The Supreme Court has told politicians they can conduct inquiries, but they must do it right, writes Carol Coulter, Legal Affairs Correspondent
The Government Chief Whip, Mr Séamus Brennan, has described the majority judgment of the Supreme Court on the Abbeylara inquiry as "a major setback to the role of the Houses of the Oireachtas in its committee work." He added that it "casts serious implications (sic) on the future of the entire committee system."
He went on to promise legislation or constitutional referendum to "restore some appropriate power and investigative authority to the Oireachtas and its committee system".
The judgment is not a major setback to the Oireachtas committee system, though it may be a set-back to those interested in the publicity-generating potential of these committees. Nor is any constitutional referendum necessary, unless the members of the Oireachtas want to extend the power of committee inquiries to turn them into quasi courts, ruling on the behaviour of individual citizens.
Mr Justice Hardiman explicitly rebutted the suggestion that the case was an attack on the Oireachtas committee system, stressing that it was instead a challenge to a "novel" power to make individual citizens accountability to such committees.
While the individual judges emphasised different issues in their judgments, there was broad consensus on the central themes among the majority. These were that the Abbeylara inquiry sub-committee of the Joint Oireachtas Committee on Justice, Equality, Defence and Women's Rights did not uphold fair procedure and citizens' constitutional rights in its work; that its scope and power went far beyond any powers existing in statute or implied in the Constitution; and that it was, to put it at its kindest, procedurally sloppy in the way it did its work.
Ms Justice McGuinness also implied that the publicity-seeking activities of the members of the committee had left it open to the charge of objective bias.
Even the two judges who upheld the appeal by the sub-committee expressed doubts about the conduct of the inquiry. Mr Justice Keane was critical of restrictions on the right to cross-examine, and Mr Justice Murphy said he anticipated "immense practical difficulties in conducting such an inquiry in accordance with the requirements of natural jsutice and fair procedures".
The message from the Supreme Court is clear. It is quite in order for Oireachtas committees to inquire into matters relating to policy, legislation, expenditure and a host of other matters. But such inquiries must have clear terms of reference and be conducted properly.
Inquiries that could lead to findings of fact that might impugn the good name of individual citizens cannot take place unless they have an adequate, and constitutionally sound, legislative basis.
In the course of the hearing, and in political comment outside the court, much was made of the success of the DIRT inquiry conducted by the Public Accounts Committee, and it was suggested that this example was being followed in the Abbeylara inquiry. But in a number of the judgments it was pointed out that the DIRT inquiry was established on the basis of specific legislation, and that the actual investigatory work was carried out by the Comptroller and Auditor General, on the basis of powers granted by statute.
Ms Justice McGuinness also pointed out that this was quite a different type of inquiry. While a pattern of procedure used in the DIRT inquiry was transferred to the Abbeylara inquiry, "insufficient thought was given as to whether it was a suitable procedural framework for such an entirely different type of inquiry".She commented that, while the Attorney General had given "wise and well-considered advice, unfortunately in its progress towards the 'fact-finding' inquiry as it now stands, the Abbeylara sub-committee chose to ignore a great deal of this advice."
Further, she describes "a litany of procedural changes of direction and indeed procedural errors . . . none of the bodies concerned seemed to be capable to producing a certified extract from their minutes setting out in exact terms the decisions made at each meeting in chronological order."
She goes on to suggest that if politicians are to conduct quasi-judicial inquiries, they should behave in a quasi-judicial manner.
"If they are to carry out such a proper inquiry the members of such an inquiry committee would have to accept a self-denying ordinance which would, for example, prevent them from carrying out any media appearances or interviews dealing with the subject matter of the inquiry both before and during its currency," she said.This does not mean that its proceedings should not be conducted in public - on the contrary.
Inquiries can still be carried out by Oireachtas committees, especially if they relate to matters of policy and legislation. Those dealing with other questions, especially impinging on people's rights, will have to have sound legal basis.