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Sub-Committee on Mini-CTC Signalling Project INTERIM REPORT 1.1 This is an interim report from the Sub-Committee on the mini-CTC signalling project established by the Joint Committee on Public Enterprise and Transport. It reports that we have not to date completed the inquiry which we were charged to undertake and that we shall not, in the circumstances that have now arisen, complete the inquiry. Legal events combined with the legal timescale and the political calendar have combined to thwart us in our task. 1.2 We would stress that non-completion of the Inquiry is due to forces and events outside our control. These forces and events are in the main in the legal realm and have acted to delay and then to interrupt our work. Principal among them is the outcome and consequences of the High Court judicial review in the case of Maguire and Others v Ardagh and Others (“the Abbeylara decision”) and the impact of that judgment, delivered on 24 November 2001, on our Inquiry. This was the second time that the High Court made an Order directly affecting the functioning of the mini-CTC Inquiry. The text of the judgment is to be found at Appendix One. 1.3 Our Sub-Committee was not a party in the Abbeylara case although the decision does make reference at page 88, to our Sub-Committee as well as to the proceedings involving our Sub-Committee then (and still) outstanding at the High Court. 1.4 Those proceedings centre on the action of the family of the late Mr. Michael McDonnell, former Chief Executive of CIÉ, against the Sub-Committee – McDonnell v Brady and Others. At the time of writing the substantive case (judicial review of the work of our Inquiry) has not been assigned a hearing date. 1.5 In giving leave to the family of the late Mr. Michael McDonnell (the applicants) for that judicial review on 3 October 2001 Mr. Justice Kelly made an Order putting an immediate stay on our public proceedings. This caused a suspension of our Inquiry pending appeal. A copy of the Order is to be found at Appendix Two of this Report. 1.6 After application to Mr. Justice Kelly, and to the President of the High Court, Mr. Justice Morris, the Sub-Committee's application to remove the stay imposed on our proceedings was heard, on notice to all interested parties, by Mr. Justice O'Caoimh. On 15 October 2001 Mr. Justice O'Caoimh ordered the removal of the ex-parte stay on the Sub-Committee's proceedings. A copy of the transcript of that judgment is included at Appendix Three. 1.7 At the suggestion of the President of the High Court, an application was made by the Sub-Committee to Mr. Justice Kelly to permit the evidence of two witnesses to be taken on commission by Mr. Christopher Meehan, Barrister-at-Law. These witnesses had traveled to Ireland at the request of the Sub-Committee from the United States and Taiwan respectively to give evidence to the Inquiry. Mr. Justice Kelly permitted a variation of his Order staying the inquiry so that this evidence would not be lost. On the night of 5 October, and into the early hours of the morning of the following day, the evidence was “taken on commission”, and held in escrow pursuant to the High Court Order. 1.8 The family of the late Mr. Michael McDonnell appealed the decision of Mr. Justice O'Caoimh to the Supreme Court and on 31 October 2001 that court upheld the decision of Mr. Justice O'Caoimh. The Sub-Committee was, as found by the Supreme Court, part of the legislative arm of Government. 1.9 In its judgment, delivered by Keane CJ on 31 October 2001, it is stated at page 24 that, “This sub-committee, having been established by a joint Oireachtas committee, must be regarded as part of the legislative arm of government. While it has been made clear on more than one occasion that the respect which each branch of government owes to the other branches will not inhibit the judicial branch from intervening where the Constitution is being violated by either or both branches, I am satisfied that such a situation has not been reached in the case of the sub-committee.” The full text of the Supreme Court decision is to be found at Appendix Four. 1.10 It is clear from the above that our Sub-Committee has found itself directly and indirectly embroiled in or affected by legal challenges to the system of Parliamentary Inquiry. In this respect the experience of this Parliamentary Inquiry (and the Abbeylara Inquiry) differs from that of the first Inquiry to be conducted under the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997 and the Comptroller and Auditor General and Committees of the Houses of the Oireachtas (Special Provisions) Act, 1998, that of the Committee of Public Accounts Sub-Committee on Certain Revenue Matters (the DIRT Inquiry). 1.11 It is well known that the life of the 28th Dáil has reached the point at which its dissolution and a General Election is imminent. This combined with the legal events outlined above, ensures that the Parliamentary Inquiry that the Sub-Committee was charged to undertake cannot now be completed. The risk identified by the Supreme Court in October 2001, at page 20 of its decision, in respect of the continuation of the stay then in place, that, “given that the Oireachtas is in the last months of its present term, the risk that the sub-committee will not have completed its inquiry and published its report prior to the dissolution of Dail Eireann … is a real one, which must affect any determination as to where the balance of convenience lies”, has crystallised. 1.12 At the outset we wish to make it clear that what follows is our own considered reaction to the challenges to our proceedings and the Abbeylara judgment, as it affects our work and the workings of the Oireachtas in general. We have not sought or received any input from the Abbeylara Sub-Committee. We have however consulted with our counsel. Legal counsel are of course free to advance in court a succession of arguments, some of them in the alternative, so long as they reasonably advance their clients' position. However, to the extent that we deal with propositions of law, we confine ourselves here to setting out those propositions which seem to us most comfortably, consistently and coherently to accord with our own practically acquired experience of the system of public administration that is provided for and governed by the Constitution, and our relative position as parliamentarians within that system. 1.13 This interim report is confined in the main to reporting to the Houses of the Oireachtas the implications for our Inquiry and for the Oireachtas in general of the Abbeylara decision as they appear to the Sub-Committee, including in the light of and in interaction with our own proceedings outstanding, McDonnell v Brady & Others.
Structure of this report 1.14 In Part Two we provide an outline of the mini-CTC Inquiry. 1.15 In part Three we outline certain aspects of the Abbeylara decision, paying particular attention to the decision as relevant to the functioning of our Sub-Committee and its Inquiry. 1.16 Part Four deals with the implications of the Abbeylara decision for our Sub-Committee as it appears to the Sub-Committee. The impact of the judgment was outlined in brief in the Opening Statement of the Chairman on 27 November 2001. This Part extends that discussion. 1.17 Part Five considers the wider implications of the Abbeylara decision for the Houses of the Oireachtas. 1.18 In Part Six we set out our thoughts on the doctrine of the separation of powers and the power of parliament to inquire. 1.19 In Part Seven, we provide some discussion of procedural law and our rules of procedure. 1.20 Finally, in Part Eight we make some brief concluding remarks and in Part Nine we set out our Orders of Reference and the membership of the Sub-Committee and the Joint Committee on Public Enterprise and Transport. Part Two - The mini-CTC Inquiry 2.1 The proximate cause of our inquiry was the apparent over-run against budget and the delay in the completion of a centralized traffic control and signalling system (the mini-CTC) for more lightly used rural sections of the rail network of Iarnrod Éireann. During the course of the evidence gathering public phase of our Inquiry the contract for the construction of the mini-CTC, entered into by Iarnrod Éireann in July 1997 with the Italian/Irish consortium, Sasib/MNL, was abandoned. 2.2 At around the same time as the start up of the mini-CTC installation work, a rural railway crossing at the village of Knockcroghery in County Roscommon required to be relocated and resignalled, which contract also went over budget and time. Furthermore, Iarnrod Éireann's parent body, CIE, had entered into an arrangement with the telecommunications company Esat, for the laying trackside along the entire length of the permanent way of a national fibre optic telecommunications backbone to be owned by Esat. All three of these actions were separate but also to some degree or another interconnected. 2.3 On 26 October and 7 November 2000, following media reports, the Joint Committee on Public Enterprise and Transport examined the cost overrun against budget and the delay in completing the mini-CTC and issues relating to the Esat arrangement. The Joint Committee was concerned in the public interest to establish what the facts were. There was furthermore on 19 October 2000 a request to the Joint Committee by the Minister for Public Enterprise, Mrs. Mary O Rourke, TD to have the issues involved examined. The parties examined were the Department of Public Enterprise and CIÉ/Iarnród Éireann. Under the rules of procedure of these Hearings the witnesses from both organisations who testified were not compelled and did not have absolute privilege. 2.4 One witness at those initial Hearings was the late Mr. Michael McDonnell, then Group Chief Executive of CIÉ and Chairman of Iarnrod Éireann. Mr. McDonnell subsequently resigned from his positions at CIÉ Group and on 8 April 2001 died tragically. We wish again to put on record and acknowledge the assistance given to the Joint Committee by the late Mr. McDonnell and his co-operation with the Joint Committee in its consideration of the issues in question. 2.5 The outcome of these hearings and subsequent deliberations of the Joint Committee was a decision to establish the Sub-Committee and to have an examination in private carried out on its behalf by the firm of accountants, Chapman Flood Mazars (CFM), the appointed consultants. CIÉ co-operated with this phase of our work, making significant voluntary disclosure to the Committee. 2.6 Following the establishment of the Sub-Committee compellability powers were granted on application by the appropriate Sub-Committee of the Joint Committee on Procedure and Privilege (CPP) in April 2001. 2.7 Subsequent to the original grant of powers of compellability on 11 April, directions were issued by the Sub-Committee on 24 April 2001 to relevant parties. A number of parties made representations in the process of complying with the Orders of the Sub-Committee concerning time limits for the discovery of documents. 2.8 Furthermore, additional information coming to the attention of the Sub-Committee led it to seek an expansion of its orders of reference. In early May 2001, in light of these developments and in the interest of fair procedure the Sub-Committee decided to withdraw the directions already given to parties. 2.9 It also sought an amended Order of Reference (expanded orders of reference) and to resubmit its application for compellability powers to the Joint Sub-Committee on Compellability of the Committee on Procedures and Privileges of Dáil and Seanad Éireann, in other words to start afresh. Parties were informed of the decision by the Sub-Committee to withdraw its original directions and that fresh directions would be given at an early date. In the meanwhile they were asked to continue with the discovery process pending re-direction. 2.10 Following the passing of motions by Dáil and Seanad Éireann on 24 May 2001, the orders of reference of the Sub-Committee were changed and a fresh consent was given by the Joint Sub-Committee on Compellability of the Committee on Procedures and Privileges of Dáil and Seanad Éireann on 14 June 2001. 2.11 Our Orders of Reference required that “The circumstances surrounding the entering into and the performance of the Iarnród Éireann mini-CTC and Knockcroghery signalling projects and the Esat/CIÉ cabling and telecommunications project and related matters be inquired into and reported on by the Sub-Committee on the mini-CTC Signalling Project to the Joint Committee on Public Enterprise and Transport, taking into account progress already made on the matter by the Joint Committee and any Sub-Committees thereof.” 2.12 Parallel with the establishment of our Inquiry there was also established by the Oireachtas a second, unrelated Inquiry. This was into the events of 19 and 20 April 2000 at Abbeylara, the fatal shooting by Gardai of Mr. John Carthy at Abbeylara on 20 April. Following the shooting there was an internal Garda inquiry into all of the circumstances surrounding the events at Abbeylara. The report was submitted to the Commissioner of the Garda Siochana and the Commissioner in turn, submitted his report to the Minister for Justice, Equality and Law Reform. The Minister referred the Commissioner's report to the Oireachtas, following which both Houses referred it to the Joint Committee on Justice, Equality, Defence and Women's Rights. The Joint Committee established a Sub-Committee and the Sub-Committee embarked on an inquiry on 24 April 2001. 2.13 During the Abbeylara Inquiry nine Garda witnesses indicated their intention in the circumstances to apply for Declarations under the compellability legislation relieving them from attending and giving evidence to the Inquiry on 27 April 2001. Subsequently they joined with a number of other Garda witnesses in legal proceedings against the Sub-Committee, by way of judicial review. 2.14 The challenge to the Abbeylara Sub-Committee did not at that stage affect our work. On 18 July 2001 there was held a preliminary hearing of the mini-CTC Inquiry at which the Chairman made a lengthy Opening Statement in which were detailed the membership of the Sub-Committee, the composition of the Sub-Committee's legal and financial advisors, the purpose and framework of the Inquiry and the issues to be inquired into. 2.15 At the preliminary hearing also applications for the right of audience were invited and considered. It then adjourned until 10 September 2001 when it commenced the evidence-gathering phase of its inquiry. 2.16 One aspect of the decisions taken in relation to applications for right of audience deserves mention. This was the decision in relation to the application made on behalf of the widow and family of the late Mr. Michael McDonnell to be granted representation at the evidence gathering phase of the Inquiry. Her concern was, appropriately and understandably, to defend her late husband's reputation against unjust attack. While of the view that they were not strictly required in law to grant her application the Sub-Committee, honourably, allowed her to be legally represented. Her legal representatives were therefore entitled to cross-examine any witness whose evidence might be damaging to the interests she sought to represent and all relevant papers and documents discovered to the inquiry were made available. In all of this, as was remarked by the Supreme Court in its decision of 31 October, “she is clearly in a significantly different position from those persons still alive who have an admitted and indisputable constitutional right to the vindication of their good name” and it was “beyond doubt that the applicant [Mrs. McDonnell] has been afforded important safeguards which will be of assistance to her in defending her late husband's reputation against unjust attack.” 2.17 On 10 September 2001 the Sub-Committee commenced its public hearings – the taking of sworn evidence from witnesses representing parties. 2.18 On 3 October 2001 and during the evidence-gathering phase of our inquiry the family of the late Mr. Michael McDonnell commenced legal proceedings against the Sub-Committee. As has been mentioned previously, the High Court in granting the family leave to apply for judicial review put a stay on our proceedings. While this stay was being appealed the hearings were obviously adjourned. In the interim however, Mr. Justice Kelly did vary the stay to allow for the taking of testimony of two witnesses, Mr. Padraic Casey of Norcontel and Mr. Jarleth Burke, who had worked with Esat during the relevant period, to be taken on commission on October 5-6, 2001. Both these witnesses had traveled to Ireland especially to attend and give testimony to the Inquiry. 2.19 After the injunction was lifted by the High Court on 15 October 2001 the inquiry remained adjourned pending the decision of the Supreme Court on appeal. The hearings finally resumed on 6 November 2001 after the Supreme Court confirmed the decision of 15 October 2001 of the High Court. Parallel, the Abbeylara case was concluded and the decision of the Court was awaited. The decision was announced on Friday 24 November 2001. It ruled comprehensively in favour of the Gardai. 2.20 Having considered the implications of the Abbeylara decision, on the morning of Monday 27 November 2001 the Chairman outlined the implications for our work by way of a Statement and decision which announced an adjournment sine die of our hearings. The transcript of the proceedings of 27 November of the Sub-Committee, including the Chairman's Statement and decision, is included in this Report at Appendix Five. 2.21 Up to and including its adjournment sine die on the morning of 27 November the Sub-Committee sat in public a total of 26 days. In addition, on the evening and night of 5-6 October evidence was taken on commission by order of the High Court. 2.22 On the morning of 27 November the Sub-Committee was in the closing stages of the evidence-gathering phase of the inquiry. By that point the Sub-Committee had sat in public for a total of 26 days including the Preliminary Hearing of 18 July. Some 75 witnesses had given testimony. Aside from a number of relatively minor evidential matters the only evidence to be heard at the point of adjournment was the conclusion of the cross-examination of two witnesses by Mr. Patrick Rowan on behalf of the family of the late Mr. Michael McDonnell, who had been granted legal representation at our hearings. There was then to be heard closing submissions from persons concerned in the inquiry. At that point the public phase of the Inquiry would have concluded and we would have adjourned to prepare and consider our report. 2.23 In the wake of the High Court judgement the Abbeylara Sub-Committee decided to appeal the decision to the Supreme Court. It secured an early hearing for the Appeal. The case commenced on 15 January and concluded on 22 January 2002. Judgement was reserved. In these circumstances our Sub-Committee remained in existence in the hope of an early Supreme Court decision, which might reverse the decision of the High Court. 2.24 The interaction between the Abbeylara proceedings and judgement and the litigation against our own committee caused delays and interruptions in our Inquiry. Furthermore, the interaction has come to be such that we now find ourselves unable to complete our Inquiry. Critically, while the Supreme Court gave Abbeylara an early hearing, it has yet to give its judgement. Secondly, the High Court has not been able to give us a date for our own judicial review. Furthermore, we gave an undertaking to the High Court that there would be no report published pending the hearing of our case. This was in the belief that we would get an early hearing and that in any case we would be able to finish out our hearings and prepare, if not publish, our report in the lifetime of this Dáil. Our best hopes have not come to pass and our worst fears have been realised. The great risk that emerged – that the legal timescale might not match the parliamentary – has crystallised. 2.25 In early March the Sub-Committee decided that we had reached the point in all of the circumstances that it was not now possible to conclude the inquiry. Furthermore we decided that an interim report to the Houses of the Oireachtas was not only appropriate but also necessary in the circumstances. Cost of Inquiry to date 2.26 Apart from the importance of our Inquiry from the standpoint of holding the system of public administration to account there is also the considerable amount of public monies that have been expended in conducting the examination. We have had to have command over significant public resources in order to pursue our examination of the mini-CTC project and related matters including the Esat contract. 2.27 Officers in a number of Departments and public bodies have had to devote time and resources to complying with discovery orders and testifying to the Sub-Committee. Other, private, bodies and individuals have also had to comply with discovery and testify at our hearings. The Office of the Houses of the Oireachtas has also had to devote resources to secretariat and technological support. There was the need to employ legal advisors and financial consultants. Our Inquiry took significantly longer than anticipated to get as far as it did, due to the legal cases and challenges that affected our work. Additional secretariat, technical and advisory and legal resources were therefore required and there was the cost of representation of the Sub-Committee at a number of court hearings. 2.28 It is estimated on an interim and incomplete basis that our costs to date are in the order of €1.56m. This is an incomplete estimate. It is a 'paid to date' figure, which must be stressed. It does include the paid cost to date of the financial advisors and legal advisors as well as the personal assistants to the Members of the Sub-Committee. It also does include an estimate of print and stationary costs to date and IT costs. It does not as yet include the full cost of the secretariat, the cost of overtime grades or reporting staff. In respect of legal costs it does not include any estimate of imponderables such as the cost of discovery or other legal costs that may arise in the future. However it is a significant sum, to which may be added the costs of discovery incurred by parties for which the inquiry may be liable and other legal costs that may also be incurred. 2.29 In respect of all of this the Sub-Committee wishes to put on record its appreciation of the attitude of the Minister for Finance, Mr. Charlie McCreevy and the officers of the Department of Finance, the good will and additional resources that they extended to the Sub-Committee when the need arose. However, and to repeat a point made by the PAC Sub-Committee in its final report, this experience does not take from the fact that we were dependent on the good will of the Government even if always forthcoming. 2.30 Our experience in regard to resources closely mirrors that of the DIRT Sub-Committee – an insufficiency of resources combined with forthcoming good will in Government. We would also echo the remarks of the final report of the DIRT Inquiry that,
2.31 The Government has accepted the principal recommendations for parliamentary reform made by the DIRT Inquiry. These include the establishment of an Oireachtas Commission to oversee and have responsibility for the budget of the Houses of the Oireachtas. In this regard, it was stressed by the DIRT Sub-Committee in its two main reports (and accepted) that the resourcing of Oireachtas Members fell far short of the international norm and that there was a corresponding need to increase the financial resources of parliament and parliamentarians. The Oireachtas Commission and the improved resourcing of parliament have yet to be provided for. However publication of the legislative proposals is now imminent. On Tuesday, 19 March last the Secretary General of the Department of Finance, Mr. Tom Considine, informed the Committee of Public Accounts that publication of the Bill was expected before Easter. He said that under the proposed new dispensation, “a specified sum of money will be a charge on the Central Fund, to meet the current budget requirements of the Office of the Houses of the Oireachtas for three years. The management of the Office of the Houses of the Oireachtas will be entrusted to an independent Commission consisting of the Chairmen of both Houses, a Minister's representative, four members of Dáil Éireann and three Senators together with the Clerk of the Dáil. We are now at a stage where we expect to put the Bill to the Government with a view to publishing it before Easter.” 1 2.32 In his oral evidence Mr. Considine also informed the PAC that the international benchmarking of the current budget of the Office of the Houses of the Oireachtas and supports for Members of the Houses was close to finalisation and that the outcome of this benchmarking would be input to establishing an appropriate level of funding for the Oireachtas and its Members. 2.33 These announcements and decisions are very much welcome. We shall examine with interest the proposals of the Bill, not least in respect of what is to be provided for by way of support services for parliamentary inquiries under the new system. For example we are convinced that there is a need to provide in statute for a preliminary exercise to be carried out by an appropriate firm or public office or agency such as the C&AG. This would greatly focus and expedite the hearings and ensure that the issues of central importance are brought to the fore at a formal preliminary stage of inquiry. In the light of our own experience this is a vital aspect of the proposed new order for the national parliament. This issue was dealt with in the reports of the DIRT Inquiry. Again echoing the reports of the DIRT inquiry we recommend the incorporation of such provisions in the Bill to establish the Oireachtas Commission. 2.34 There are many detailed observations that the Sub-Committee might make in respect of the functioning of parliamentary inquiries in general on the basis of its experience in the mini-CTC inquiry. They relate to such issues as the management and administration of the Discovery process, the adequate resourcing, in terms of personnel, independent, expert professional advice (including legal and other advice) and technological support in the particular context of conducting inquiries (as opposed to the 'normal' work of committees). They perhaps come down to one thing – the need to have a scheme and systems in place to properly and effectively support the parliamentary inquiry process as distinct again from the normal work of committees. These deserve examination, perhaps by a select committee, in the context of enacting the Bill to establish the Oireachtas Commission. 2.35 We attach enormous importance to the organic evolution of the parliamentary system of inquiry in support of both the legislative function of the national parliament as well as the scrutinising role of the Dáil under the constitution. There is a detailed consideration of the role of the parliamentary inquiry in the functioning of the national parliament in Part Six of this interim report. We attach critical importance to paragraphs 6.66 to 6.69 in particular. Legal costs 2.36 The question of costs has arisen as an issue in the course of our Inquiry. The costs issue was dealt with in the Opening Statement of 18 July 2001. The Statement outlined, on the basis of our legal advice, at paragraph 146, the position as it appears in law to be.
2.37 Subsequently, arising from queries raised by a number of parties concerning provision for the payment of costs associated with compliance with the directives of the Sub-Committee, sanction was obtained from the Minister for Finance for the payment of the costs of making discovery on foot of the directives of the Sub-Committee. Such payments may only be made on foot of a recommendation by the Sub-Committee. In order to make such recommendations the Sub-Committee requires to be satisfied that the party concerned has complied with all obligations under the compellability legislation. In case of any dispute as to quantum, the issue is to be referred for final determination to a Cost Drawer nominated by the Chief State solicitor. Such costs are in addition to the travel and subsistence entitlements of any person directed to attend to give evidence. 2.38 The issue of costs is now one of the matters to be determined in the proceedings pending against the Sub-Committee in the High Court. In the circumstances the Sub-Committee does not feel it appropriate to make further comment on either the facts, or the case which it will seek to make. 2.39 On the issue of costs, it was stated by the Supreme Court, at page 23 of its judgment, that
Part Three - The Abbeylara decision 3.1 On 24 November 2001 the High Court delivered its decision in the Abbeylara case. In that case 36 officers of An Garda Siochana (the Applicants) sought a judicial review of the actions of a Sub-Committee of the Joint Oireachtas Committee on Justice, Equality, Defence and Women's Rights, established to inquire into the internal Garda report on the Abbeylara incident (the Abbeylara Sub-Committee). 3.2 The Abbeylara case may be traced back to the Abbeylara incident, the fatal shooting by Gardai of Mr. John Carthy at Toneymore, Abbeylara in the County of Longford on Thursday 20 April 2000. Following the shooting there was an internal Garda inquiry into all of the circumstances surrounding the events at Abbeylara. A report of that inquiry was submitted to the Commissioner of the Garda Siochana and the Commissioner in turn, submitted his own report to the Minister for Justice, Equality and Law Reform. The Minister referred the Commissioner's report to the Oireachtas, following which both Houses referred it to the Joint Committee on Justice, Equality, Defence and Women's Rights. 3.3 The Joint Committee established a Sub-Committee and on 24 April 2001 the Sub-Committee embarked on an inquiry using the compellability powers conferred by the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997 and the Comptroller and Auditor General and Committees of the Houses of the Oireachtas (Special Provisions) Act, 1998. 3.4 On 27 April 2001 nine Garda witnesses indicated their intention in the circumstances to apply to the Secretary of the Government, under sections 5(e) and 7(d) of the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act 1997, for Declarations relieving them from attending and giving evidence at the Inquiry. At that point the Sub-Committee adjourned its proceedings. Subsequently these Gardai chose not to proceed with their application to the Secretary of the Government. Instead, some thirty six Gardai including the nine who had proposed to apply for the Declarations, all witnesses at the Inquiry, chose to institute legal proceedings against the Sub-Committee, by way of judicial review. An ex parte application for leave to apply for judicial review was made on 21 May 2001. The action was heard between 17 July 2001 and 16 October 2001 (including an adjournment for the long vacation). 3.5 Joined with the Abbeylara Sub-Committee were Ireland and the Attorney General. The Applicants sought fourteen reliefs the effect of which if granted, would put an end to the Abbeylara Inquiry and indeed to the parliamentary system of inquiry established by the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997 and the Comptroller and Auditor General and Committees of the Houses of the Oireachtas (Special Provisions) Act, 1998. In particular the first and second reliefs sought by the applicants were explicit. 3.6 The first relief sought by the applicants was for “A declaration that the conduct of a public inquiry with the aid of the power of the State (including the power to compel the attendance of witness and to compel the production of documents) and conducted by members of the Oireachtas under the aegis of the Houses of the Oireachtas and with the authority thereof liable to result in findings of facts or expressions of opinion adverse to the good name, reputation and/or livelihoods of persons not members of such Houses is ultra vires the powers of such Houses.” The second relief sought “A declaration that public inquiries delivery of reports findings of fact or expressions of opinion under the aegis and with the authority of and enforced by the power of the State (including the power of compulsory attendances of witnesses and discovery of documents) liable to result in adverse purported findings of fact or expressions of opinion may not consistent with the principles of constitutional justice and fairness by conducted by a tribunal comprised of elected officials.” A total of fourteen reliefs were sought by the applicants. 3.7 The Abbeylara judgement was delivered on 24 November 2001. It ruled comprehensively in favour of the Gardai. 3.8 In ruling in favour of the applicants on 24 November the Court made seven Orders.
3.9 There were two further matters before the Court that were not touched upon in the Abbeylara decision. One was the alleged inability of elected representatives to conduct Inquiries of this type because of perceived structural or objective bias “arising particularly from their representative functions as elected parliamentarians.” The second was the alleged inappropriateness of a senator being a member of the Sub-Committee. 3.10 The Orders made in the Abbeylara decision follow closely the reliefs sought by the applicants in that case. Part Four - The impact of the Abbeylara decision on the mini-CTC Sub-Committee
4.1 In this Part we outline and discuss the impact on and implications of the Abbeylara decision for our Sub-Committee. These were rehearsed in substance in the Statement of the Chairman of 27 November 2001. The above extract from the Chairman's statement sets out in summary the immediate impact of the Abbeylara decision on our inquiry. 4.2 The first of the Orders made in the Abbeylara decision (and the first relief sought by the applicants) is, for our Sub-Committee and for the Houses of the Oireachtas, the most significant. The effect of the first Order, at least for the time being, is to declare parliamentary inquiries of the type undertaken by our Sub-Committee under the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997 and the Comptroller and Auditor General and Committees of the Houses of the Oireachtas (Special Provisions) Act, 1998 to be ultra vires the powers of the Oireachtas. 4.3 In addition, the seventh Order (which echoes the eleventh relief sought by the applicants), in that it deals with the procedures adopted by the Abbeylara Sub-Committee, including its procedures in regard to cross-examination, also is significant. 4.4 The procedures of our Sub-Committee follow closely those adopted by the Abbeylara Sub-Committee and are ultimately modelled on the procedures adopted by the Committee of Public Accounts Sub-Committee on Certain Revenue Matters (the DIRT Inquiry). The Order makes a declaration that the procedures of the Abbeylara Sub-Committee do not comply with natural or constitutional justice – de facto it may be that the procedures adopted by the Oireachtas for parliamentary inquiries under the compellability legislation equally do not comply with the requirements of natural or constitutional justice. The issue of our procedures is dealt with more fully in Part Seven of this report. The first Order 4.5 The High Court has ruled in effect, in its first Order, that all public inquiries undertaken by the Houses of the Oireachtas are ultra vires the powers of the Oireachtas where they are “liable to result in findings of fact or expressions of opinion adverse to the good name, reputation and/or livelihoods of persons not members of such Houses”. The reasoning in support of this ruling asserted that the Houses of the Oireachtas did not have an inherent power to inquire and did not have a statutory power to inquire in the absence of such an inherent power. 4.6 The effect generally of this ruling and the reasoning behind it is to put a stop to Oireachtas inquiries in such circumstances at least until the Supreme Court decides the issue on appeal. The circumstances identified in the Order apply to the mini-CTC Inquiry. While our Inquiry is incomplete and we have not yet considered the evidence it is of course possible that our Inquiry might result in findings of fact or expressions of opinion that might be liable to be adverse to the good name, reputation and/or livelihoods of persons who are not members of the Oireachtas. Therefore the Sub-Committee felt that it must adjourn. The Abbeylara Test 4.7 The Abbeylara decision introduces for the future in its first Order a test that shall operate in respect to its application generally. The test introduced is that of an Oireachtas inquiry being “liable” to result in findings of fact etc. in respect of non-members. When a parliamentary inquiry is liable to result in such an outcome the inquiry is ultra vires the powers of the Oireachtas. In the view of the Sub-Committee this appears to set such a low threshold of objection to the jurisdiction of the Oireachtas to inquire in the circumstances defined that the jurisdiction does not exist in reality. Other issues 4.8 It would appear from the reasoning in the decision of the Court that this is the considered intention of the Order. The decision contains a lengthy discussion of whether there is inhering in parliament a power of adjudication of the kind being exercised by the Abbeylara Sub-Committee and our Sub-Committee. 4.9 One aspect of the Abbeylara decision was that in practice it had the effect of preventing the continuance of our inquiry. This occurred at a critical moment. The legal representatives of the McDonnell family were on the point of concluding the cross-examination of witnesses. While the family of the late Mr. Michael McDonnell did not seek to complain about the delay occasioned by the Abbeylara decision the Sub-Committee was conscious that the right of the family of the late Mr. Michael McDonnell to cross-examine was at the least being postponed – at least until the decision of the Supreme Court, which is at the time of writing awaited. 4.10 Secondly the Sub-Committee was equally conscious of the fact that the right of various parties and persons to make closing submissions was also at least postponed as a result of the injunction, again at least pending the outcome of the Supreme Court appeal. As a result of our inability in the circumstances to complete our Inquiry the right of cross-examination has ultimately been denied, and the right to make concluding submissions has, in effect, disappeared. 4.11 The third issue facing the Sub-Committee on the morning of 27 November was the decision of the Supreme Court in upholding the ruling of Mr. Justice O' Caoimh on 31 October 2001 to lift the injunction then in place on our proceedings. In communicating the decision of the Court Chief Justice Keane said
The language of the Supreme Court decision – the suggestion that the Sub-Committee was acting as part of the legislative function – is close to the view taken by the US Supreme Court in various decisions relating to the system of Congressional inquiry in the United States (further discussed at paragraph 6.14). Of course the observations of the Chief Justice are not definitive. The judgment of the Supreme Court in the appeal from the ruling of Mr. Justice O'Caoimh was based on an interlocutory hearing and therefore, does not have the status of a final judgment. That is, of course, one of the issues which falls to be determined in the Abbeylara appeal, which is awaited. 4.12 In considering the quandary into which it had been put by the Abbeylara decision the Sub-Committee decided, respectful of the constitutionally enshrined doctrine of the separation of powers, that it should not take any step that would consciously undermine the judicial function. As explained by the Chairman in his opening statement of 27 November –
4.13 These remarks are of course qualified by the need, to the extent necessary, to consider the decision of the Supreme Court on the Abbelara appeal, when that decision is delivered. |
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