I welcome Mr. O'Dowd. I thank him for coming in to visit us today and am glad he got here despite the snow and sleet.
Article 15 of the Constitution - Review of Parliamentary Power of Inquiry: Discussion
Mr. John O’Dowd
I allowed myself an hour to get here from Stillorgan.
Very good. The committee is continuing its hearings on the review of the parliamentary power of inquiry. Today we will hear from Mr. John O'Dowd, lecturer in the school of law at UCD. I thank him for the paper he submitted which has been circulated to members. We thought it would be helpful to the committee to get Mr. O'Dowd's insight into this matter, as he has written persuasively on this subject in the past.
Before we commence, I must inform Mr. O'Dowd that by virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of the evidence they give this committee. If witnesses are directed by the committee to cease giving evidence on a particular matter and they continue to do so, they are entitled thereafter only to a qualified privilege in respect of their evidence. Witnesses are directed that only evidence connected with the subject matter of these proceedings is to be given and are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable. I invite Mr. O’Dowd to commence his presentation.
Mr. John O’Dowd
I thank the members of the committee for the invitation to address them today. As I indicated in the paper I circulated, the main focus of my remarks will be on what form a constitutional amendment might take to deal with the decision in the Maguire v. Ardagh case. I have summarised in the paper some of the main features of the decision as I understand them, the salient issues that arise, and I will talk a little about those. However, my remarks are mainly directed towards the concept of an amendment, namely, what sort of constitutional amendment might appropriately be introduced to reverse - although "reverse" is a rather strong term - or, as one might say, to qualify or clarify as much as reverse what the Supreme Court had decided in the Abbeylara case.
I want to refer briefly to a decision in the courts in Hong Kong. I met Lord Lester, QC last week at an ICCL fund-raising function. He had kindly pointed out to me that the decision in Maguire v. Ardagh has been considered by the courts in Hong Kong in a case dealing with an inquiry by a committee of the legislative council there. I draw it to the committee’s attention because, perhaps not inappropriately, it involves a failed property development in Hong Kong. A number of property developers had entered into a public private partnership with the housing department of the Government of Hong Kong and as a result of the difficulties they encountered, the two property developers negotiated an agreement with the head of the housing department in Hong Kong. That would have been quite unexceptional except that on retirement the same civil servant was appointed to the board of directors of the company. Naturally this caused a degree of public controversy in Hong Kong, as a result of which he had to step down.
The relevant committee of the legislative council in Hong Kong sought to investigate this and, in the course of that investigation, counsel for the two developers laid considerable stress on the Supreme Court decision in Maguire v. Ardagh as indicating that a parliamentary committee could not investigate the specific circumstances in which a former civil servant had taken up a position on the board of directors of such a company because it would be outside the proper functioning of a parliamentary committee. Lord Lester, who appeared for the legislative committee, was quite pleased that the Court of First Instance in Hong Kong was not persuaded by Maguire v. Ardagh that the committee’s powers were limited in that way and the challenge by the developers was effectively rejected.
One could exaggerate the extent to which the Hong Kong court was directly rejecting Maguire v. Ardagh because the issues in that case were somewhat different. The main issue was whether the legislative council as a whole could delegate its power to investigate to a committee. It is not surprising that the court held that it could delegate such a power because the Dáil or the Seanad as a Chamber could not really exercise the power to call witnesses and conduct an examination of those witnesses. That was a quite straightforward point.
Did the court look further into the issue of the rights of the people who were being investigated and how they might best be protected before such a committee?
Mr. John O’Dowd
There was no detailed discussion of that aspect of the procedure to be adopted. In fact, the court emphasised that there was a major distinction between Ireland and Hong Kong. The judge in Hong Kong did not think there was any equivalent there of the strong guarantee of the right to good name which exists in our Constitution. That distinction was drawn.
Another point that should be made is that the judge held that although the courts did have a jurisdiction to judicially review a parliamentary committee, it was not generally appropriate for them to exercise it except in the most clear cut cases, so there was a degree of judicial restraint employed. The judge, Mr. Justice Chung, held that Maguire v. Ardagh reflected a different balance between the right to good name and the right of parliament to investigate, but he did so on the basis that there was no equivalent provision such as exists in Article 40.3.2° of our Constitution, which guarantees a good name, in the basic law of Hong Kong. I have noted in the paper that one could quibble with that, perhaps, in that the basic law in Hong Kong incorporates the International Covenant on Civil and Political Rights into the constitutional law of Hong Kong. Article 17 of the covenant, and Ireland is a party to that covenant, contains a protection to the right to reputation, so it is an international human right which should be recognised in Irish law.
The other main issue in the paper is the scope of Maguire v. Ardagh and what exactly that case decided. I have indicated in the paper that a variety of views were expressed in the majority judgments. In Mr. Justice Geoghegan’s and Ms Justice McGuinness’s judgments they discuss hypothetically the scope a parliamentary committee, conducting an investigation involving the use of the powers given by the 1997 Act, would have to make findings which might incidentally reflect adversely on the good name of an individual. It is important to note that the declaration given by the Supreme Court was quite narrow. It was much narrower than the declaration given by the High Court in that it was limited specifically to the type of inquiry that the sub-committee was seeking to undertake in that case which might lead to findings that named individuals had been responsible for an unlawful killing.
The Chief Justice in Maguire v. Ardagh makes it clear that the declaration has been limited carefully so as not to prejudge the wider issues as to how far a parliamentary committee might incidentally conduct an inquiry which could adversely affect a person’s good name. Some of the examples Mr. Justice Geoghegan and Ms Justice McGuinness give, of course, are inquiries into systems of management in the public service that might lead to implied blame, at least, being attached to the chief executive of a public body, for example, or a particular civil servant. Generally, however, the scope of that is somewhat limited in that the majority of judges in Maguire v. Ardagh emphasised that such an inquiry would have to have a clear relationship to the legislative function which the Oireachtas has, and I believe they understand that legislative function in a quite narrow sense of being connected with the consideration of whether a particular legislative measure or proposal that is before the Oireachtas would be desirable.
As I say in the paper, perhaps that overlooks the fact that a national parliament has a somewhat wider function than that - to be a forum for debate on issues of public concern even if there is no specific legislation. I have also noted in the paper that Mr. Justice Geoghegan takes a realist view, one could say, of the legislative function of the Oireachtas. He says that basically the Oireachtas does not originate its legislation but merely considers the legislation the Government has thought fit to bring forward. Therefore, he did not think there was much reality in the suggestion that a parliamentary committee needed the power to investigate the facts on which legislation ought to be based.
With regard to the main concern of the judges in Maguire v. Ardagh, which was whether Deputies and Senators could be fair in their dealings with people who appeared before them, I have included a picture of Senator Joe McCarthy because he is specifically mentioned in Mr. Justice Hardiman’s judgment in Maguire v. Ardagh. The general concern of the majority was that, not wishing to cast aspersions on individual Deputies or Senators in any way, the nature of an elected public representative’s position means that he or she may be more anxious to make a public statement and to ventilate the quite legitimate concerns, fears and anger that his or her constituents might have, but in a way that is not really consistent with a proper observance of fair procedures.
All the judges agreed, at least those who commented on the matter, that there was no question of institutional bias, meaning that Deputies and Senators could not possibly carry out a fair inquiry because of their position as elected representatives. They all emphasised, however, that the rule against bias in particular and the need not to make statements that might prejudge the outcome of an investigation or inquiry could be difficult in practice for Deputies and Senators to adhere to while at the same time zealously representing their constituents and putting forward their own political views or those their constituents have communicated to them.
There are difficulties there and, as I say in the paper, in re Haughey poses a separate set of difficulties. It is arguable that in re Haughey is too court-centred a view of what fair procedures involve and is based on the assumption that the only way one can guarantee fair procedures is to mimic what happens in a court of law. Even then, there is something slightly anomalous about in re Haughey because an ordinary witness appearing in civil or criminal proceedings does not have the same protections for his or her good name that someone who is the target of a parliamentary inquiry would have in re Haughey.
One could mitigate that by a constitutional amendment, which I will return to in a moment. I have also indicated in the paper that one could mitigate it by following the model of the Commissions of Investigation Act 2004. A large part of the constraint that in re Haughey imposes is with regard to public hearings, where allegations are put to witnesses and considered before any view is formed by the investigating body as to whether they are true, because the investigating body should have filtered them out before letting them go to a public hearing. The commissions of investigation successfully avoid many of the restrictions that in re Haughey imposes by having hearings otherwise than in public and generally merely publishing a final report in which the investigation presents its conclusions. A Dáil committee could function in that way, quite clearly, but it might not be very satisfactory to Deputies and Senators that an investigation would be conducted behind closed doors and that the publicity that hearings would involve would not be available.
A point I passed over but which I should have commented on is that Maguire v. Ardagh holds that there is no inherent power to conduct that particular type of inquiry. The judges leave open the question of whether legislation could be passed which would give the Oireachtas, or a committee of the Oireachtas, the power to conduct that type of inquiry. One can gather, from the majority judgment certainly, that the judges as citizens perhaps would not think it was very desirable to have such legislation, that it would not serve any useful purpose. However, that is not the same thing as saying that those judges, or other judges, would hold it to be invalid, having regard to the provisions of the Constitution. I think that is unlikely because of the presumption of constitutionality - that one would have to show that such a parliamentary investigation must inevitably be conducted in a way that would violate the rights of persons appearing before it, before one could really say that the legislation was invalid.
One major difference that a constitutional amendment would make - and I have set out in the paper what kind of constitutional amendment it might be - is that one might say explicitly that the Houses of the Oireachtas and any committee to which that power is delegated, has the power to conduct an investigation or inquiry into a matter that is deemed to be of public interest by resolution of the House. One might say that not only can the Oireachtas do so, but also that it can cause it to be investigated, for example, to give the kind of flexibility one has in relation to removing the President from office.
One might also say that the procedures to be followed in that inquiry are to be laid out in Standing Orders. If one did that, my own view, as I made clear in the paper, is that it would be unwise to go further and try specifically to exclude a judicial review of how that inquiry is conducted, or to exclude specific fundamental rights, such as the right to one's good name. In a way, it would be disproportionate and also unnecessary. Let us consider cases where the Oireachtas does clearly have the power to conduct investigations which would reflect on the good name of individuals, the Curtin case springs to mind. In Curtin v. Dáil Éireann the Supreme Court indicated that a high level of judicial restraint was required when dealing with procedure before the Houses of the Oireachtas considering whether a particular judge ought to be removed from office. Even though in re Haughey the other procedural guarantees were applicable, the Supreme Court made it clear that this was a power that was unequivocally and exclusively given to the Dáil and Seanad to consider whether they should pass resolutions calling for the removal of a particular judge.
If one had a constitutional amendment to insert an express power for the Houses of the Oireachtas to investigate matters of public interest, and also that the procedures for the way in which those investigations should be conducted would be specified in Standing Orders, then one would see a similar degree of deference from the courts. Albeit that the fundamental rights guarantees would remain and the judicial review would still be there, one would trust that the courts would recognise that particular constitutional change, and exercise a degree of restraint. One might say that that is leaving too much open to the courts. It is possible that the courts would just take whatever constitutional amendment was passed, and because they would still retain judicial review and would still be the ultimate guarantors of fair procedures, in particular under the Constitution, they would hamstring parliamentary investigations just as much as might be the case at the moment.
It is useful to think about European models because in the paper I published in 2003, I surveyed the then member states of the European Union; it was before the recent major enlargement. As I concluded and set out in the paper, most of them have an express constitutional provision which allows their parliament or a parliamentary committee to conduct an inquiry into matters of public interest. It is somewhat ironic that those provisions were put into constitutions, generally starting in the 19th century, on the understanding that it was giving to the Belgian Parliament, the German Bundestag or any other such bodies, powers which the Parliament at Westminster historically had. Most European constitutions are based on their idea of what the Westminster constitution was like. It is ironic therefore, as is documented in Maguire v. Ardagh, that that power is no longer exercised by the House of Commons or the House of Lords, but the Europeans took that as their inspiration. Just as in relation to parliamentary immunity, in many European countries Deputies and Senators cannot be criminally prosecuted unless their immunity is lifted by the House of which they are a member. That was adopted on the understanding that it was parallel to the English position. In fact, it was never the English position because MPs and Members of the House of Lords could be prosecuted. However, in their understanding of what British parliamentary tradition involved, the Europeans created a quite different system.
It is useful to look at European models and the model which seems most attractive to me is the German one. Article 44 of the basic law of the Federal Republic of Germany clearly gives the Bundestag, the Lower House, the power to establish an inquiry. It also, significantly, gives one quarter of the members of the Bundestag the right to demand an inquiry.
As I have said in the paper, one of the points that Mr. Justice Geoghegan makes is that if one gives a power of inquiry to the Dáil, Seanad or an Oireachtas committee, one could raise the question as to what the point of that is, if the Dáil and Seanad are not truly independent of the Government. To some extent, one could say that - although, of course, they are completely independent in their operation - tribunals of public inquiry are established and their terms of reference are set up very much for the convenience of the Government of the day, or the Government of the day can block or prevent inquiries from taking place that it fundamentally objects to.
Similarly, if one gives a power of inquiry to a parliamentary committee and both Houses of Parliament are still firmly controlled by the Government, Mr. Justice Geoghegan makes the suggestion that that power, in fact, will only be exercised so that the Government can have an inquiry carried out at arm's length. It can have the kind of inquiry it wants to see take place, but not take direct responsibility for how it is being conducted. Therefore, there is a case to be made for a minority right to demand an inquiry. One of the salient points about the German system, however, is that although there is this express constitutional provision and although the findings of the inquiry cannot be questioned by judicial review, the German courts, and the constitutional court in particular, can interfere or restrict the way in which the inquiry can be carried on. For example, if a parliamentary inquiry asks somebody to produce documents, the courts will review whether the requirements of the doctrine of proportionality were satisfied so as to protect the fundamental rights of the persons who are affected. This is not a theoretical power, it is a power which committees of the Bundestag have exercised on several occasions concerning important, controversial matters.
It is also something which the French Parliament, the Chamber of Deputies and the Senate, increasingly does. In France, the constitution of the Fifth Republic subordinated Parliament to the Government. Gradually, over the last 50 years the powers of Parliament are being reasserted and expanded accordingly.
The last point I wish to make concerns human rights. It might be attractive to say that we will have a constitutional amendment simply to exclude judicial review stating, for example, that "Nothing in this Constitution shall be invoked to prevent a parliamentary inquiry taking place". That would, at least, have the benefit of certainty, although it might not be particularly fair or just to the persons whose reputation or good name could be adversely affected.
There is a strong reason for not doing that because, as I pointed out in the paper, in the last five years or so, the European Court of Human Rights has come to hold fairly clearly that some aspects of the right to personal reputation is protected by Article 8 of the European Convention on Human Rights. The latter article says that states such as Ireland must respect the right to private life. There is a disagreement among members of the court and among academic commentators about whether that is a good development and also, even if it is a good development in principle, about what aspects of reputation are protected as an aspect of private life. Although submissions by media lawyers and others urged the court to change its mind about that, I think that is unlikely. It is clear that some aspects of personal reputation are protected as a convention right. Therefore, if we had a constitutional amendment and it allowed a parliamentary inquiry to conduct an investigation without any judicial review that could reach conclusions that were adverse to the good name of an individual, it is quite conceivable that Ireland could be found to be in violation of Article 8 in a sufficiently clear-cut or egregious case.
One must remember that the European Court of Human Rights is not just dealing with Ireland; it is also dealing with Azerbaijan, the Ukraine and the Russian Federation, although it is not yet dealing with Belarus. It is very much at the back of the judges' minds in Strasbourg that if they allow something to take place, such as a parliamentary inquiry, how might that be abused by an authoritarian regime somewhere in the Council of Europe. How might an authoritarian government use the form of a parliamentary inquiry to victimise its political opponents, for example, to whip up public anger or hostility towards them?
As I point out in the paper, it has been held that if an individual Member of Parliament makes a statement in Parliament which is defamatory of somebody, and they have an absolute immunity or privilege for doing so, that is not a violation of the convention. The court has held that. The distinction which Mr. Justice Hardiman makes between the individual making a defamatory statement in the Chamber, and the committee investigating something and coming to a formal conclusion - a finding of fact - is a persuasive distinction, even though it is not as persuasive as he perhaps thought. In addition, if coercive powers are exercised to force people to testify before a committee, or force them to produce documents, that engages the convention.
Article 13 of the convention requires that an individual has an effective judicial remedy in regard to alleged violations of his or her fundamental rights. The protection of personal reputation in some form of judicial review is necessary. Even if it is not necessary under the European Convention on Human Rights, as I said, Article 17 of the International Covenant on Civil and Political Rights is quite clear that as well as home, correspondence, private and family life, the reputation of the individual is protected under the international covenant. If the protection of the reputation of individuals is completely excluded, then it is quite possible that an individual could take a complaint to the United Nations human rights committee and be successful in asserting that Article 17 had been violated.
I should have said in regard to the paper that I have benefited from the views of my colleagues on the constitutional studies group in the school of law in University College Dublin and elsewhere. However, any of the recommendations or suggestions for a possible constitutional amendment are purely my own and do not necessarily reflect their views.
I thank Mr. O'Dowd. That was very helpful. There is much very thoughtful material here. We want to finish before 10.30 a.m. in order to attend Leaders' Questions. I will ask members to make comments and ask questions and when all of them have so done, Mr. O'Dowd will respond.
That was a fascinating lecture. The analysis was great and the presentation showed the hand of a practised lecturer. I wish to focus on one area. Mr. O'Dowd said that fair procedures would not necessarily imply that what transpires in a civil or a criminal court must inevitably be followed before a parliamentary committee. Could we investigate that a little more? I appreciate the suggestion that if something is held in private, like a commission of investigation, it would possibly obviate many of the difficulties but, as Mr. O'Dowd rightly and realistically pointed out, for many reasons that might not be a very attractive situation for politicians.
I soldiered through the Curtin inquiry where the person in question never appeared before the committee, although there were lawyers there on his behalf all the time. One is into a situation of huge cost which would not be very attractive if pushing out the boat in this regard from the point of view of general parliamentary committees. Is there some middle ground where parliamentary committees could sit in public, due deference could, in some way, be paid to the need to protect the reputation of individuals and that such a committee could be in a position to come to a finding which might adversely affect the name of an individual? That is the area where I would be interested in further exposition.
I thank Mr. O'Dowd and apologise for my late arrival. I look forward to reading the documentation provided. For those of us involved in the Abbeylara inquiry, one of the things which struck me reading the judgment was a peculiarity on which I would be interested to hear Mr. O'Dowd's take. The issue was not that anybody's rights were transgressed but that the committee was capable of doing that. The Americans developed the doctrine of preventative action. It seems the courts struck down something that might happen rather than at a point when it was happening, that is, somebody saying the committee had now crossed the line. In terms of the separation of powers, I thought that was pushing the boundaries too far. It is almost like the Oireachtas impeaching a judge because he or she is capable of doing something unconstitutional. I would be interested to hear Mr. O'Dowd's take on that.
The second question is related and is about mere politicians getting a sense of the attitude of the courts to the basic issue of bias. Mr. O'Dowd said the issue of institutional bias was one on which the Supreme Court did not find in regard to the Oireachtas. However, if one reads the judgment in detail, there was the implication that Deputies might have said something previously. It always amazes me that no matter what a judge has done in his or her past life, including being a politician, that is all wiped clean and suddenly he or she transcends into a state of perfect balance and objectivity. Apparently, no such allowance is made for any other mortal. I am interested in the general issue of bias and if we can construct anything which would pass muster with our judicial brethren.
I wish to make a general point on which I do not know if Mr. O'Dowd can comment but we should put it into the mix. There is significant frustration, which is greatly amplified by the current financial crisis, at the lack of accountability of individuals who do harm to the public good and who have access to endless recourse to protect their individual rights which the shoplifter or the ordinary decent criminal does not have. Society sets up its norms there and if one transgresses, one is publicly and relatively speedily punished. However, if one has sufficiently good legal advice and the issue is complicated enough, the public good seems to come very much second place to the individual's rights all the way, as Mr. O'Dowd said, to the European Court of Human Rights. That is a very serious problem not only for parliamentarians but for public discourse in terms of how we will restore confidence in the administration of justice and public business in this State.
I thank Mr. O'Dowd for his presentation. I am sorry I missed some of it but I had to attend another committee. As a non-lawyer, I like to keep things very simple. Does Mr. O'Dowd believe it is possible for the Oireachtas to set up a committee of inquiry? If it is possible, is a constitutional amendment required? Can the wording of a suitable amendment be arrived at?
I thank Mr. O'Dowd for his presentation. The papers are very detailed and there is plenty to re-examine. I was interested in what Mr. O'Dowd said about the German experience. I am not too sure if there is a constitutional code or a basic law. I presume membership of the committees is restricted to the Bundestag as opposed to the Bundesrat. Is that distinction made because the Upper House, like ours, is indirectly elected and greater power is given to the Bundestag as a result?
Given that the German constitutional code specifies that the findings of such committees should not be judged by judicial review subsequently, does that not fall foul of a possible judgment in the European Court of Human Rights? Are they able to go so far and row back? If we were to have a constitutional amendment, would it have to be couched in such terminology which would mean we would have exactly the same couching of powers?
The Bundestag has the right, and on the motion of one quarter of its members the duty, to establish an investigative committee. Does that mean that any quarter of the members can establish a committee even though two thirds of the membership of the Bundestag may not be in favour of it? Could a committee be seen as an extension of the Dáil rather than as a committee of inquiry? Just as the Order of Business provides that there shall be a motion tabled to agree a tax agreement, a motion would be tabled that the Dáil shall examine the affairs of the Law Library. Could it be that a number of Members would then come together to perform that function as an extension of the Dáil rather than as a committee that needs Standing Orders and various orders from the Dáil?
I thank Mr. O'Dowd for an incisive contribution that has, as he will have seen, raised a number of questions and has interested the members to a great extent.
Before returning to Mr. O'Dowd, I welcome Mr. Paul Anthony McDermott who as kindly agreed to act as an adviser to the Joint Committee on the Constitution. Mr. Gerald Hogan, as the committee will be aware, has been appointed to the High Court and is not in a position to continue with us. We were very grateful to Mr. Hogan for his work with us. Mr. McDermott is sitting in that chair and he will continue in that position. We are grateful to him for agreeing to come to assist us, to advise and to contribute where appropriate. Has Mr. McDermott anything to say on this matter before Mr. O'Dowd responds so that he might be able to respond to that also?
Mr. Paul Anthony McDermott
Three points occurred to me and if Mr. O'Dowd does not have time to deal with them when he is dealing with the members' questions, he could respond in writing. The first one that occurred to me was that the Supreme Court seemed to draw a distinction between what the Oireachtas can do to its own Members in terms of investigation and what it can do to a member of the public walking down Kildare Street, in effect, by pulling him or her in. Is there any way to find a middle ground by stating it applies if a person is a public servant, for example, if one works for a public bank or any body in State ownership? Could one put such persons in a similar position to Deputies and Senators and state that because they get a wage from the public purse, they are not in the position of an ordinary citizen and they are more like a Deputy or Senator and, therefore, perhaps their rights are different? Such a person is not an ordinary citizen. If such persons want the benefit of getting €60,000 or €100,000 from the State each year, then maybe the quid pro quo is that they can be pulled in and can be impugned in a way that a citizen could not be. Is there any scope for dealing with that?
Second, in terms of a proposed amendment, should there be any limitations on its scope? Would Mr. O'Dowd envisage the Constitution simply stating that the Oireachtas can investigate? If so, for example, if something like Abbeylara happened again, could that now be dealt with by an Oireachtas committee, or is it possible if the amendment did not have a limitation, even though one has amended the Constitution, the courts might look at other articles and state that the amendment cannot mean that the Oireachtas can investigate unlawful killing?
Finally, in terms of the current law, assuming the Oireachtas needs to decide in the morning that it wants to hold another committee, what is the scope of Abbeylara or what could the Oireachtas do so as to avoid itself being dragged into the Supreme Court again at great expense? For example, if there was another hostage situation tomorrow and, instead of somebody being shot dead, a gun goes off and somebody is slightly wounded in the arm, could an Oireachtas committee investigate the Garda tomorrow and state it wants to find out why somebody was shot in the arm, or would that still fall foul of what the court stated in Abbeylara?
I would very much appreciate Mr. O'Dowd's response to those comments and questions.
Mr. John O’Dowd
I will go through the members' questions more or less in the order that they were asked and then, if there is time, I will deal with Mr. McDermott's questions.
On fair procedures, I will take that question from Deputy Jim O'Keeffe with Deputy Howlin's third question because they are fairly closely related. I have expressed my own dissatisfaction with in re Haughey in that, as I say in the paper, there is a distinction between somebody being on trial and facing possible fine or imprisonment, and simply facing the prospect that a group of Deputies and Senators will record their opinion as to what happened in a particular situation. It is true, on the other hand, that the judges are correct that it is somewhat unrealistic to state that that is just sterile of legal effect and that it is just somebody’s statement of opinion, but it is not as serious an inroad on the rights of the individual for Deputies and Senators to make a statement. Partly, it is related to the strong weight that a good name is given in the Constitution, which is reflected in the law of defamation as well and which has been the subject of some adverse criticism, that we protect good name as strongly as we protect somebody’s right to personal liberty or his or her right not to be subject to a criminal punishment. Whether one can persuade the Supreme Court that in re Haughey is inappropriately decided, one can contrast it with the way that inquiries are conducted in the United Kingdom, for example, even judicial inquiries where the same kind of court-like procedures are not required.
I take the point about the cost and delay that is involved in relation to legal representation. I suppose one point to make is that the standard of protection of reputation that the European Court of Human Rights would require is not as exacting, I would imagine, as the requirements of in re Haughey or the approach that the Supreme Court might take here. Therefore, what would be objectionable to the Supreme Court on the basis of in re Haughey and the constitutional right to good name might not necessarily pose the same problems for the European Court of Human Rights. All the European Court of Human Rights would require is that there would be some system of judicial review and some protection through some sort of fair procedures of the rights to reputation. However, they would not necessarily require the right to be represented by counsel, the right of the persons concerned to call their own witnesses, for example, and their right to cross-examine the particular individuals concerned.
Even if one has a constitutional amendment, I must concede that if one really wants to exclude the possibility of teams of lawyers representing well-funded, well-connected clients hampering the work of a committee, the only way one could really guarantee that would be to state in the constitutional amendment that the right to good name was inapplicable and other constitutional rights were inapplicable, otherwise one is still leaving it in the hands of the Supreme Court.
Is there no half-way house?
Mr. John O’Dowd
It is difficult to see. One could partly disapply the right to good name because I suppose one could put internally into the constitutional amendment some kind of standard of protection of reputation. One could refer, perhaps, to the international human rights standards and state that provided an inquiry conformed with the international human rights standards on protecting reputation, that was sufficient. That might be a possible half-way house. Of course, one would still depend on the courts to interpret that and decide for themselves. For example, there is very little interpretation of Article 17 of the covenant and different views could be taken as to what that requires.
In terms of a half-way house, maybe that is related to Mr. McDermott's question about whether one could class public servants as being more similar to Deputies and Senators than to ordinary citizens. In relation to Members, of course, we must await the High Court's decision in a certain challenge, and I will not say anything about that. However, the difficulty for that argument is that it runs up against the Abbeylara decision itself because the committee was dealing with members of the Garda Síochána and the majority judges were not at all impressed by the argument that because they were members of the Garda Síochána there was some special accountability that allowed the sub-committee to conduct the investigation it proposed to conduct.
What is more promising there are the lines that Mr. Justice Geoghegan and Ms Justice McGuinness suggest that one can frame an inquiry in terms of accountability. One can try to reason more rigorously from the general matters with which the Dáil and Seanad are legitimately concerned to a particular kind of inquiry rather than making a leap from saying that the Dáil and Seanad are entitled to investigate the circumstances under which lethal force is used to saying, for example, that they are entitled to investigate who fired the fatal shot and whether he or she was culpable for doing so. With a little more finesse in drafting the terms of reference, one might be able to push out the boundaries of a legitimate inquiry in that way.
Regarding Deputy Howlin's point about the fact that the Supreme Court was making a pre-emptive decision in Maguire and Ardagh, to be fair, the court found, and the Chief Justice joined in this finding, that in re Haughey rights had been violated or would be violated by what the sub-committee proposed to do. It was not a purely speculative or theoretical exercise. In addition, the court was not really deciding that the committee could not investigate because it would violate rights, the court was deciding there was no inherent power to conduct the investigation and it found persuasive the fear that people’s rights might be violated but the actual decision is that there is no power to conduct this investigation so the Supreme Court was not pre-empting in that way.
As to what Deputy Howlin said about bias and the contrast with the Judiciary, it is true that a fairly clear principle is applied that whatever clients one has represented in the past, for instance, does not preclude one from being a judge. To be fair, one could point to the example of Mella Carroll and the Dublin Well Woman decision because Ms Justice Carroll was chairperson of the Second Commission on the Status of Women, she made certain statements about the need for two constitutional amendments following the Attorney General v. X case, the Supreme Court subsequently decided she was disqualified on the basis of objective bias from sitting in any case that involves interpreting those amendments subsequently. It is therefore a little unfair on the Judiciary to say it does not apply to some extent at least, the same standards it would demand of politicians.
In answer to Deputy Devins's question, I agree a committee of inquiry of some court is possible and ordinary legislation would give some scope for its introduction because, as I have said, the Supreme Court does not pronounce any view on that. Although there is a certain degree of scepticism, even hostility, perhaps, in the view of some of the Supreme Court judges towards such an investigation, as Deputy Howlin mentioned, there is a presumption of constitutionality. Therefore, if the Oireachtas passes legislation to say that it, the two Houses or their committees, can conduct an investigation, then the courts cannot simply declare that legislation to be invalid because then they would be saying an investigation must inevitably be carried on in a way. At the same time, they might say that any particular investigation was a violation of somebody's fundamental rights.
Are they not constantly saying that legislation passed in these Houses is invalid?
Mr. John O’Dowd
One could exaggerate that. A lot more legislation challenged as being invalid is upheld than is struck down.
However, they have that option.
Mr. John O’Dowd
Yes, they do. However, it is difficult to see why they would be able to say that legislation was invalid because it would involve saying that Members of the Oireachtas must inevitably end up violating people's rights which even the majority of judges in Maguire and Ardagh would find it difficult to say.
An amendment is probably necessary to bring some kind of clarity to the law and also, as I have suggested, to put it to the courts in a way, if there was an express power of investigation or inquiry, the courts would have to think much more carefully about what degree of restraint they should exercise and what degree of deference they should show to the way in which such an inquiry or investigation was carried on.
Senator Boyle asked about the German example. The reason the Bundesrat does not have a similar power is that the Bundesrat is really a little like the Council of Ministers of the European Union in that it consists of representatives of the government of the states of the Lånder so it would be a bit strange to give that quasi-diplomatic body the right to investigate since it just consists of state government delegations casting a block vote. It is not really a deliberative parliamentary assembly in quite the same way.
With regard to immunity from judicial review, the findings of the inquiry are immune from judicial review but it is also provided that they are not binding on the courts or another administrative authority. They just represent purely the opinion of the members of the Bundestag who have conducted an inquiry and the other branches of government are not bound by them in any way and have to investigate the matter independently if their functions are called into question. I think the European Court of Human Rights would find that acceptable because there is judicial review of the way in which the investigation is carried on so if powers have been disproportionately exercised to demand documents or to invade individual privacy, the German courts can and do intervene to prevent this taking place.
Perhaps that is related to Deputy Ardagh's point about one quarter of the Members. It is true that a minority of the Bundestag can demand an investigation and this goes back to the Weimar Constitution in 1919 when the figure was one fifth. There have been cases where the minority in the Bundestag has gone to court to force the Bundestag to conduct an inquiry. They have a legal right to have the investigation conducted so the courts will intervene to assist the minority in having the investigation carried on according to the terms of reference they want the inquiry to follow.
Unless there is a very radical change in the relationship between the Dáil and the Seanad, which would involve far-reaching constitutional amendments, it is difficult to see the Dáil and the Seanad acting in a way that is systematically contrary to the wishes of the Government of the day. Unless one gives a minority of the Dáil or the Seanad the right to demand an inquiry, one could question what is the value of giving the Dáil and the Seanad a power of inquiry which will just be a proxy for the Government in a way.
I do not think looking at a committee as an extension of the Dáil would advance matters much because the majority in Maguire and Ardagh were clear that neither the Dáil nor the Seanad had this power of inquiry. Therefore, if the plenary body does not have the power to conduct the inquiry, there is no point trying to recast a group of Deputies or Senators just as being an extension of the plenary rather than a committee. The reason the sub-committee did not have the power was because the committee did not have the power and this was because the Dáil and Seanad did not have the power. If one wants that power to exist then a constitutional amendment of some kind would be necessary.
I will respond to Mr. McDermott's remarks or comments. I think I have covered the distinction between Members and non-Members. The case of Maguire and Ardagh involved members of the Garda Síochána and the majority of judges were not impressed by that argument at all, that there was some special accountability involved in being a public servant.
As regards the proposed amendment, it could involve limitations on scope. Some European countries specifically exclude any finding with regard to the culpability or fault of an individual from the scope of the inquiry, for example.
Is there a precedent?
Mr. John O’Dowd
I do not recall immediately.
Mr. O'Dowd could revert to the committee on that point.
Mr. John O’Dowd
It is contained in the original article I wrote in 2003 but I can certainly provide an example of that. It depends on the kind of formula one would use as to how widely such an investigation was defined.
On that last point, was there a difference between a restriction on finding people culpable as opposed to coming to a finding that would or might adversely affect their good name? I think that is crucial.
Mr. John O’Dowd
In Maguire v. Ardagh the Supreme Court thought that was a distinction without a difference because if one said that an individual garda fired the fatal shot, then that was tantamount to saying he or she was guilty of unlawful killing. That is the view taken by the majority, that this would only be a verbal distinction, in the circumstances of that particular case. It might make a difference in some other kind of case.
Sweden is the conspicuous exception in the European Union in that in Sweden these kinds of investigations are specifically ruled out by the Swedish constitution. This is interesting because the Swedish Parliament has one of the strongest and most developed and influential committee systems anywhere in the European Union but they do not find it necessary in Sweden to have investigations that deal with the culpability - or could be seen as dealing with the culpability or responsibility of individuals for particular acts or conduct.
Finally, on the question of the scope of the decision under current law, I do not quite recall the question.
Mr. Paul Anthony McDermott
If in the morning the Oireachtas or the members of this committee would like to establish an investigation, what could they safely do without being judicially reviewed again? For example, if somebody is shot in the arm, could one say that is a relatively minor thing, compared with shooting somebody dead? Would this be something one could investigate? What does it mean to impugn somebody's good name? What level of attack is required?
Mr. John O’Dowd
I think I have probably covered that point already. It is a question of starting with whatever the legitimate policy or legislative concerns that the Oireachtas or the committee might have and then tries to define the terms of reference of the inquiry to adhere to these as far as possible. Another point is to follow the example suggested by the High Court in Ahern v. Mahon, where the judges said that Article 15.13 of the Constitution meant that the tribunal could not come to any finding as to whether the former Taoiseach had misrepresented his personal finances to the Dáil. However, they did say that they could make a finding as a result of which a reasonable reader of the report might form for himself or herself the conclusion that such a misrepresentation had taken place. They could make the findings of fact but they could not spell out the conclusion; this had to be left to the reader of the report because otherwise they would be making the Deputy amenable to the tribunal for statements he had made to Dáil Éireann.
I thank Mr. O'Dowd for his presentation and for his responses to the questions and comments.
The joint committee adjourned at 10.30 a.m. until Wednesday, 15 December 2010.