duties – is today something of a misnomer.

5.18In Ireland, as in the United Kingdom, we have Cabinet government with a parliamentary Executive – in fact, the blending of the Executive and Legislature is a fundamental characteristic of both our systems of government. Two authorities, Hogan and Morgan, in their work, Administrative Law in Ireland, refer to our system of parliamentary government as a “fused executive-legislature”. Law-making powers are also delegated by the Oireachtas to members of the Executive; powers to determine justiciable controversies in minor matters are confided to Ministers and to specialist tribunals. Equally, as a matter of fact, the legislature from time to time acts judicially.

5.19One example of the adjudicative role of parliament in Ireland is the procedure of the Oireachtas for considering Private Bills and the enactment of Private Acts.

Adjudicative role of parliament – private Acts of the Oireachtas

5.20The enactment of what are known as Private and Local Acts is a little known feature of our parliamentary life that is relevant to consideration of the adjudicative powers of the Oireachtas. Private Bills have their origins in a common law right to petition Parliament as a means of getting redress for individual problems – the Private Bill was the procedure under which there was a right to petition for divorce under the 1922 Constitution. The procedure is also used to confer on chartered towns, corporations, local authorities, utilities and so on special legal powers which they require for public purposes and which they would not enjoy under the general law.

5.21Standing Orders for Private Bills were jointly adopted by the Dáil and Seanad in 1923. These Standing Orders were based on those of the British House of Commons, with the difference that as much as possible of the procedure governing the passage of Private Bills was made joint, so as to save expense to the promoters.

5.22Any person or group desiring to introduce a Private Bill has to lodge an application in the Private Bills Office, in conformity with prescribed conditions. The Examiner of Private Bills examines the Bill and reports as to its compliance with Standing Orders. The Bill is then deemed to have been read for the first time in the Seanad. After its second reading, it is referred to a joint committee of the Houses, which hears evidence on behalf of the promoters. The promoters are represented by counsel instructed by a firm of solicitors, who take out the status of ‘parliamentary agents’ for the purpose. Witnesses may be cross-examined on their evidence by parties who oppose the passage of the Bill. Fourth and Fifth stages are taken in the Houses in the usual way, although debate is generally pro forma.

5.23Private Bills are often non-contentious but they have been opposed (Trinity College Dublin Charters and Letters Patent (Amendment) Act, 2000) and also rejected. In 1931, for example, the Senate rejected at second stage a Private Bill for the conferring of Irish citizenship on a named Czechoslovak national (Heller Citizenship Bill, 1931). Notoriously, the Free State Oireachtas, which had jurisdiction to enact Private Bills for divorce, found itself incapable of even considering the merits of any such Bill – let alone reject them – and three Private Divorce Bills lodged with the Examiner in 1924 were eventually withdrawn by their promoters.

5.24Although it is not explicitly adverted to, a recognition of the ability of the Oireachtas to legislate so as to alter the rights and obligations of specific and named individuals, having satisfied itself in accordance with its own procedures as to the merits of such a course of action, seems to be implicit in the judgment of Mr Justice Walsh in the well known case of East Donegal Co-Operative v Attorney General [1978] IR 317. That case concerned a power conferred on the Minister for Agriculture, in connection with livestock marts, to make statutory orders granting exemption from the provisions of the relevant legislation “in respect of the carrying out of any particular business or business of any particular class or kind”. According to the Court, it was legitimate for the Oireachtas to delegate to the Minister a power to make different provision as between different classes or kinds of businesses. However, when it came to differentiating between particular businesses: –

“The constitutional right of the Oireachtas in its legislation to take account of difference of social function and difference of capacity, physical and moral, does not extend to delegating that power to members of the Executive, to the exclusion of the Oireachtas, in order to decide as between individuals (all of whom are, by the terms of an Act bound by it) which of them shall be exempted from the application of the Act … ”.

5.25Therefore, so much of the section as related to a power to exempt particular business, as opposed to businesses of a particular class or kind, fell as unconstitutional. The reasoning of Mr. Justice Walsh seems to be grounded on an implicit acceptance that the Oireachtas would itself have had the power to make such distinctions within the body of the legislation.

5.26The Dáil and Seanad Standing Orders for Public Business each contain an Order dealing with the procedure to be adopted in relation to what are called “Hybrid Bills”. These are Bills which, although introduced as Public Bills, affect private interests in such a way that, if they had been promoted as Private Bills, the relevant Standing Orders would have required the service of preliminary notices on affected parties. The Standing Order requires that Hybrid Bills should be subject to certain of the Private Bill procedure, in order to give a right to be heard to such affected parties.

5.27The significance of all of this is that, as things stand and have long stood, not only can there be an inquiry by an Oireachtas committee, but that there can be before the Oireachtas rival parties in dispute with each other, there can be contested evidence and there can be findings of fact.

5.28Even stronger, the whole object of the exercise is to achieve an outcome which will affect legal rights and impose legal obligations, the very definition of a Private – or Local or Personal – Bill being that it is promoted solely to affect private interests. The Altamont (Amendment of Deed of Trust) Act, 1993, is an example of the sort of effect in law such an inquiry can have (although that was an uncontested Bill).

5.29The Private Bill procedure has been part of the procedure of the Houses of the Oireachtas since their establishment. The first such Acts were passed in 1924². The propriety of this procedure has never been judicially challenged, nor has the validity of any Private Act.

5.30The content of the Irish Statute Book, just as the Acts of the British Parliament and of previous parliaments in Ireland used to be, is divided between its Public and General Acts and its Local or Private/Personal Acts.

5.31If the High Court is correct in its judgement in the Abbeylara case, there is a strong case that the Standing Orders of both Houses relative to Private Business (which govern the Private Bill procedure) are invalid and that all legislation passed under that procedure is constitutionally vulnerable. If so, then so be it. The Courts under our constitution have sole power in interpreting the Constitution although the consequences of judicial interpretation are a matter of constitutional policy, which under our Constitution is exclusively a matter for the Oireachtas (as promoters) and the people (as deciders).

Separation of Powers – some further considerations

5.32Judges also in effect make Law and make laws. For example the Rules of the Superior Courts have the standing of Statutory Instruments, which is to say secondary legislation. These Rules are drawn up by the Superior Court Rules Committee, made up of judges appointed in their capacity as such. The Committee, having made the Rules, then obtains the concurrence of the Minister for Justice. And of course, as Mr Justice Lardner pointed out in RT v VP (orse VT) [1990] 1 IR 545: “Historically, the common law has developed at least in part by the application of established principles to new cases – to novel facts and circumstances. It has undoubtedly involved the development of the law and novel decisions are not uncommonly referred to as judge-made law”. The judge went on to say that, in his view, this was not, “in its proper exercise”, an impermissible exercise of the legislative function. Much the same point was made by Mr Justice Walsh in Gaffney v Gaffney [1975] IR 133, when he said: “Our law contains a great deal more than statute law: Many of the doctrines of the common law, which are regarded as part of our law, were created by judges and in due course came to be modified, if not entirely abandoned, by judges”.

5.33The Courts also act administratively. For example, administrative functions in relation to the grant and renewal of various classes of licence including liquor licences are exercised by the District Court. Circuit Court judges also sit in relation to tax appeals. However they sit under the same legislation which governs the hearing by the Appeal Commissioners.

5.34Administrative tribunals also act judicially. This is the case with the Appeal Commissioners, who sit in judgement on tax appeals. While a Circuit Court judge may also hear tax appeals, this is a mere rehearing of the appeal. However both bodies, the Appeal Commissioners and the Circuit Court, sit and judge under the same legislation. The one significant point of difference between a hearing by the Appeal Commissioners and a hearing by a Circuit Court judge is that the latter may award costs.

5.35None of this is to suggest that the separation of powers is redundant. Far from it. It is simply to say that the real world is more complicated than the theoretical construct. Insofar as the Constitutions of 1922 and 1937 are grounded upon and require observance of the doctrine of the separation of powers, it is clear that the doctrine has been adopted in Ireland in what is at best an imperfect manner.

5.36Indeed it is arguably imperfectly adapted wherever it is to be found, even in the United States. Article 2 of the US Constitution creates the executive branch of government headed by the President, elected, along with the Vice President, for a term of four years. Since the adoption of the Constitution there have been two conflicting views of Article 2. The first is that the powers of the President are limited to those enumerated in the article. The opposite view is that the President is given executive power not limited by the provisions of the rest of the article. Every President has had to make the choice of interpretations for himself. There is in the United States today a strong view that the doctrine of separation has been weakened by the expansion of government power and with it, the granting of greater powers to the President and his administrative agencies, which now have legislative and judicial as well as executive functions.

5.37In considering the doctrine as it applied under the Free State Constitution, Mr Justice Johnston pointed out in Lynham v Butler (No. 2) [1933] IR 74: –

“It has been found through universal experience that this division of governmental functions cannot, as a matter of practical polity, be carried out to its logical conclusion and can only take place as an approximation. In no system of which I have any knowledge has it been found to be possible to confine the legislative, the executive and the judicial power each in what I may call its own water-tight compartment; and, if such a thing were to be attempted, the result, I fear, would be so much the worse for the compartment.”

Separation of Powers as a “core value”

5.38It seems to us that, as a matter of constitutional theory, the separation of powers doctrine can properly be described as a “core value”, not least because its function is to preserve and protect the operations of each branch of government in the performance of their “core” functions. The doctrine involves for each branch, to quote Chief Justice Finlay in Crotty v The Taoiseach [1987] IR 713 “not only rights but duties also; not only areas of activity and function but boundaries to them as well.” However the question as to the delineation of the boundaries as between one branch and another under our Constitution is a matter exclusively for the Courts.

5.39Clearly though, there are a great many functions performed in the State, under statutory power, which involve no constitutional consideration whatsoever. The licencing functions at present exercised by the District Court could just as easily be transferred to a Minister; more appropriately, perhaps, to a dedicated Licencing Board; and no doubt least happily but certainly constitutionally, to a body made up exclusively of members of the Oireachtas.

5.40The history of the last twenty or so years, in terms of public administration, has been one of central government shedding itself of areas of direct activity. Civil servants of the Government no longer deliver the post to our doors under Ministerial direction. Nor do they staff the telephone exchanges or the courts, direct air traffic, enforce competition law or standards of corporate governance in limited liability companies. The public bodies which employ these staff have statutory functions, powers and duties but it is pointless to attempt to classify them as being legislative, executive or judicial.

5.41The process furthermore is evolving. For example under this Government’s current legislative programme civil servants of the Government will soon cease to be responsible for the approval of new railway works and inquiring into rail accidents. These duties are to be assigned to a statutory Rail Safety Authority. Equally, certain aspects of procurement in the railways are to be assigned to a new, statutory Rail Procurement Agency.

5.42It has been argued that the executive power of the State consists of all that is left once you have excluded the powers of the Legislature and Judiciary. But such a definition, apart from serving no useful purpose whatsoever, seems to run directly counter to the words of Article 28.2: “The executive power of the State shall, subject to the provisions of this Constitution, be exercised by or on the authority of the Government”. It is both factually and, on any analysis, legally incorrect to claim that aircraft are directed to circle Dublin Airport in a holding pattern “on the authority of the Government”. The Government has nothing to do with the exercise of their powers by staff of the Irish Aviation Authority.

5.43A preferable view, which sits more comfortably with reality, must be that there are powers in the State, which are not necessarily to be classed as powers of the State, within the tripartite division of the doctrine of the separation of powers. The separation of powers doctrine, in its constitutional manifestation, asserts that certain powers, by reason of their nature, are inherent to, and can properly be exercised only by, each particular branch: any attempt by another branch of government to usurp those powers or to interfere in their exercise by the branch to which they are properly entrusted must be resisted.

5.44Apart from these three core areas of activity, however, there exist powers which quite properly can be distributed amongst the branches of government as the Legislature, which is the branch responsible for making these decisions, thinks fit. And, if it sees fit, it can create new agencies entirely and confer these non-core functions upon them.

The Constitution – construction, interpretation and policy

5.45In Ireland, the constitutional basis for the separation of powers is found in Article 6 of Bunreacht na hEireann.

“Article 6

1.All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.

2.These powers of government are exercisable only by or on the authority of the organs of State established by this Constitution.”

5.46Our Constitution is to be construed exclusively by the Courts: by the High Court and ultimately, on appeal, the Supreme Court – Article 34.3.2 and 34.4.6. The Constitution in express terms gives to the Courts the sole power of interpreting the Constitution – Article 34.4.4, including the right to decide the boundaries of the Separation of Powers provided for in the Constitution.

5.47What a parliamentary committee, or parliament, can of course do is to indicate what it considers to be an appropriate constitutional model and to recommend that, if necessary, the Constitution needs to be changed if the Courts are to take the view that the current model does not permit of something considered to be desirable – for example the power of parliament to inquire. The distinction here is that between constitutional policy (a parliamentary function – Article 46.2 – and one ultimately for the people) and constitutional interpretation (a judicial function). Within this context, it is the view of the Sub-Committee that the claim that a power of inquiry cannot be exercised by an Oireachtas committee falls to be examined afresh. The following paragraphs therefore are to be read as a practical argument in favour of it being “a good thing” that there be a right of parliamentary inquiry as opposed to an argument in favour of a construction of the current Constitution, which is a matter for the Courts.

Ambit of parliamentary power

5.48One notable feature of the reasoning behind the Abbeylara judgment is its treatment of Parliament as a relative newcomer in the constitutional scheme of things. The judicial branch of government, which derives its authority from the same basic text, is happy to trace its own origins to – and to maintain forms and customs that derive from – the dim and distant past. “Legal memory” in this State dates back to 1189. Anglo-Norman doctrines underpin conveyances of property carried out on a daily basis. The jurisdiction of the courts in, for example, nullity cases derives from the ecclesiastical courts of the former Established Church.

5.49Continuity – both in the laws applied, and the manner of their application – is clear and apparent. Both the 1937 and prior to that the 1922 Constitutions provided that, to the extent they were not inconsistent with the new dispensation, laws already in force should continue in operation. This has been held to apply both to statute and common (unwritten) law.

5.50So when it comes to attempting a definition of the judicial power, for the purposes of the doctrine of the separation of powers, the courts have been happy to adopt and make use of one of five tests, set out by Mr Justice Kenny in McDonald v Bórd na gCon (No. 2) [1965] IR 217, which describes the exercise of the judicial power as involving: –

“the making of an order by the court which as a matter of history is an order characteristic of courts in this country”.

5.51If a similar test were used in order to determine the ambit of parliamentary power in respect of the power to inquire, we believe an historical excursus would show such a power of inquiry on a matter of public importance, far from being a novel exercise, is one which is “as a matter of history, characteristic of parliaments in this country”.

5.52We would contend from the standpoint of constitutional policy that, on a close examination, there is far greater continuity in terms of function and structure between our National Parliament and its predecessor than there is between our courts – pro-active guarantors constitutional right – and those that went before them. Our reasoning is as follows.

5.53The present Parliament is now, as were its predecessors since at least Tudor times, a national assembly regulated by detailed rules governing its structure, membership and functions. The Constitution adopts and sets out the more important of those rules, some of which were merely conventions, without strict legal status, in the United Kingdom.

5.54The Bill of Rights in 1689, for example, provided that Parliament “ought to be held frequently”. The Meeting in Parliament Act, 1694 (the Triennial Act), required that not more than three years should elapse between the dissolution of one Parliament and the meeting of its successor. However, long standing convention requires that the British Parliament be summoned every year – a convention given effect to by Article 15.7 of our Constitution.

5.55Since the late Middle Ages, the two Houses of Parliament have met, deliberated and voted separately – a requirement continued by Article 15.10 and 11.

5.56Since its separate establishment, the lower House has always been a wholly elected body – Article 16.

5.57Convention, and the privileges claimed by the House of Commons, required that Money Bills be introduced in that House – mirrored in Article 21.

5.58Because of its primacy in financial matters, convention also required that the Chancellor of the Exchequer, as well as the Prime Minister, should be members of the Commons – Article 28.7.1 adapts this requirement to the Minister for Finance and the Taoiseach.

5.59It was a constitutional convention of fundamental importance that every proposal to authorise central government expenditure, or to increase or impose a tax must have “the Queen’s recommendation” – the equivalent rule is now found in Article 17.2.

“Dail Eireann shall not pass any vote or resolution, and no law shall be enacted, for the appropriation of revenue or other public moneys unless the purpose of the appropriation shall have been recommended to Dail Eireann by a message from the Government signed by the Taoiseach.”

5.60Under the UK’s Parliament Act, 1911, the will of the popularly elected House could override a veto on legislation attempted by the House of Lords. A similar procedure, for overriding the Seanad, is found in Article 23.

5.61Both the UK Parliament and the Oireachtas have rules providing for their maximum duration – Article 16.5 – but can be dissolved on the advice of the Head of Government before the term comes to an end – Article 13.2.1. The Head of State may refuse a dissolution to a Prime Minister who has ceased to retain the support of the majority of members of the popularly elected House – Article 13.2.2. That House thereby ensures the accountability of the Government to it – Article 28.4.

5.62One could go on. But sufficient has been said to demonstrate to our minds and from the perspective of constitutional policy, an intention on the part of the framers of the Constitution, in devising a set of relationships governing Parliament, the Government, the Head of Government and the Head of State – and their dealings with each other – that the Westminster model should be adopted. From the point of view of constitutional theory and constitutional models this places this State firmly in the context of a family of common law countries with a Westminster system of Government in Parliament and with similar customs, conventions and rules of law in relation to their function and status.

5.63This view suggests that a great emphasis should be given to both historical and comparative analysis, in attempting a comprehensive outline of the parliamentary function under our Constitution. Articles 34 to 37 do not say everything there is to say about our courts; nor can they be adequately understood except in the context in which they were enacted. The same is surely true of Articles 15 to 27, dealing with the National Parliament.

5.64And we repeat the point that it as “the National Parliament” that the Constitution refers to the Oireachtas – not simply “the Legislature”. It may be that we have all become used to thinking of the Oireachtas solely in the context of the three powers of government recited in Article 6: legislative, executive and judicial. But the Oireachtas has far more to do with its time than simply passing legislation, as the Constitution itself recognises. A constitutional model that describes the Oireachtas as “the Legislature”, as if to mean that legislation is all it does – or, more drastically, all it is capable of doing – would in our view be entirely inadequate. After all, a body of persons who had nothing else to do except consider abstract propositions of law reform would hardly require the protection conferred by absolute privilege in respect of their utterances.

5.65In the Westminster system of government, as agreed by constitutional and political commentators throughout the common law world, a Parliament has at least three main constitutional functions. One is making laws, the legislative function, in the case of Ireland carried out by both Houses of the Oireachtas. A second function, in Ireland exercised by the Dail, is controlling national expenditure and taxation. A third class of function comprises criticism of national policy, scrutiny of central administration and, to some limited extent at least, procuring the redress of individual grievances. Procuring the redress of individual grievances is done by TDs ventilating the grievances of individuals, localities and groups. Issues may be raised by way of parliamentary question, in the course of debate – particularly the daily debates on the adjournment – and pursued by direct correspondence with or other representations to the Minister concerned.

5.66In his evidence to the Committee of Public Accounts Sub-Committee on Certain Revenue Matters (the DIRT Inquiry) the Attorney General, in a highly detailed submission, recognised this threefold classification and the differing roles of the Dail and the Seanad as defined in the Constitution –

“Dáil Éireann is stated by Article 15.2 of the Constitution to be a “House of Representatives”. While the “sole and exclusive power of making laws for the State” is vested in the Oireachtas, it is clear that Dáil Éireann has two additional important constitutional functions which are not shared by Seanad Éireann.

“The constitutional function of holding the Government accountable is the first non-legislative function vested in Dáil Éireann by the Constitution. Dáil Éireann is the body to which the Government is made responsible under Article 28.4 of the Constitution. Members of Dáil Éireann, as public representatives, have a special role in holding the Government accountable through themselves to the people and the power to dismiss the Government rests with the Members of Dáil Éireann, save only where the Government of the day exercises its right of appeal directly to the people by way of general election.

“A second Dáil Éireann constitutional function is that of control of supply and scrutiny of public expenditure. This role is provided for in Article 17 of the Constitution and is underpinned by Article 33, which establishes the Office of 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.” The Comptroller and Auditor General is appointed by the President on the nomination of Dáil Éireann, not by the Government. It is to Dáil Éireann that the Comptroller and Auditor General is obliged by Article 33 to make all reports. Seanad Éireann by contrast appears substantially to be a legislative chamber, albeit with constitutional functions in relation to the removal of the President and members of the Judiciary.

“The reason that I mention these differences between the Houses of the Oireachtas is to suggest to this subcommittee that if the power to establish committees of Houses of the Oireachtas invested with authority to compel the attendance and testimony of ordinary citizens is, as it may well be, exercisable only ancillary to the constitutional function of each House, then it may follow that such compellability powers can only be exercised by both Houses on foot of their legislative function, or, additionally, in the case of Dáil Éireann in pursuance of its public constitutional function of making the Executive accountable to it, or in securing control over the revenues and expenditure of the State.

“While this legal possibility might appear quite restrictive, the Committee may, on reflection, derive some reassurance from the breadth of potential inquiry which could legitimately be conducted with a view to framing legislative policy, and the breadth of public accountability to the Dáil of the Government in the discharge of the Executive power, and the breadth of topics relevant to Dáil scrutiny of public finances.

“What seems to me to be strongly arguable is that a matter which was entirely private, such as a family matter, a dispute between shareholders or neighbouring landowners or a matter solely affecting a citizen’s reputation, is not something on which an Oireachtas committee can exercise compulsory powers over non-Oireachtas Members just to satisfy its own or the public’s curiosity.”³

5.67This Sub-Committee is firmly of the belief that oversight of public administration is a distinct, legitimate and inherent area of parliamentary activity in a constitutional system like ours, where the Government is both in Parliament and also accountable to Parliament. It is an essential parliamentary task to hold the Government and other public bodies to account to it, and through it to the public, for their actions. Should the Supreme Court hold that, as currently construed, the Constitution does not permit of the exercise of such a power – or permits of it only in such limited circumstances as makes it in practice unusable – then we believe that measures would need to be adopted to ensure that an effective parliamentary power of enquiry was put in place including, if necessary and in the light of the Abbeylara Judgment, a constitutional amendment.

Part Six – Further thoughts on the separation of powers and the power of inquiry

6.1We have already offered the view that there are powers in the State which are not necessarily powers of the State, in the sense that they do no have to be corralled into one of three collectively all-encompassing but mutually exclusive categories. The separation of powers doctrine must of course require two things: first, that functions peculiar to one organ of government should not be exercised by another; and second, that there can be no interference by one branch with the exercise by another branch of the functions peculiar to it. Whether the doctrine does – or should – require any more than this is a question we think it legitimate to raise in the context of considering constitutional policy.

6.2From the point of view of constitutional policy considerations and constitutional models it does not seem to us to serve any purpose to attempt to squeeze every constitutional, statutory or common law power capable of being exercised by a public authority or organ of state into one of these three categories. Again from the perspective of constitutional policy, the constitutional model should ensure that the separation of powers doctrine operates more properly as a ne plus ultra: defines an inner core category of power which must of necessity be exercised only by the branch of government to which it is entrusted and which no other branch can attempt to usurp or interfere with.

6.3If one believes that the tenets of constitutional jurisprudence exist for a discernible purpose, to subserve the public good rather than to exist simply as randomly laid and cunningly disguised traps for the unwary, it seems to us that, in terms of models, the separation of powers doctrine serves such a purpose and is of relevance only in the context where it preserves the free and independent exercise by each branch of government of the inherent constitutional functions unique to it.

6.4There are a myriad of other powers in the State which can be allocated between the three branches, or indeed to additional branches that have been created expressly for the purpose. And, within the limits prescribed by the Constitution, it is for the Oireachtas to make these arrangements. As an example of such an arrangement, held to have no constitutional overtones, in Murphy v Dublin Corporation [1972] IR 215 Mr. Justice Walsh dealt with a claim of executive privilege made by the Minister for Local Government in respect of the exercise of the powers he then had in relation to planning appeals:

“The function [in issue here] is not an executive power of the State assigned to his Department or a power which vested in the Department as an executive power from the State. He is persona designata, in that the holder of the office of the Minister for Local Government is the person designated for that function. If the Oireachtas had so enacted, the Act could just as easily have assigned the function to [a quite different official] … The fact that the Minister for Local Government was the chosen person … does not per se confer upon the function the character of the exercise of the executive power of the State.”

6.5If the purpose of a public inquiry is at least in part “to assuage public concern as to the existence of a particular state of affairs”, as was accepted by Mr. Justice Murphy in Lawlor v Flood [1999] 3 IR 107 at 142, and that purpose is a valid and legitimate one, then the choice as to who should be entrusted with carrying out that function is in part, though not exclusively, essentially a policy choice although legal and constitutional demarcation may also be called for from time to time. As the Attorney General remarked in his formal submission to the DIRT Inquiry, “It would be a brave person indeed who would advance the proposition that any Oireachtas committee, as a matter of law, can carry out any function which might be properly vested in a duly constituted tribunal of inquiry.”⁴ As the Attorney General also observed in this same submission “What seems to me to be strongly arguable is that a matter which was entirely private, such as a family matter, a dispute between shareholders or neighbouring landowners or a matter solely affecting a citizen’s reputation, is not something on which an Oireachtas committee can exercise compulsory powers over non-Oireachtas Members just to satisfy its own or the public’s curiosity.” ⁵

6.6Apart from such issues the overriding consideration in the minds of the policy makers, we suggest, should be a utilitarian one: credibility of outcome. Will the form of inquiry decided upon in fact achieve the purpose for which it was established – will public concern be adequately assuaged? Again we quote the Attorney General at the DIRT Inquiry:

“… one of the points that I didn’t make in my opening statement but which occurred to me which I might make is that any inquiry, if it’s to have any use in terms of its outcome must be respected by the public, must be one in which the inquirers seem disinterested or at least trustworthy on the issue and seem to be clear of any strong motivation which would undermine the worth of the inquiry.” ⁶

6.7It is a matter for the Oireachtas to make policy choices such as these and to legislate for the choices it has made. Courts, commentators and indeed the citizenry as a whole may disagree with such decisions and public representatives would be foolish to disregard widespread controversy or anxiety in such matters. It is not in their nature to do otherwise.

The Power of Inquiry as an Adjectival Power

6.8In terms of constitutional models it also seems to us that some powers given to a branch of government, such as the power to inquire, ought to be seen as merely ancillary or adjectival in their nature, rather than being in the nature of what we term core functions.

6.9A similar issue of classification, in this case the difference between what are called ‘objects’ and ‘powers’, has arisen in company law. The confusion there was created between a company’s objects – the functions it was created to perform – and its powers, which are merely its abilities to do certain things in order to achieve its objects. In Cotman v Brougham [1918] AC 514, Lord Wrenbury criticised the –

“pernicious practice of registering memoranda of association which, under the clause relating to objects, contained paragraph after paragraph not specifying or delimiting the proposed trade or purpose, but confusing power with purpose and indicating every class of act which a corporation is to have power to do.”

6.10So, the objects of a company – to make and to sell widgets, for example – may end up being given just the same status in its memorandum as its powers – to hold land, to borrow money, to engage in currency transactions, and so on.

6.11There appears to us to be a similar risk, in the case of Oireachtas committees, of elevating the power of inquiry, which is purely adjectival in nature, to the status of a “power of government”, which must then be examined in order to allocate it to its proper branch of government, on the assumption that it can properly be exercised by one branch and one alone.

6.12A power of inquiry seems to us to be one which can be assigned to a court, a Government Minister or an Oireachtas committee, depending on the purpose for which it is to be exercised. It can also be conferred on someone who is not a member of any of the three branches of government, either to be exercised on the authority and for the purposes of that branch or for other and unconnected purposes of public administration.

6.13It is adjectival, or ancillary, because it is only granted to assist in the furtherance of some other task. An inquiry is never an end in itself. And the fact that it is “adjudicative”, as the High Court described the Abbeylara Inquiry, meaning that it can make findings of fact that may be adverse to the good name and reputation of a citizen, does not place it in any special category. In Goodman International v Hamilton [1992] IR 542 Mr. Justice McCarthy said:

“I do not accept that the determining of truth or falsity is, necessarily, a judicial act in the sense that it may only validly be performed by judges. It does require the application of judicial standards, but it is an everyday occurrence that a variety of tribunals, collegiate or otherwise, have to decide disputes of fact.”

6.14From the point of view of a discussion of constitutional theory and policy, the case of the United States Congress also strikes us as relevant. Article 1 of the Constitution of the United States provides for the establishment of the bicameral Congress composed of the Senate and the House of Representatives. The various powers of the Congress and the respective houses, together with their methods of election, are enumerated in Article 1. Section 8 of Article 1 lists the eighteen enumerated powers of the Congress. There is no express provision in Article 1 for the conduct of inquiries. However as a legislative body Congress has certain inherent powers. Among these is the power to investigate pursuant to legislative needs. The Congressional power to investigate has led to many court decisions. The development of the Congressional power to inquire has been summarized by Morton Rosenberg, Specialist in American Public Law, American Law Division, the Congressional Research Service in a 1995 paper, Investigative Oversight: An Introduction to the Law, Practice and Procedure of Congressional Inquiry ⁷–

“… although there is no express provision of the Constitution which specifically authorizes the Congress to conduct investigations and take testimony for the purposes of performing its legitimate functions, numerous decisions of the Supreme Court have firmly established that the investigatory power of Congress is so essential to the legislative function as to be implicit in the general vesting of legislative power in Congress. ⁸ Thus, in Eastland v. United States Servicemen’s Fund the Court explained that “[t]he scope of its power of inquiry is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.” ⁹ In Watkins v. United States the Court further described the breadth of the power of inquiry: “The power of the Congress to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statues.” ¹⁰ The Court went on to emphasize that Congress' investigative power is at its peak when the subject is alleged waste, fraud, abuse, or maladministration within a government department. The investigative power, it stated, “comprehends probes into departments of the Federal Government to expose corruption, inefficiency, or waste.” ¹¹ “[T]he first Congresses”, it continued, held “inquiries dealing with suspected corruption or mismanagement of government officials” ¹² and subsequently, in a series of decisions, “[t]he Court recognized the danger to effective and honest conduct of the Government if the legislative power to probe corruption in the Executive Branch were unduly hampered.” ¹³ Accordingly, the Court stated, it recognizes “the power of the Congress to inquire into and publicize corruption, maladministration, or inefficiencies in the agencies of Government.” ¹⁴

6.15On first principles, it seems to us a fruitless exercise to attempt to classify the power to appoint an inquiry as being legislative or executive in nature. This is an issue that has arisen specifically in relation to the establishment of tribunals of inquiry and there are conflicting dicta in judgments of the High and Supreme Court. In the High Court in Goodman International v Hamilton [1992] 2 IR 542, Mr. Justice Costello deduced from an examination of the terms of the Tribunals of Inquiry (Evidence) Act, 1921, that it was the Government, or one of its members, that had inherent power, as part of the exercise of the powers of the Executive, to appoint someone to inquire into a matter of public interest.

6.16The High Court in the Abbeylara case strongly relied on this passage and adopted this line of reasoning, pointing out that the only function of the Houses of the Oireachtas, in passing a resolution on the matter, was to equip the inquiry with certain powers of compulsion in relation to the obtaining of evidence which it would not otherwise have had. And it is true that, as a matter of mechanics, the legal instrument constituting an inquiry is a warrant of appointment under the hand of a Government Minister.

6.17But it appears to us of some relevance from the standpoint of constitutional policy, which nonetheless went unremarked upon by the High Court in Abbeylara, that the decision it relied upon was given prior to the enactment by the people in November, 1997, of the 17^th Amendment of the Constitution, which refers to tribunals of inquiry “appointed by the Government or a Minister of the Government on the authority of the Houses of the Oireachtas to inquire into a matter stated by them to be of public importance”. The significance of the emphasised phrase was not established in Abbeylara.

6.18In any event, in the Supreme Court in Goodman International, both Mr. Justice Hederman and Mr. Justice McCarthy followed American authorities and described the power to initiate inquiries as an inherent power of the Houses of the Oireachtas. And, in Attorney General v Hamilton (No. 1) [1993] 2 IR 250, Chief Justice Finlay described the establishment of the Beef Tribunal as an exercise of one of the legislative powers of the State.

6.19From the point of view of constitutional theory and consideration of alternative models, what appears to us to be at issue in relation to the power to appoint an inquiry is the power to engage in an entirely ancillary exercise, rather then the performance of a core function. Since there is no question of the exercise by one of the three branches of government of an inherent constitutional function that is unique to it, it does not seem to us to be necessary, expedient or even possible to require it to be classified as being either legislative, executive or judicial in nature, or as being inherent in only one of the three branches of government. A power to inquire, to decide facts and then to report them can be in aid of any one of the three functions of government, in aid of a professional practices committee, a university disciplinary board, a local authority or any of a number of other public or private authorities.

6.20To take a practical example. Does anyone believe that if Judge Catherine McGuinness had decided her powers were inadequate for the task facing her in the Kilkenny Incest Inquiry and that resolutions from both Houses of the Oireachtas were required to equip her with powers of compellability, the fundamental nature and purpose of her job would have thereby been transformed from an executive to a legislative one?

6.21If you take the narrow view, the fact that no resolutions were passed under the Tribunal of Inquiry (Evidence) Acts means that her inquiry and report must be classed as being an exercise of the executive power of the State, since she was appointed by a Government Minister. But if such resolutions had been passed at a certain stage, would it make any sense to argue that her task had been transformed into an exercise of legislative power?

6.22In The State (O) v O’Brien [1973] IR 50 Mr. Justice Walsh pointed out that “the quality of the act [whether executive, legislative or judicial] is to be determined by the act itself, not by the person who is doing the act.Surely he would equally have ruled out the idea that, while the quality of the act must be assessed by reference to its nature rather than by reference to who is doing it, it nonetheless can vary depending on who it was who asked initially, or who joined in a request at a later stage, that it should be done. However this discussion is in the abstract, it is theoretical. The actual construction of the current Constitution in respect of all of this is now a matter for the Supreme Court.

The “Bare” Power to Inquire Separate from the Power to Compel Evidence.

“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.”

The High Court

Judicial Review

Maguire & Others v Ardagh & Others

23 November 2001

6.23The applicants in Abbeylara contended that Parliament does not have power to conduct or to authorise the conduct of an investigation with an “adjudicative” power, meaning a power to make findings of fact which might be adverse to the good name and reputation of a citizen, what the High Court in the context of considering the “inherent power” argument, refers to as “a bare power to enquire”. The Court agreed with the applicants. It is now a matter for the Supreme Court to uphold or overturn in full or in part this construction of the Constitution.

6.24It seems to us from the point of view of constitutional theory as distinct from the interpretation of our Constitution, that a bare power of inquiry, far from being either inherent to one branch of government, and incapable of being exercised by others – and far also from being a power that can be exercised only if it has been expressly conferred by lawful authority – ought to be inherent in the sense only that it is inherent in, and capable of being exercised by, anyone and everyone. In general, no person, natural or legal, needs to have been conferred by law with a jurisdiction to ask questions of another (so long, perhaps, in the case of a legal person, as the answers are relevant to its functions), and to arrive at a view on foot of the answers received.

6.25As an obvious example, public spirited citizens in this State and in Northern Ireland have had occasion come together to hold inquiries on matters of public controversy, where it seemed to them that the authorities were slow to act. Such “inquiries” have no statutory authority and no particular legal status but of course this does not make them in any sense unlawful or “invalid”. If there are no legal conditions, either precedent or subsequent, to a thing being done, it appears to us to make no sense in law to speak of its being done without authority.

6.26In the case of an organ established by the Constitution, certainly one that is a collective entity, one can stand Descartes’ axiom on its head: it exists, therefore it thinks. And a consequence of thought is awareness of the limitations of one’s knowledge. If one has the ability to communicate with others and to appoint similarly enabled agents to act on one’s behalf, one has all the inherent power that is required in order to ask those agents to make inquiry of others on the questions that trouble one. However we accept that, constitutionally, it may be that we are in this view sadly mistaken.

6.27The conferring of powers of compellability would certainly transform the way in which an inquiry is conducted. But in terms of constitutional models that should not be sufficient, in our view to justify a claim that the essential nature and purpose of the task being undertaken has been fundamentally altered, any more than the task undertaken by Judge McGuinness in Kilkenny would have altered in its fundamental nature and purpose if Oireachtas resolutions had been passed in respect of it.

6.28To take another example. Chief Justice Hamilton asked questions of various persons in relation to the Sheedy affair. The Chief Justice was anxious to stress, in relation to that task, that he was not exercising a statutory jurisdiction. He had no powers of compulsion and was not in a position to test (by cross-examination, for example) the accuracy of the information given to him. Not only had he not been given powers of compulsion, he had no statutory authority to conduct an inquiry in the first place. He relied on the co-operation of the persons being interviewed.

6.29And, since he had no statutory powers, and no privilege attaching to the publication of his opinions, he was not in a position to attempt and publish a definitive fact-finding exercise. The Chief Justice’s report did not recommend any sanctions or make any other recommendations arising from his six-week-long investigation, because the Chief Justice had no authority in law to make them.

6.30It is quite clear, from the point of view of the parties, that the legal status of the participants, their powers, rights and remedies as against each other and the status of any views published as a result, were virtually identical to those which would arise on foot of a TV documentary. (Chief Justice Hamilton could have asserted a claim of qualified privilege in a defamation action in respect of his report, which might not be so readily available to a broadcaster.)

6.31The only special status afforded to the Hamilton Report – which is substantial – arose by virtue of his moral authority as Chief Justice. And that moral authority was the only authority the Chief Justice possessed.

6.32To point to the fact that the Government had requested such a report from him, and to claim that some legally cognisable authority flowed from that appointment, would amount to an assertion that the Chief Justice was in the conduct of his inquiries, within the meaning of Article 28.2 of the Constitution, engaging in an exercise of the executive power of the State on the authority of the Government – a proposition he would surely have strongly resisted, precisely on the grounds that such a proposition would breach the doctrine of the separation of powers.

6.33And if you went down the road of attempting to track the source of the Chief Justice’s authority, what account would you take of the fact that the report was requested of the Chief Justice by the Government for the purpose of its being laid before both Houses of the Oireachtas – the only bodies constitutionally equipped to take action on its receipt? Do we therefore conclude that the Chief Justice was exercising a legislative power? This way madness lies.

6.34In any event, surely the basic point is that neither such description would have added anything in practical terms to –

•the legal powers then available to the Chief Justice,

•the status in law of his report,

•his capacity and power in law to have conducted precisely the same inquiry without having been requested to do so by anyone, or

•the consequences which must necessarily, as a matter of law, have followed from his report.

6.35It is our view, therefore, that the Government and its members do indeed have an inherent power to appoint persons to inquire into matters of public importance, but only because so also do everyone else.

6.36We would argue that those powers of Government which the Government shares with other natural and legal persons are of no relevance to a consideration of “the executive power of the State”, vested by the Constitution exclusively in the Government and capable of being exercised only by it or on its authority.

A Power to Inquire, with or without Powers of Compellabilty

6.37And, if the power to make inquiries ought not in its essence be legislative, executive or judicial in nature, then the equipping of an inquiry with powers of compellability and the cloaking of the exercise of that power with privilege should not transform it into a power of a branch of government where it was not such before.

6.38This is not to say that such powers may have been given to an inquiry that has been set up to assist a branch of government in the exercise of functions proper to it: but it adds nothing useful to the analysis to state that the setting up of the inquiry is itself an exercise of the inherent power of that branch of government, particularly if such a statement gives rise to demarcation disputes between the three separate branches as to which is the one to which the power properly belongs.

6.39It is by now accepted without qualification that the Government can ask a judge to conduct a non-statutory inquiry, with no powers of compellability being made available. It is also accepted that it can ask someone who is not a judge to conduct a statutory inquiry, equipped with all the powers of the High Court. From the inquirer’s point of view the important difference is what happens if no-one turns up.

6.40Harry Hotspur put it succinctly when he responded to Sir Owen Glendower’s claims to a preternatural jurisdiction:

(Henry IV, Part I, Act III, Sc. i)

6.41Mr. Justice Murphy pointed out in Lawlor v Flood that one of the purposes of a public inquiry was “for the Oireachtas to obtain information to enable it to perform more effectively its legislative functions”. If that is a legitimate ambition on the part of the Oireachtas, as we believe it is, does it really make sense to have a constitutional framework in which the Oireachtas is disabled from obtaining information required for the more effective performance of its functions on the narrowest of narrow grounds: that it has not been conferred by law with the power to ask for it?

6.42Remember that the High Court did not hold unconstitutional the powers of compellability set out in the 1997 Act. What it said was that no statute had ever been passed conferring on the Oireachtas and its committees a power to authorise an “adjudicative” inquiry at all; and since, in its view, such a power was not inherent in the legislative function and had not been conferred by statute, it therefore did not exist. What was solely at issue was whether there inherently existed “a bare power to inquire”. It left open the question of whether there were any constitutional limits on the conferring of such power by legislation.

6.43The judgement is undoubtedly correct when it states that the Act of 1997 did not purport to create a power of inquiry. Instead, it conferred on committees the powers they would need in order adequately to perform such a task.

6.44In other words, the argument was that, while the Oireachtas had given its committees all the powers they would need in order to conduct an inquiry, it had omitted to grant itself the power to decide on the need for, and to authorise, an inquiry in the first place.

6.45And, from the proposition that the Oireachtas had no power to arrive at such a decision without an express statutory grant of the capacity to do so, the judgment proceeded to what was thereafter its inevitable conclusion.

6.46We have already set out our view that the model of National Parliament adopted by those who framed the Constitution is one that, on historical and comparative analysis, should carry with it a power to inquire and an expectation that it should be exercised.

6.47It is of course precisely for the reasons set out at length in the judgment that the conferring of a bare power to send for persons, papers and records, without anything else, does not in an Irish context create a coercive jurisdiction – “But will they come when you do call for them?” The UK Parliament is a descendant of the mediaeval curia regis and to some limited extent still operates as the “High Court of Parliament”. It has power to enforce its directives, at least when they are made within jurisdiction, and it can delegate that power to its committees.

6.48The Houses of the Oireachtas do not have and have never claimed to have such powers. It was precisely in order to remedy this situation that the Act of 1997 was passed.

6.49Yet the High Court judgment in Abbeylara is ultimately grounded on one fundamental proposition. A bare power to inquire cannot inherently exist in the Oireachtas because it is not accompanied by a co-existing inherent power to enable effect to be given to it, by compelling witnesses to appear under a threat of sanction if they fail to do so. According to the court “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.”

6.50Logically, it would follow from that viewpoint that the Executive also has no power to authorise an inquiry otherwise than under statute, since only statute confers the ability to compel the attendance of witnesses. So, an exercise such as the Kilkenny Incest Inquiry or the Hamilton Report into the Sheedy Affair must be beyond the capacity of the Government to commission. And this despite the fact that the Court had already quoted with approval an opinion to the effect that the appointment of such inquiries is an exercise of inherent executive power.

6.51It is uncertain from a reading of the judgment in Abbeylara how the members of the court would view an attempt by the Oireachtas to remedy the defect they identified, by enacting ordinary legislation specifically to confer a “bare power of inquiry”. The terms of the declaratory order made by the court do not seem entirely consistent with the content of the judgment itself. In particular, the reference in the declaration to inquiries conducted “with the aid of the power of the State” sits uneasily with a judgment sub-tended by the proposition that, regardless of the question as to whether the power of the State has been conferred or not, there was no power to hold an adjudicative inquiry in the first place.

6.52But for the purposes of their judgment the court was content to find that the Oireachtas had not been given by law the initial power to enter upon an inquiry where adjudications are to be made, rather than attack as unconstitutional the powers of compellability conferred by law on a committee which had gone down the inquiry road. And this by a form of reverse reasoning which held that, since the Oireachtas had no power to secure compliance from those who refused co-operation, it must of necessity have no capacity to request such co-operation in the first place.

6.53From which, it seems to us, it must follow that no person or authority, either executive or legislative, has inherent power to conduct or appoint an inquiry, since neither the Government nor the Oireachtas have a co-existing inherent power to secure the attendance of witnesses; that the Tribunals of Inquiry (Evidence) Act was passed on a similarly misconceived basis, since that Act was enacted for the purpose of conferring powers of compellability on tribunals that are established otherwise than by the exercise of power under the Act itself; and that all such tribunals, since the foundation of the State, have involved the invalid exercise of a non-existent power: whether executive or judicial, take your pick. From the point of view of constitutional policy and consideration of different constitutional models, we look forward to the clarification by the Supreme Court on these important questions.

Summary

6.54In summary, our view on the model constitution in respect of the central issue which arose in the Abbeylara is as follows. First, the powers peculiar to each branch of government, and protected by constitutional doctrine from usurpation or other interference from outside that branch, would be quite limited – greatly so in comparison with the sum total of powers exercisable within the public administration of the State.

6.55Second, it should be a function of the National Parliament to engage in oversight of that public administration, both in general terms and, through its committees, by way of detailed scrutiny.

6.56Third, if an issue of competence arises as to the power to inquire, that issue should conclusively be answered by reference to the oversight function of the Houses of the Oireachtas. From the standpoint of constitutional policy a fact finding inquiry should essentially be part of the ways and means of progressing towards an end, rather than being an end in itself. If scrutiny is part of the parliamentary function, then inquiry ought to be a legitimate tool to be used for that purpose.

6.57We have already expressed our strong view that, as Mr Justice Lavery put it in O’Byrne v Minister for Finance [1959] IR 1, the separation of powers is “imperfect” so far as the executive and legislative powers are concerned and “definite” only in respect of the judicial power. For those who contemplate jurisprudence at a theoretical level, such imperfections may not be willingly conceded, since their admission runs counter to the instincts of a tidy mind, that seeks a coherent underlying and unifying philosophical basis for constitutional doctrine.

6.58Such a mind might well react with particular dismay to the inevitable “imperfections” that follow in consequence of the intrusion of politicians into their contemplations. A court that is used to praying in aid Aristotelian concepts of justice (see, for example, de Burca v Attorney General [1976] IR 38) may share that writer’s suspicions as to the general merits of the democratic project and the risks inherent in its processes:

“The provision for the election of the rulers from among candidates chosen at a preliminary election is dangerous, for even if a moderate number of people choose to combine into a party, the elections will always go according to their wish.”

Aristotle, Politics, II, vi

6.59Indeed, such thinking seems to have informed another of the orders sought by the applicants in Abbeylara, asserting the inability of elected representatives to conduct inquiries of this type because of perceived structural or objective bias “arising particularly from their representative functions as elected parliamentarians.” In the circumstances, it was not necessary for the High Court to consider this issue, although it may yet fall to be decided in the Supreme Court.

6.60It goes without saying that, in our view, any attempt to belittle the work of our evolving parliamentary inquiry system as some form of political intermeddling in matters that do not – or should not – concern us ignores our role as the elected representatives of the people. It also runs directly counter to the essential thrust of a Constitution which asserts that Ireland is a sovereign, independent and democratic State and that it is the Irish people who have designated us as the rulers of the State.

6.61The history of the last century, in terms of public administration, has been one of massive expansion in the role of the State, through its executive, through the raft of public bodies that operate under the general aegis of the executive and through other bodies which operate entirely independent of the executive. It has been both natural and right that the courts have developed an expanded role in reaction to this phenomenon, primarily, and particularly since the 1970s, though the process of judicial review. It is a vital safeguard for the rights of ordinary citizens, when faced with the overwhelming powers and resources of the State, that the courts are in a position to intervene in order to confine public bodies to acting within their jurisdiction and to restrain the performance of unlawful actions.

6.62But, inevitably, the growth in executive competence and action, coupled with the increased vigilance of the courts in policing the lawfulness of public administration, has led to a generally perceived decline in the relevance of the third branch of government, the national parliament. Apart from retaining a formal role in electing the government and in assenting to government proposals for legislation, the two Houses of the Oireachtas are in genuine danger of being relegated to the same sort of status as one of the recent National Forums – a reasonably well paid and well staffed talking shop, whose members sound off on various of the issues of the day, without any real input into either the formulation of public policy or the scrutiny of its execution.

Part Seven – Some thoughts on Procedure

7.1The grail of procedural law, what procedural law strives to achieve in all cases, is a particular outcome to the judicial process – fair judgements. Procedure’s purpose is in our terminology, adjectival.

7.2In Ireland we live under a written constitution and under the rule of law, which principle is enshrined in our Constitution.

7.3The renowned British authority AV Dicey, in his Introduction to the Law of the Constitution defined the rule of law, in the British context, as having “three distinct though kindred conceptions”. The third of these conceptions, that the general principles of the constitution are in Britain, the result exclusively of judicial decisions in determining the rights of persons in particular cases brought before the courts in the absence of a written constitution, is not relevant to Ireland, which has a written constitution.

7.4However the other two conceptions are relevant to our understanding of what precisely is meant by the rule of law. These are, firstly, “that no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of the land”and secondly that, “here, every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.”¹⁵

7.5There is another feature of the rule of law, that the system of law is known, fair and predictable. This is captured in a formulation by Thomas Crothers in The Rule of Law Revival, Foreign Affairs, Vol. 77, No. 2 1998: the rule of law is “a system in which the laws are public knowledge, are clear in meaning, and apply equally to everyone. They enshrine and uphold the political and civil liberties that have gained status as universal human rights over the last half-century. In particular, anyone accused of a crime has the right to a fair, prompt hearing and is presumed innocent until proved guilty. The central institutions of the legal system, including courts, prosecutors, and police, are reasonably fair, competent, and efficient. Judges are impartial and independent, not subject to political influence or manipulation. Perhaps most important, the government is embedded in a comprehensive legal framework, its officials accept that the law will be applied to their own conduct, and the government seeks to be law-abiding.”¹⁶

7.6The broad outlines of the principles that guide procedural law are discernible in Dicey’s and Crothers’ formulations. What Dicey emphasises is that the administration of justice and the application of the law are matters for the courts and the principle of equality of treatment before the law. What we see in Crothers is principles such as openness, efficiency, independence, timeliness and predictability. Fair procedures must address and enshrine within them rules guided by such principles. Equality of treatment encompasses both as between one person and another regardless of rank and circumstance and between one case and another where the circumstances are the same – precedent.

Precedent

7.7Predictability and equality (as between one case and another where the circumstances are the same) in common law jurisdictions are secured by the rule of binding precedent or stare decisis. This has been defined as “a basic principle of the law whereby once a decision (a precedent) on a certain set of facts has been made, the courts will apply that decision in cases which subsequently come before it embodying the same set of facts. A precedent is binding; must be followed.” In turn precedent is defined as “A case which establishes legal principles to a certain set of facts, coming to a certain conclusion, and which is to be followed from that point on when similar or identical facts are before a court. Precedents form the basis of the theory of stare decisis which prevent “reinventing the wheel” and allows citizens to have a reasonable expectation of the legal solutions which apply in a given situation.”¹⁷ Precedent is a procedural requirement in respect of judicial decisions.

7.8From the late nineteenth century until the 1960s the rule of binding precedent was applied in very strong form. The lower courts followed precedents established in the superior courts and equally, the superior courts were bound to their own past decisions regardless of how far back in time and even if the result seemed ‘wrong’ or unjust.

7.9Judges have however devised ways around the fetter of the strict precedent – for example through looking for the underlying reason or reasons for or circumstances of the original decision to see if the reasons apply strictly and completely to the current dispute.

7.10In England strict precedent was formally modified by the Lord Chancellor in respect of the House of Lords in 1966 – “Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs as well as a basis for orderly development of legal rules. Their Lordships nevertheless recognize that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.”

7.11Despite the phrase “the rigour of the law”, the law is infinitely flexible and must remain in touch with change and the needs of the times. Somewhere between the rigid rule of binding precedent and giving in to, in Burke’s phrase, “every epidemical phrensy of the people”, the law and the essential art of judgeship must strive to remain normative but vitally, stay in touch with what has been termed “the needs and interests of the times.”

The seventh Order

7.12The appellants in the Abbeylara case sought a Declaration that the rules of procedure adopted by the Abbeylara Sub-Committee “did not comply with the requirements of natural and constitutional justice.” The seventh Order made by the Court in the Abbeylara case provides “(7) A declaration that the procedures adopted by the Abbeylara sub-committee do not comply with the requirements of natural and constitutional justice.”

7.13The precedent that was found by the Court in making this Order was in re Haughey (1971) IR217.

re Haughey¹⁸

7.14On 1 December 1970 the Committee of Public Accounts (PAC) was ordered by Dáil Éireann to examine specially the expenditure of a certain grant-in-aid for Northern Ireland relief and related matters (an aspect of what has come to be known as the Arms Crisis). On 23 December the Oireachtas passed the Committee of Public Accounts of Dáil Éireann (Privilege and Procedure) Act, 1970. This provided that if any person being a witness before the Committee should refuse to answer any question to which the Committee might legally require an answer the Chairman might certify the offence to the High Court. The High Court might furthermore “after such inquiry as it thinks proper to make, punish or take steps for the punishment of that person in like manner as if he had beenguilty of contempt ofthe High Court.”

7.15Hearsay evidence containing serious accusations against Mr. Padraig Haughey was received by the Committee. Mr. Haughey then attended as a witness, made a statement and then refused to answer any questions. The Committee then certified to the High Court that an offence under the Act had been committed by Mr. Haughey. After a hearing of the motion Mr. Haughey was sentenced to a term of imprisonment of six months.

7.16The decision was appealed to the Supreme Court. The Supreme Court, allowing the appeal, held that the offence created by section 3(4) of the Act was not the offence of contempt of Court. It was an ordinary criminal offence which, by nature of the penalty authorised on conviction, was not a minor offence within the meaning of Article 38.2 of the Constitution. Accordingly, the person charged was entitled to trial by jury.

7.17More importantly for future Tribunals the Supreme Court further held that there were two other aspects of the events that furnished an additional ground for setting aside his conviction and sentence. First of all the evidence against Mr. Haughey had been given on affidavit instead of orally as is required in a criminal trial. Secondly Mr. Haughey had been denied an opportunity to cross-examine the witness who gave evidence against him.

7.18It was held that the role of Mr. Haughey before the PAC was not that of a witness but that of a party accused of serious offences, whose conduct had become the subject matter of the Committee’s inquiry. Accordingly the enforcement of any rule of procedure which would deprive Mr. Haughey of his right to cross examine, by counsel, his accusers and to address, by counsel, the Committee in his defence would violate the rights guaranteed by Article 40.3 of the Constitution.

7.19In short, Mr. Padraig Haughey was no ordinary witness and the inquiry was no ordinary inquiry – if at all an inquiry in the normal sense. Mr. Padraig Haughey was effectively on trial by the point that the issue contested arose and on a serious charge. In those circumstances he was entitled to trial procedures – the panoply of rights as they have come to be referred to – outlined by the Chief Justice. The PAC by that point was not simply inquiring in the normal sense. The line of demarcation between judging and inquiring had become truly obscured and as such difficult to determine. The effect was to create a situation where the witness was in reality facing a charge – and a serious one and one that depended critically on the degraded evidence of hearsay with the hearsay simply in affidavit form.

7.20In re Haughey the Chief Justice outlined five requirements that in the circumstances before the Court must be met if the procedures adopted by an inquiry were to be adjudged as in conformity with constitutional and natural justice. The five requirements are stated at paragraph 157 of the Abbeylara decision.

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

“(a)that the person should be furnished with a copy of the evidence which reflected on his good name;

(b)that he should be allowed to cross examine by Counsel, his accuser or accusers;

(c)that he should be allowed to give rebutting evidence; and

(d)that he should be permitted to address, again by Counsel the Committee in his own defence.”

7.21The conclusion of the Court in the Abbeylara case was that the situation with which the 36 Gardai were confronted was directly comparable with the circumstances in re Haughey.

7.22The judges then proceeded to examine the procedures from the point of view of procedural law as elucidated in re Haughey and the procedures of the Sub-Committee in respect of cross-examination were found not to respect and conform with constitutional justice as elucidated in re Haughey.

7.23The Court did not treat of the rules of the Committee from the perspective of the Committee adopting the inquisitorial mode of inquiry with appropriate rules for such a mode. And there was no consideration of the case of Lawlor v Flood [1999] 3 IR 107 and the words of Murphy J in that case.

Lawlor v Flood

7.24The case arose out of the Flood Tribunal. The Tribunals of Inquiry (Evidence) (Amendment) Act, 1979 provided that a Tribunal may make such orders as it considers necessary for the purposes of its functions. For these purposes it was provided that a Tribunal had all the powers, privileges and rights of the High Court or a High Court judge in respect of the making of such orders.

7.25As part of the preliminary stage of his inquiry, Mr. Justice Flood made three orders directing Liam Lawlor TD to attend for questioning before Counsel for the Tribunal to make discovery and produce all documents relating to his accounts between 1987 and 1994 and to furnish an affidavit giving details of any company with which he was involved between 1987 and 1994.

7.26Mr. Lawlor sought to quash these orders. Before the High Court he was partially successful in getting a judicial review although the order for discovery was upheld.

7.27On appeal to the Supreme Court it was held, in dismissing the appeal that in order to interpret properly the effects of the terms of section 4 of the 1979 Act, it must be construed in the light of the entire of the Act and the entire legislative framework of which it forms part – i.e. the Tribunals of Inquiry (Evidence) Acts, 1921-1998 as amended.

7.28In the judgment of Mr. Justice Murphy the issue as to whether the rules of natural and constitutional justice apply to the same extent to a party involved in the preliminary stages of the investigation was raised. In relation to re Haughey, Mr. Justice Murphy stated that

“The question remains as to the extent to which the rules of natural and constitutional justice are applicable to an inquiry governed by the provisions of the Acts of 1921 and 1979. It can be said with confidence based on principle and the precedent of In re Haughey that where the proceedings of such a tribunal evolve into a case against a particular person rather than an inquiry into his conduct, that the appropriate rules apply. In my view it is important to recognise that the panoply of rights, as it has been described, to which Mr. Padraig Haughey became entitled as held by this Court In re Haughey arose not because a preliminary investigation had been carried out and concluded or because a witness was required to give evidence on oath but because the procedures of the Committee of Public Accounts put Mr. Padraig Haughey in a position where he was being accused of serious misconduct.

The situation was summarised by O Dalaigh C.J. at p.262 in the following terms:

“Therefore, the position of Mr. Haughey was that at a public session of the Committee held on the 9^th February, 1971, he had been accused of conduct which reflected on his character and good name and that the accusations made against him were made upon the hearsay evidence of a witness who asserted he was not at liberty, and therefore was not prepared, to furnish the Committee with the names of Mr. Haughey’s real accusers. The question which arises in these circumstances is what rights, if any, is Mr. Haughey entitled to assert in defence of his character and good name?”

“It was in those circumstances that counsel on behalf of Mr. Padraig Haughey contended that their client was entitled to have his accusers cross-examined and that he should be entitled to address, by his counsel, the Committee in his defence. The Attorney General’s argument in response was that Mr. Padraig Haughey was seeking rights which would not be available to a witness in the High Court. That argument was rejected on the grounds that Mr. Haughey was no mere witness. Again it was the then Chief Justice who said that

“The true analogy, in terms of High Court procedure, is not that of a witness but a party. Mr. Haughey’s conduct is the very subject matter of the Committee’s examination and is to be the subject matter of the Committee’s report.”

7.29The judgement of the Court appears to hinge it’s reasoning on two things. First, there appears to be an equating of the situation the Gardai faced and that which was faced by Mr. Padraig Haughey. Neither the Gardai nor Mr. Padraig Haughey were not ordinary witnesses at a tribunal. Secondly, “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.” Moreover “[the Sub-Committee] 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 absolutely necessary.”

7.30The Court concluded that, “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.”

The adversarial and inquisitorial systems contrasted

7.31In their consideration of the procedures of the Abbeylara Sub-Committee the learned judges did comment on the differences in the procedures of the Sub-Committee from the court procedure in that they were not adversarial although in that regard, they remarked that “That of itself of course is not objectionable provided that the procedures followed and the rights afforded to the person who runs the risk of having such a finding made against him comply with Constitutional justice.”

7.32The right to cross-examine must be seen in context, the context of court procedure in the Anglo-American world, the adversarial system. It is, we suggest, not the central feature of the adversarial system. Rather is the core feature of this approach to justice the position of the judge. In effect the judge is passive, a spectator. This is on the principal that was enunciated so succinctly by the noted Irish judge, Chief Baron Palles, “The judge who opens his mouth closes his mind.”

7.33The role of the judge in all of this is, as famously remarked upon by Lord Denning, in Jones v National Coal Board [1957] 2 QB 55, “In the system of trial which we have evolved in this country, the judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large, as happens, we believe, in some foreign countries.” The immediate function of a judge, he went on, was to “find out the truth and to do justice according to the law.” No one would contest the former statement as a statement of fact or the latter observation as a judicial objective, whether in the adversarial or the inquisitorial system.

7.34In the same vein are the remarks of Lord Justice Lawton, in Laker Airways v Department of Trade, [1977] 2 All ER 182, “I regard myself as a referee. I can blow my judicial whistle when the ball goes out of play; but when the game restarts I must neither take part in it nor tell the players how to play.”

7.35An Australian case, Dawson J, Whitehorn v R (1983) 49 ALR 448: “A trial does not involve the pursuit of truth by any means…the judge’s role in that system is to hold the balance between the contending parties without himself taking part in their disputations. It is not an inquisitorial role in which he seeks to remedy the deficiencies in the case on either side.”

7.36In one description of the adversarial system, by two Canadian legal practitioners, Duncan W Glaholt and Markus Rotterdam, describing the procedures in place for the resolution of complex construction disputes they observe that in respect of the system in their jurisdiction of Ontario¹⁹ “… there is little intervention at any stage of the proceeding. Discoveries, examinations-in-chief, cross examinations and arguments are left entirely to counsel, as is proper in an adversarial system, and counsel are generally left to meander among the facts and issues at will.”

7.37Earlier in their paper, commenting on the rise in common law jurisdictions of alternative dispute resolution (ADR) they remarked on how ADR was “a response to real and perceived shortcomings in our public civil litigation system. Arbitration, like litigation, however can also consume every resource in its path and leave little or nothing for the parties and this may be due, again in part, to the fact that even arbitration is conducted according to an adversarial philosophy in our jurisdiction.”

7.38In our own jurisdiction – and throughout the common law world – many would echo these remarks, applying them in a broad way to the functioning of the ordinary courts and access to justice generally.

7.39It is in this context – the judge essentially as dispassionate, disinterested and mostly silent observer of the skirmishes and battles between opposing counsel and counsel “meandering” at will among the facts – that the role and importance of counsel and of cross-examination must be seen. This is what underpins the procedural law of the adversarial system as practiced in common law jurisdictions.

7.40However this is not the only way of going about the business of justice. In the following paragraphs we set out a description of one alternative, the inquisitorial system as practiced in Germany in that country’s civil code. In setting out this description we draw parallels as appropriate with our own procedures.

The German civil code, the Zivilprozeßordnung (ZPO)²⁰

7.41“A governing principle of the German inquisitorial system is that of judicial investigation - § 139 ZPO. According to this rule, ‘the judge has the right, indeed the duty, to intervene from the outset to demand disclosure of all relevant facts, to direct the parties’ pleadings, to ask them to supplement their pleadings as and when necessary, and to take an active, leading and dominant role in the trial itself.’” Our own procedures very much followed this model with the evidence-in-chief being drawn out by the questioning of the Sub-Committee.

7.42“A judge’s duty under the inquisitorial system is to compel full disclosure of relevant facts and documents and to direct pleadings according to § 139 ZPO. This is currently one of the most controversial issues in German civil procedure. Generally speaking § 139 ZPO provides that the court has the duty ‘to discover the truth, however deeply it may be concealed, to clarify the case, and to lead the parties towards a full and effective exposition of their respective legal positions.’”

7.43“Upon the case being called to trial, the court and not counsel “opens” the case by introducing and outlining the facts and legal issues at stake, outlining the scope of the inquiry that will be undertaken. Thus, the parties know in advance how the court views their case and can direct their efforts accordingly.” The role of the Opening Statement in our own proceedings is not dissimilar.

7.44“In Germany, potential witnesses are identified by the parties, § 373, and summoned by the Court, but unlike our system they may be summoned by the Court ex officio if the parties have named them on a witness list. § 273 II No. 4. (…) The court and not counsel requests the witnesses’ personal data before asking them to tell the court what they know about the case. The order of witnesses is determined by the Court and there is no prohibition on the recall of witnesses and no concept equivalent to the ‘splitting’ of a case.” Our own procedures, including in respect of recall of witnesses, could be said broadly to follow this approach.

7.45“Although counsel still retain a good deal of control over the naming of witnesses in an inquisitorial system, they have significantly less control than we do [in common law jurisdictions] once their witness is in the box.” We would remark that, in the case of our parliamentary inquiries we have dispensed with as inappropriate in the circumstances, the “box” and, as with the US Congressional system, take evidence to the extent possible in the form of simultaneous sworn testimony.

7.46“The role of counsel under an inquisitorial system is much reduced. Any requests by counsel for clarification of the evidence being given by a witness is directed toward the bench and then by the bench to the witness: § 396 II ZPO, § 397 I. In effect, counsel discuss with the judge the direction of the Court’s enquiry. While § 397 II ZPO holds that the court may allow the parties themselves to address a witness directly, and must allow counsel to do so if they ask, both the parties and counsel are actively discouraged from embarking on any form of extensive examination or cross-examination. This is considered the court’s responsibility. (…) Finally, and most remarkably, there is absolutely no inherent right to cross examine witnesses in the German system.” We do not go as far as the German system: the right to cross-examine is recognized and in our Inquiry it was allowed, if controlled.

7.47“Under the German inquisitorial system … the court asks the questions, counsel assists the court. Although an expert may be challenged by counsel for prejudice, there is no actual cross-examination of expert witnesses by counsel. The court freely evaluates expert opinions, like all other evidence, without this evidence having been tested by formal, adversarial cross examination, § 286 ZPO. A judge is not obliged to believe particular testimony, even if it is the only testimony on a given point, neither does he or she have to credit inconclusive expert opinions. A point is proven only if the court is convinced it is true.” On the role of counsel as assisting the inquiry in our own case, the following, at paragraph 16, is from the Chairman’s Opening Statement of 18 July:

“I now turn to the right to cross-examine. Cross-examination will be allowed. However I would propose to have the exercise of this right reserved to the closing stages of our public hearings. Witnesses’ legal representatives may also approach the Sub-Committee’s Counsel during the hearings if there are any matters or questions that they wish to have put to other witnesses. There is precedent for this approach in the procedures of the PAC Inquiry into DIRT. At that Inquiry, it was decided to keep any cross-examination to the end of the proceedings. However parties and their Counsel also had the option of approaching Counsel to the Sub-Committee and were encouraged to do so during the Hearings with any matters they wished to have put to other witnesses. I am also aware that this form of procedure in respect of cross-examination was practiced at the Stephen Lawrence Inquiry in the UK. I quote the words of William MacPherson of Cluny, Chairman of the Stephen Lawrence Inquiry in Britain, on the question of cross-examination: “I do ask well in advance that such cross-examination as may be allowed should be short, relevant and carefully aimed.””²¹.

7.48We also consider relevant the comments of Keane CJ in our own case, McDonnell v Brady and others, at pages 20, 21:

“36. It is, in any event, beyond doubt that the applicant has been afforded important safeguards which will be of assistance to her in defending her late husband’s reputation against unjust attack. The sub-committee allowed her to be legally represented, although she is clearly in a significantly different position from those persons still alive who have an admitted and indisputable constitutional right to the vindication of their good name. Her legal representatives are entitled to cross examine any witnesses whose testimony may be in any way damaging to the interests she seeks to protect and, while it is doubtless always preferable to be able to mount an immediate challenge by way of cross examination to such evidence, it is, at least arguably a matter for the sub-committee to determine the time at which such cross-examination should be conducted. That is an issue which will have to be resolved in the High Court during the course of the present proceedings, but it certainly does not, of itself, constitute a denial of constitutional and natural justice such as to demand the intervention by the High Court in the form of so drastic a weapon as an indefinite stay of the sub-committee’s proceedings.

37.Nor can one disregard the fact that the effect of granting the stay, given the relatively small number of witnesses still to be examined, will be to defer, rather than expedite, the cross-examination by the applicant of any of these witnesses. It will also have the undesirable consequence of deferring the cross-examination by other interested parties of any of these witnesses.”

7.49“In Germany, parties have to submit documents if they have referred to them in any way (§ 423 ZPO), or if the court orders production (§§ 142, 143, 273 II No. 1 ZPO), or if substantive law demands production (§ 422 ZPO, with § 810 BGB as the most important case). If a party refuses to submit documents that it must submit under substantive law, the other side must actually commence a separate suit to compel production. A trial under an inquisitorial system trial can therefore come to resemble an ongoing discovery. As the inquisitor has full jurisdiction to call and recall witnesses to establish the truth behind a dispute, the process of documentary production is active and ongoing throughout the trial process and does not depend entirely on the good judgment or skill of each side’s advocates and avoids the conflict of interest inherent in our rules whereby each adversary makes the threshold decision about relevance of its own documents.” Again our own procedures have broadly followed this model.

General remarks

7.50In many jurisdictions within the common law tradition reform of the courts, court procedures and access to justice are adopting hybrid principles – aspects of the inquisitorial system – while beyond the Anglo-American system much of the rest of the world applies the inquisitorial approach. Do all of our continental EU partners live in a world of injustice and without the benefits of the rule of common law and accusatory justice?

7.51The thrust of reform within the common law system is in the direction of further adapting to the inquisitorial system – for example there is the advocacy of the adoption of case management and managerial judges and managerial judging. This, from Australian Law Reform Commission Information Paper 20, 1997:

“5.2The term ‘managerial judging’ is used in this paper to refer to forms of procedural intervention used by judges in pre-trial and trial litigation processes to address problems of delay, cost and unfairness in civil litigation.

5.3Managerial judging often takes place in the broader context of a case management system, used by courts to control the progress of cases generally. Managerial judging and case management shift the balance towards judicial rather than lawyer or party control of litigation. Another aspect of this form of judicial activism is that sometimes judges act in a ‘facilitative’ rather than an adjudicative manner, that is, by encouraging the parties to settle their dispute. Judges may practice managerial judging in a range of ways … ”

7.52An inquiry is not a trial or a civil action. Fundamentally, it is not engaged in dispute resolution although during an inquiry disputes no doubt arise and it falls to the inquirer to make ‘judgements’ or ‘decisions’ in a colloquial sense as opposed to the strictly legal sense. Similarly with the term ‘findings of fact’.

7.53Sir Richard Scott, sole member of the (British) Arms for Iraq Inquiry, in a paper, Procedures at Inquiries - the Duty to be Fair, The Law Quarterly Review, Vol. 111, October 1995, has observed that, “In an inquisitorial Inquiry there are no litigants. There are simply witnesses who have, or may have, knowledge of some matters under investigation. The witnesses have no “case“ to promote. It is true that they may have an interest in protecting their reputations, and an interest in answering as cogently and comprehensively as possible allegations made against them. But they have no ‘case’ in the adversarial sense. Similarly, there is no ‘case’ against any witnesses. There may be damaging factual evidence given by others which the witness disputes. There may be opinion evidence given by others which disparages the witness. In these events the witness may need an opportunity to give his own evidence in refutation. But still he is not answering a case against himself in the adversarial sense. He is simply a witness giving his own evidence in circumstances in which he has a personal interest in being believed.”

7.54Also, the inquiry, while it may make findings of fact and decisions in respect of matters in dispute, in the end falls short of a legal process in that it does not have a power of sanction.

7.55We have adopted a creative approach to the process of parliamentary inquiry, one with the ambition of ensuring that the process does not, through cost and time, “consume every resource in its path.” Our ambition is short, focused hearings.

7.56We also strive to achieve fairness – fairness in our procedures and fairness in our conclusions.

7.57And also, we return to the concept that so outraged Lord Denning, the conduct of “an investigation or examination on behalf of society at large, as happens … in some foreign countries.”

7.58It is such considerations – the nature of inquiries, the comprehensive concept of procedural fairness encompassing openness, timeliness, focus and efficiency that the parliamentary mode of inquiry has developed rules and procedures that have the character of the inquisitorial system – such as in for example, the German Civil Code, the Zivilprozeßordnung or ZPO as outlined above.

7.59It is now for the Supreme Court to determine the extent to which these procedures that we have developed and adopted are in conformity with constitutional and natural justice in the construction of the current Constitution. If not, in our view the parliamentary form of inquiry based on inquisitorial procedures as developed will have been so limited effectively as to make it in practice in many instances unusable. In those circumstances significant issues of constitutional policy will fall to be considered by the National Parliament. An effective parliamentary power of enquiry is in our view essential to the relevance of parliament to public life in a modern-day representative democracy.

Part Eight – Concluding remarks

8.1The proceedings of this Sub-Committee cannot resume because we are not permitted to resume.

8.2The issue for the Sub-Committee and for the Oireachtas is no longer what happened to public resources, including EU monies and how and the manner in which they were, to quote the Supreme Court “applied for the purposes of a statutory body”, which inquiry the Court acknowledged, at page 19 of its decision, was “being conducted in the public interest”. The issue has become the extent to which the Oireachtas can be permitted to exercise its legislative function and in that regard, discover an inherent ancillary or adjectival power to inquire in discharging this constitutional function.

8.3Furthermore, the impact of the interaction between the Abbeylara decision and the inability of the High Court to give us an early hearing for our own case is such that the right of the family of the late Mr. Michael McDonnell to complete its cross-examination has ultimately been denied, let it be stressed through no fault of the Sub-Committee.

8.4Not only that, but the right to make concluding submissions due to have been made by various interested persons, has in effect disappeared, again through no fault of the Sub-Committee.

8.5There is furthermore the possibility that with the dissolution of the Dail and given the legal character of the institution, the case of McDonnell v Brady and others becomes moot. In such a situation a number of key issues, for example, the question of costs, the matter of cross-examination in the context of our inquiry, the issues of pre-judgment and bias, that are before the High Court, fall. We believe that, to the extent necessary, steps should be taken to ensure that the McDonnell case is completed.

8.6Finally, there are implications that do or may arise from the failure to complete the inquiry and to produce a report. Disputes, arguments and differing accounts of events have been ventilated and in public, with accompanying media attention and reporting of our proceedings. Our proceedings were also broadcast on television. However we cannot now complete our inquiry or proceed to draft and publish a report. Whose interests, if any, are damaged by such a development, the emergence of which it was beyond the power of the Sub-Committee to influence or control?

8.7In the circumstances that exist the Sub-Committee has resolved that

1.That the Sub-Committee confirms its continuation in existence after the adoption of its interim report and until the dissolution of the 28^th Dail; and

2.That the Sub-Committee may if it sees fit in the circumstances make a report or reports subsequent to its interim report.

8.8The Sub-Committee awaits the decision of the Supreme Court in the Abbeylara case and looks to an early date for the hearing in the High Court of McDonnell v Brady and others.

Part Nine – Orders of Reference and Membership of the Sub-Committee and the Joint Committee on Public Enterprise and Transport

Orders of Reference

An Comhchoiste um Fhiontair Phoiblí agus Iompar

An Fochoiste um an Tionscadal

Comharthaíochta Lár-Rialú

Tráchta Mionscála

Teach Laighean

Baile Átha Cliath 2

Joint Committee on Public Enterprise and Transport

Sub Committee on the Mini-CTC

Signalling Project

Leinster House

Dublin 2

Tel. (01) 618 3000

Fax (01 618 4124

Orders of Reference

Sub-Committee on the Mini-CTC Signalling Project

3 July 2001

a)The circumstances, surrounding the entering into and performance of the Iarnród Éireann Mini-CTC and Knockcroghery signalling projects and the Esat/CIÉ cabling and telecommunications project and related matters be inquired into and reported on by the Sub-Committee on the Mini-CTC Signalling Project to the Joint Committee on Public Enterprise and Transport, taking into account progress already made on the matter by the Joint Committee and any Sub-Committees thereof;

b)the sub-Committee shall consist of 6 Members of Dáil Éireann;

c)the quorum of the Sub-Committee shall be three;

d)the sub-Committee shall have the powers of the main Committee as contained in Standing Order 78A(1), (2) and (4) to (9) (Dail) and in Standing Order 65 (1), (2) and (4) to (9) (Seanad).”.

e)Without prejudice to (a) above, the Sub-Committee shall have the power, pursuant to Standing Order 78A (3) (Dáil) and Standing Order 65 (3) (Seanad), to report directly to the Dáil and Seanad on this matter and, pursuant to Standing Order 79A (1) Dáil and Standing Order 69 (1) (Seanad), to print and publish any such report or reports, together with any documents relating thereto.

Membership of Sub-Committee

Martin Brady TD

Austin Currie TD

Sean Doherty TD (Chairman)

Jim Higgins TD (Mayo)

Noel O’Flynn TD

Pat Rabbitte TD

Members of the Joint Committee on Public Enterprise and Transport

Deputies

(Select Committee of the Dáil)

Liam Aylward (FF)

Martin Brady (FF)

Richard Bruton (FG)#

Donal Carey (FG)#

Austin (FG) (Convenor)

Brendan Daly (FF)

(Vice-Chairman)

Seán Doherty (FF) (Chairman)

Jim Higgins (FG)#

Noel O’Flynn (FF)

Sean Power (FF)

Pat Rabbitte (Lab)^

Dick Roche (FF)

Trevor Sargent (GP)

David Stanton (FG)~

Senators

(Select Committee of the Seanad)

Peter Callanan (FF)

Ernie Caffrey (FG)

John Cregan (FF)*

Liam Fitzgerald (FF)

Shane Ross (Ind)

An Comhchoiste um Fhiontair Phoiblí agus Iompar

Joint Committee on Public Enterprise and Transport

An Fochoiste um an Tionscadal Comharthaíochta Lár-Rialú Tráchta Mionscála

Sub Committee on the Mini CTC Signalling Project

Imeachtaí An FoChoiste

Proceedings of the Sub-Committee

Dé Déardaoin, 4 Aibreán 2002

1.The Sub-Committee met at 12 noon in G2, Kildare House.

2.Members Present

The following members were present:

Deputies Seán Doherty (Chairman),Austin Currie, Jim Higgins, Pat Rabbitte

3.Draft Interim Report

The Sub-Committee agreed the Draft Interim Report as amended.

It was agreed to lay the Interim Report before both Houses of the Oireachtas.

4.Adjournment

The Sub-Committee adjourned at 1.08 p.m.

¹ From Statement of Mr. Tom Considine, Secretary General of the Department of Finance regarding his Department’s Report of 11 January 2002 on implementation of the Recommendations of the Final Report of the parliamentary Inquiry into DIRT. Public Accounts Committee, Tuesday 19 March 2001. The Bill was published on 29 March 2002. The text of the Bill may be accessed at http://www.irlgov.ie/finance/publications/legi/oireachtas.pdf

² The Sligo Lighting and Electrical Power Act, 1924 and The Pilotage Orders Confirmation Act, 1924.

³ See Volume 3 of the DIRT Inquiry Final Report – Verbatim Transcript, pp156-7.

⁴ See Volume 3 of the DIRT Inquiry Final Report – Verbatim Transcript, p158.

⁵ Ibid., p157.

⁶ Ibid., p161.

⁷ The text of Rosenberg’s paper is available online at http://www.house.gov/rules/95-464.htm#N_2_

⁸ E.g., McGrain v. Daugherty, 272 U.S. 135 (1927); Watkins v. United States, 354 U.S. 178 (1957); Barenblatt v. United States, 360 U.S. 109 (1950); Eastland v. United States Servicemen’s Fund, 421 U.S. 491 (1975); Nixon v. Administrator of General Services, 433 U.S. 425 (1977); see also, United States v. A.T.T., 551 F.2d 384 (D.C. Cir. 1976) and 567 F.2d 1212 (D.C. Cir. 1977).

⁹ 421 U.S. at 504, n. 15 (quoting Barenblatt, supra, 360 U.S. at 111).

¹⁰ 354 U.S. at 187.

¹¹ Id.

¹² Id. at 182.

¹³ Id. at 194-95

¹⁴ Id. at 200 n. 33.

¹⁵ Chapter IV, The Rule of Law: Its Nature and General Applications, Introduction to the Law of the Constitution, AV Dicey, 1915 edition, re-published 1982 by Liberty Fund, Indianapolis.

¹⁶ http://www.ceip.org/files/Publications/rulelaw.asp?from=pubauthor%20

¹⁷ Both definitions taken from the on-line dictionary of law compiled by the Canadian lawyer, Lloyd Duhaime at http://www.duhaime.org/diction.htm

¹⁸ This consideration of re Haughey and of Lawlor v Flood at paragraphs [number] below is adapted from the discussion of the case contained in the Final Report of the DIRT Inquiry which drew on a report, Comparative Study of Parliamentary Inquiries and Tribunals of Inquiry, Office of the Attorney General. Study made on the recommendation of the Sub-Committee on Certain Revenue Matters.

¹⁹ Toward an Inquisitorial Model for the Resolution of Complex Construction Disputes, Duncan W Glaholt and Markus Rotterday of Glaholt & Associates, Barristers and Solicitors, Toronto, Ontario. March 1998. Available at http://www.glaholt.com/Inquisitorial.htm

²⁰ The following commentary draws extensively on Glaholt and Rotterdam, op. cit.

²¹ The Stephen Lawrence Inquiry. Report of an Inquiry by Sir William MacPherson of Cluny advised by Tom Cook, the Right Reverend Dr John Sentamu and Dr.Richard Stone. Presented to Parliament by the Secretary of State for the Home Department by Command of Her Majesty. February 1999. Volume II, Appendix 3. http://www.official-documents.co.uk/document/cm42/4262/4262.htm

# Appointed in substitution for Deputies Simon Coveney, Phil Hogan, Billy Timmins and Ivan Yates on 29/06/2000

^ Appointed in substitution for Deputy Emmet Stagg on 22/03/01

~ Appointed in substitution for Deputy Olivia Mitchell on 29/03/01

* Appointed in substitution for Senator Des Hanafin on 13/07/99