Good morning. The committee was kind enough to invite me here two weeks ago, so the first three pages of my presentation are a compressed summary of what I said then. The remainder, which is more of a discussion of what might be done, contains some new material.
As we know, by a five to two majority, the Abbeylara inquiry established that there are significant limitations on the power of Oireachtas committees to hold investigations. This demonstrates that the Parliament has significantly less power in this field than its equivalents in almost all other European Union states. There is a good paper from the Oireachtas Library and Research Unit, prepared by Golda Hession, which will be available to members if they do not have it already. It fills in the details of the matter.
One of the features from the Abbeylara case is that the limitations varied from one judgment in the majority group of five judges to another. It is difficult to advise on the basis of it simply because there is great uncertainty. In practice, if the Oireachtas is considering whether to set up a committee with various other pressures on it, the last thing it wants is uncertainty in the law. I will return to this later.
In the Supreme Court hearing on Abbeylara, the gardaí whose conduct was under investigation successfully sought judicial review and essentially took five points, which I will go through very briefly, with emphasis on the fourth and fifth points, which are the most significant. The first point related to the error which was said to be found in getting permission to compel witnesses to appear. That is something related not to the constitutional scope of the Oireachtas or its committees but simply to the terms of the 1997 Act. It could be addressed by modifying the Act. What comes from this in terms of operating an inquiry is that the more simple the better. The more complicated a procedure is, the more difficulties involved in it.
The second point relates to the first rule of fair procedure, sometimes called constitutional justice, the no bias rule. The second rule is more tricky to operate in practice. Several of the judges in the Abbeylara matter held that it was undesirable or wrong for persons sitting in quasi-judicial positions to make themselves available for media interview or to participate in public discussions. This relates to sittings of something like the role of the Judiciary because something like a crime was at issue in that case. That is something which must be considered, although it is not in the Constitution. If discussing the Constitution, my opinion is that we should think about baggage so that all parts will be on the table and it may be necessary to have a protocol addressing that kind of conduct.
The second point hummed and hawed about in the Abbeylara judgment was that of structural bias, sometimes called institutional bias. This conveys the idea that members of an institution subject to party discipline might be inherently biased. This was considered but not ruled upon by the court. If there were a constitutional amendment, that difficulty would be lifted out of the way.
The third point is the other leg of fair procedure, which is the idea that a person whose good name is in jeopardy from the report or even the evidence-taking of a committee is entitled to full re Haughey representational rights. That is deduced from the Constitution in this other landmark case of re Haughey and short of a very radical amendment to the Constitution, nothing can be done about that. An exception may be possible if the committee sits in private or if the person whose character may be at issue waives the re Haughey rights. We could talk about that later perhaps.
The fourth aspect of the Abbeylara case was that some of the judgments held that there may not be authority to hold an inquiry. That could be put right by amending the main Act in this field, which is the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities) Act 1997. For reasons I will come to later, my view is that a constitutional amendment would be required. That is to some extent tied to the fifth and most difficult point.
This relates to the subject matter of the inquiry into the death by shooting which was before the Oireachtas committee dealing with justice regarding the Abbeylara case. There were two features to the subject matter in the view of the majority. The first is the inquiry into the conduct of "individual citizens". It seems a bit of a stretch to apply this to gardaí on duty but the distinction which Mr. Justice Hardiman was establishing there is clear enough; it is between private individuals and companies and public servants, or possibly the narrower term of civil servants, on the other hand. He may have even restricted it to identifying Ministers rather than humble civil servants.
A second aspect was that the committee's terms of reference, according to the court, required it to consider whether to make a finding of unlawful killing, which is more or less a definition of manslaughter. The courts seem to have regarded this term of reference as tantamount to asking the sub-committee to find whether identified gardaí had committed a serious criminal offence.
On a narrow reading of the Abbeylara case, one could say the terms of reference were unusual by reference to what Oireachtas committees usually investigate, and the court reacted with a rather extreme judgment, with hard cases making bad law. If that is followed through, perhaps one could take the view that a constitutional amendment is not required. On the other hand I shall argue later that it seems there is much doubt in this area, which is very difficult when there is an assembly subject to all kinds of political and media preference. The law should be as definite as possible.
I was asked to refer to the minority in the Abbeylara case. There were two dissenting judgments, with one from Chief Justice Keane. That judgment held that the undoubted constitutional right of each individual garda to his good name did not preclude the proposed inquiry. He said that the right to a good name in this instance had to be balanced against the right and the duty of the Oireachtas to inquire into matters relevant to its constitutional function. He was one of two dissenters who were outvoted. I should emphasise that my understanding of this committee is that it is not concerned with academic law or whether Chief Justice Keane had the better of the argument in some kind of legal terms. We have this Abbeylara decision and if anything like it came to the Supreme Court now, although the personnel have changed, the court would not change its mind and follow the minority.
The other issue to be cleared out of the way is the significance of the Curtin case, in which the Oireachtas investigated the behaviour of a Circuit Court judge. Its duty and authority to do so is established specifically in a special part of the Constitution, Article 35.4. In my judgment it does not have anything to say about the width of the Oireachtas's general power in areas not involving the removal of a judge.
I will consider what may be done about this. The first question is whether there should be a constitutional amendment to give the Oireachtas the power to hold inquiries. This is mentioned in the constitutions of most member states and, as I noted, it is set out in chapter and verse in the excellent briefing paper prepared by the Oireachtas Library and Research Service. The reason this power is not mentioned in either the 1922 Constitution or the 1937 Constitution is because it is not spelled out in respect of the British Parliament. However, this is because of the unique character and history of the UK's unwritten constitution. A Parliament with roots in the 13th century is not a helpful model for a country with a more normal history. The drafters of the 1922 and 1937 Constitutions were misled into thinking it did not have to be mentioned here. My first suggestion is that the power to hold inquiries should be specified in the Constitution, partly because of the uncertainty that surrounds it. A provision could simply state: "The Oireachtas, through its committees, shall have the power to inquire into matters of public importance". I warn members that I have included in my paper various forms of wording simply because I think a definite formulation is a useful basis for discussion. I am not advocating that my suggestions should be put into the Constitution but I find it easier to work when something is on the table for discussion.
Some of the majority judges in the Abbeylara decision hinted that the purpose of an inquiry by the Oireachtas should be related to legislation, presumably because the Oireachtas is the Legislature. However, that would limit its power and it is also relevant to note that the Dáil is the entity to which the Government is responsible under Article 28.4 of the Constitution. This means that the duties and powers of the Oireachtas extend to Government activities and, in light of developments in the 20th and 21st centuries, it is only reasonable to extend these duties and powers to the entire public service. I advise that wide general words such as "public importance" should be used.
In regard to the question of whether limits should be imposed on the scope of powers of inquiry, it is easy to say we do not need to be concerned with what was said in the Abbeylara case because we are changing the Constitution. Such a response may be imprudent given that the judgment drew on well-established legal doctrines and if one does not pay some heed to it, one may end up with an extreme sort of amendment. Such an extreme amendment might resemble section 1 of the Tribunals of Inquiry (Evidence) Act 1921, that is: "a definite matter described in the [Oireachtas] resolution as of urgent public importance". One might add on the power to find that a criminal offence has been committed by an identifiable individual. Such a provision would have to be included in the Constitution if one wanted to fully reverse the Abbeylara judgment. I will leave it to members to decide whether to do so, although I am hinting it would not be a good idea.
Alternatively the provision could state: "but not including the power to find that a criminal offence has been committed by an identifiable individual". By way of comparison, while I used the term "criminal offence", the Abbeylara judgment used the word "culpability", which sounds broader and more vague. I would not recommend the inclusion of "culpable" because it would grant too little power to the Oireachtas.
The extent of the powers needed by an Oireachtas committee is worth considering. There is no point in proposing a constitutional amendment which bestows such a wide power as to make it controversial if it is not going to be used. John O'Dowd from University College Dublin wrote a lengthy review of the use made of the power of investigation by the Oireachtas until the 1990s. He concluded that, in terms of investigative committees, the proposals were for the most part a means of ventilating political differences and hostilities rather than serious attempts to inject life into the select committee system as a means of investigating issues of public importance. To take an example, the Oireachtas might want to mount an inquiry into the causes of serious crime but would it want to name big criminals and, if so, where would it find its information?
There are areas into which the Oireachtas ought to be able to inquire but where its powers to do so have been cast into doubt by the Abbeylara decision. It is well known that Abbeylara has interfered with the ability of the Committee of Public Accounts and other committees to comment frankly on the waste, or worse, of public moneys. This is despite the fact that the Committee of Public Accounts is the most respected and longest established Dáil committee and has a quasi-constitutional status. Another example is the inquiry by the Joint Committee on Public Enterprise and Transport into the overrun on the mini-CTC signalling project in 2001, just after Abbeylara. All the evidence had been collected but the committee felt it should not publish its report. This, in my opinion, represented an infringement of the legitimate rights of an Oireachtas committee. I am sure members can come up with other examples. I suggest they do a stock take and ask themselves what precisely is needed. Clearly, one has to allow for future growth. Candidates for public bodies might, for example, be required to appear before an Oireachtas committee. It might be useful for the committee to determine the necessary scope for public inquiry.
A distinction can be made between making a finding on the primary facts, such as that an official charged a Department for several air trips to Paris when there was no need for them, and making a criticism or giving an opinion. An example of this might be where a committee wanted to find that there was a management failure, extravagance, favouritism or breach of reasonable standards. I am deliberately not going into criminal offences but it appears reasonable that it should be possible for this to be done. Any amendment might want to make it clear that the power of inquiry extends beyond making a finding on primary facts but also takes in the making of a criticism or, possibly, suggestions for improvement.
Naturally any amendment of the Constitution will only be a few words long but to become operational, an Act of the Oireachtas is needed. The present one is the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities) Act 1997. The two are a package so that I think it would be wise if this committee was to consider whether it needs an amendment and, if so, what it might be. If it is going for an amendment, what Act of the Oireachtas would implement the power to hold inquiries? Should it be the 1997 Act, as amended, or should the 1997 Act be replaced? It would be sensible to consider the two together and probably to publish any proposed amendments or change to the 1997 Act so that people can see when they are voting if there is an amendment. Otherwise it may be said that people are buying a pig in a poke. Something like that was done with the divorce amendment in 1997 when the amendment was published together with the implementing legislation. Does the Chairman wish me to stop at this point to allow for questions or discussion?
