The only way around yesterday's Abbeylara judgment may be for the Oireachtas to pass a separate law every time it wants an inquiry, writes David Gwynn Morgan
At the centre of the Supreme Court's judgment in the Abbeylara inquiry case there lay a number of fine, though not unreasonable, distinctions.
In the first place the majority held, by a rather strict reading, that the Committees of the Houses of the Oireachtas Act 1997 did not authorise a committee to hold an inquiry of this type. The sub-committee's alternative argument for saying that it did have capacity lay in the basic idea that the government was responsible to the Dáil and that this would necessarily mean that it could set up a committee of investigation.
The government's accountability to an assembly of public representatives means that ministers may be called to account, by way of Dáil questions, debates and, presumably, committees, for the conduct of their departments. Since the Garda is, in a formal sense, the responsibility of the Minister for Justice, though with a strong convention of operational independence, does not this mean that the Dáil has the authority to investigate their activities?
The negative answer given by the court majority to this question was based on the fact that a minister's responsibility is basically for his own conduct of his Department. Naturally, this includes actions taken on his behalf by civil servants (a theme which arose earlier in the week with the sad episode of Mr Molloy's resignation). But it would be artificial, the majority judges held, to use this doctrine of ministerial responsibility to attempt to justify an investigation of what were really independent actions by gardaí, with which acts the minister had nothing to do.
A good deal in the case turned on the failure of an argument which was relied on heavily by the Attorney General. This was the submission that there were only two categories of determination: an adjudication by a court or a court-like body, such as An Bord Pleanála; and on the other hand a finding of fact. The Attorney General's argument was that so long as a determination was not an adjudication, it enjoyed no special status, and, consequently, could be vested in a committee of the legislature, or anywhere else, for that matter.
The majority held that this argument was unreasonable on the basis that findings, even if they are only a fact with no immediate legal consequences, may nevertheless make a huge impact on a person's reputation or business, if the findings are made by a fact-finding body of high status.
The example cited was the damage done by the US House Committee on Un-American Activities, to some of those whom it investigated in the 1950s.
The deduction drawn by the majority was that the Oireachtas had no inherent power to hold an investigation of this character. But the majority was careful not to decide on the logical next question, which is whether the Oireachtas could by a statute give itself such power, without violating the Constitution.
In not deciding this point, the majority refrained from casting aspirations on the constitutionality of tribunals of inquiry. This was wise since on at least recent occasions, this type of argument has been made against tribunals before the Supreme Court and has failed.
In considering what are the limits of the capacity to investigate which the Oireachtas does possess, the majority distinguish an inquiry "leading to adverse findings of fact and conclusions (including a finding of unlawful killing) as to the personal culpability of a non Oireachtas member" (to quote from the court order).
On the other side of the line, where the Oireachtas may hold an inquiry, are questions of policy, management or value for money.
And the good news is that the CIÉ signalling system cost overrun inquiry seems to be on this side of the line.
A bright child of 10 would no doubt say that an inquiry into success or failure in management or policy could quite easily and logically lead back to the first forbidden ground.
The majority's response to this would seem to be that there is a difference between an inquiry which starts out in the policy field but incidentally involves individual conduct, and one whose sole focus is an unlawful killing. While there is a certain amount of "I can't define an elephant but I know one when I see one" type reasoning here, it does seem a sensible distinction.
Overshadowing a lot of the judgments, though largely unspoken, was the feeling that the members of the sub-committee were politicians. Does this not mean that the first rule of constitutional justice - the no bias rule - would inevitably be broken?
The court did not need to rule on this and did not do so (as they say in the law "the horse does not jump until it gets to the stile"). And indeed it must be said that both Abbeylara and the signalling inquiry were investigations in which there was no party bias. But at the very least, it must be the case that the danger that there could be a predetermined party position, giving rise to structural bias, would have to be taken into account in the future in deciding in what sorts of area a statute could give authority to investigate.
Pity a draughtsman asked to construct a statute which, while respecting the Abbeylara decision, gave the Oireachtas as much authority as possible to hold an investigation.
It might be best if the statutes were tailor-made for any particular investigation so as not to be wider than necessary and so that any court could see the statute in the light of the circumstances.
Those circumstances should include the selection of a topic on which there was no pre-judged party difference. The subject area should also avoid direct individual conduct and culpability. Dr Hogan SC remarked in the wake of the defeat of the most recent abortion amendment that drafting legislation to legislate for the X case would be a real legal porcupine.
The dilemma of a draftsman asked to pick up the pieces, following the Abbeylara judgment, would be just as sharp.
David Gwynn Morgan is professor of law at University College Cork