Majority of the Supreme Court judges ruled against State's appeal over Carthy inquiry

The Supreme Court has ruled that the Oireachtas has no explicit, implicit or inherent power to conduct an inquiry into the fatal shooting by gardaí of John Carthy at Abbeylara, Co Longford. The ruling applies where that inquiry is capable of leading to adverse findings of fact against citizens, including a finding of unlawful killing, which would impugn their good names.

The seven judge court, by a majority of five to two, yesterday dismissed the State's appeal against a High Court decision that the Oireachtas had no inherent power to hold such an inquiry.

However, the majority court ruled that the High Court had granted too wide a declaration in declaring the Oireachtas has no inherent power to conduct, under the aegis of the State, inquiries capable of leading to findings of fact adverse to the good names and livelihoods of citizens.

The Supreme Court instead substituted for the High Court declaration a declaration "that the conducting by the Joint Oireachtas subcommittee of an inquiry into the fatal shooting at Abbeylara on April 20th, 2000 leading to adverse findings of fact and conclusions (including a finding of unlawful killing) as to the personal culpability of an individual not a member of the Oireachtas so as to impugn their good name is ultra vires in that the holding of such an inquiry is not within the inherent powers of the Oireachtas".

The court also granted an order quashing directions issued by the Abbeylara subcommittee (ASC) to 36 gardaí requiring them to attend before the ASC, give evidence and produce documents in their possession.

It upheld the High Court's findings that the ASC, in its conduct of the inquiry, had breached fair procedures and natural and constitutional justice.

This was so particularly where the right of the gardaí applicants to cross-examine witnesses was deferred until the last day of the public hearings.

A key question which had to be answered was, if it was in the public interest for an inquiry to be held, potentially resulting in findings damaging to the good name of citizens, was it not essential that such an inquiry be independent and perceived to be independent, the judges said.

Several of the judges noted members of the ASC had publicly expressed strong views relating to the Abbeylara shooting in the course of the inquiry.

Such statements should not be made in order to avoid allegations of bias or the appearance of bias, they said.

The State's appeal, which was presented by the Attorney General, Mr Michael McDowell, was heard over 10 days by the seven judge court.

Yesterday all of the judges delivered individual and lengthy judgments. The Supreme Court was packed for the brief hearing.

The five judges who dismissed the appeal were Ms Justice Denham, Mr Justice Murray, Ms Justice McGuinness, Mr Justice Hardiman and Mr Justice Geoghegan. The dissenting judges were the Chief Justice, Mr Justice Keane, and Mr Justice Murphy.

In her decision, Ms Justice Denham said the primary issue was whether members of the Dáil and Seanad had power to conduct a public inquiry of this type. The Constitution gave no explicit power or implied power to conduct such an inquiry. She was also satisfied no inherent power exists by reason of necessary implication from statutes.

She said the State was asking the Supreme Court to make a decision involving considerable judicial activism. It wanted the court to construe the Constitution so as to find an inherent power for the Oireachtas to establish a committee system of legislative government to empower an inquiry of this type.

This was a request to make law and it would not be constitutional to make such a judgment. Such a decision should be made elsewhere, either by the legislature or the people. To decide there was such a power would be either to draft a constitutional amendment or to legislate. Whether there was such a power was a policy matter to be decided in light of the Constitution.

Ms Justice McGuinness noted the Attorney General had offered "wise and well-considered advice", both legal and practical, to members of the Oireachtas about conducting inquiries but, unfortunately, the ASC had chosen to ignore a good deal of that advice.

Dissenting, the Chief Justice said there was no constitutional inhibition on the establishment of a committee such as the ASC. While the Constitution did not expressly authorise such a committee, that did not meant its establishment was an unwarranted assumption by the Oireachtas of powers it did not have.

The right of persons to their good name must be balanced against the right and duty of the Oireachtas to inquire into matters relevant to the discharge of their constitutional functions. He also saw no reason why politicians should not be able to participate in such committees unaffected by pressures from their constituents or parties.