Haughey v Moriarty

 
FREE EXCERPT

[1998] IESC 17

THE SUPREME COURT

HAMILTON C.J.

DENHAM J.

BARRINGTON J.

KEANE J.

MURPHY J.

103/98
HAUGHEY & ORS v. MORIARTY & ORS

BETWEEN:

CHARLES J. HAUGHEY, MAUREEN F. HAUGHEY, EIMEAR MULHERN, ETHNA HAUGHEY

AND

MAUREEN HAUGHEY
Plaintiffs/Appellants

and

MR. JUSTICE MICHAEL MORIARTY, CLERK OF DÁlL ÉIREANN, CLERK OF SEANAD ÉIREANN, IRELAND AND THE ATTORNEY GENERAL
Defendants/Appellants

Citations:

TRIBUNALS OF INQUIRY (EVIDENCE) ACT 1921 S1(2)

CONSTITUTION ART 50

CONSTITUTION ART 5

CONSTITUTION ART 6

CONSTITUTION ART 15.2

CONSTITUTION ART 15.10

CONSTITUTION ART 28.2

CONSTITUTION ART 34.1

TRIBUNALS OF INQUIRY (EVIDENCE) (AMDT) ACT 1979 S3

TRIBUNALS OF INQUIRY (EVIDENCE) (AMDT) ACT 1979 S4

TRIBUNALS OF INQUIRY (EVIDENCE) (AMDT) ACT 1979 S5

TRIBUNALS OF INQUIRY (EVIDENCE) (AMDT) ACT 1979 S6

TRIBUNALS OF INQUIRY (EVIDENCE) ACT 1921 S1

GOODMAN INTERNATIONAL V HAMILTON 1992 2 IR 542

HAUGHEY, IN RE 1971 IR 217

QUINN, STATE V RYAN 1965 IR 70

EAST DONEGAL CO-OP LIVESTOCK MARTS LTD V AG 1970 IR 317

EDUCATIONAL CO V FITZPATRICK (NO 2) 1961 IR 345

SHEERIN, STATE V KENNEDY 1966 IR 379

NORRIS V AG 1984 IR 36

TRIBUNALS OF INQUIRY (EVIDENCE) ACT 1921 S2

TRIBUNALS OF INQUIRY (EVIDENCE) ACT 1921 S1(a)

TRIBUNALS OF INQUIRY (EVIDENCE) ACT 1921 S1(b)

TRIBUNALS OF INQUIRY (EVIDENCE) ACT 1921 S1(c)

CONSTITUTION ART 34

MCDONALD V BORD NA GCON 1965 IR 217

ETHICS IN PUBLIC SERVICE ACT 1995 S2(12)

CONSTITUTION ART 18.8

INTERPRETATION ACT 1889 S12(3)

ADAPTATION OF ENACTMENTS ACT 1922 S12

TRIBUNALS OF INQUIRY (EVIDENCE) ACT 1921 ADAPTATION ORDER 1930 S R & O 48/1930 PARA 3

EXECUTIVE POWER (CONSEQUENTIAL PROVISIONS) ACT 1937 S2(1)

CONSTITUTION (CONSEQUENTIAL PROVISIONS) ACT 1937 S4(1)

EXECUTIVE POWER (CONSEQUENTIAL PROVISIONS) ACT 1937 S6(1)

CONSTITUTION ART 52

MINISTERS & SECRETARIES ACT 1924 S1

CHUBB CABINET GOVT IN IRELAND 25

CONSTITUTION (CONSEQUENTIAL PROVISIONS) ACT 1937 S3

CONSTITUTION ART 40.1

CONSTITUTION ART 40.3

CONSTITUTION ART 15.5

CONSTITUTION ART 15.13

CONSTITUTION ART 18.8

CONSTITUTION ART 13.8

WATKINS V US 1956 354 US 178

SPECIAL COMMISSION ACT 1880

WHIDDY ISLAND DISASTER REPORT (1979)

STARDUST FIRE REPORT (1982)

MCGEE V AG 1974 IR 284

KENNEDY V IRELAND 1987 IR 587

NATIONAL IRISH BANK LTD V RADIO TELEFIS EIREANN 1998 2 ILRM 196

AG V HAMILTON 1993 2 IR 250

Synopsis

- [1999] 3 IR 28

Fair procedures — Tribunal ordered discovery of certain documents and records relating to the appellants — Whether appellants should have been allowed make representations to Tribunal prior to orders being made — Whether Tribunal is being conducted in accordance with fair procedures — Whether Seanad properly convened when resolution passed — Whether Tribunal purporting to administer justice — Whether resolutions amount to an unjust attack on appellants’ right to privacy — Whether resolutions amount to unjust attack on appellants’ constitutional guarantee of equality before the law — Whether order of Taoiseach establishing Tribunal is ultra vires the 1921 Act — Whether first named respondent is conducting Tribunal in a manner which is in breach of appellants constitutional rights — Whether appellants entitled to have terms of reference explained — Constitution of Ireland 1937, articles 5, 6, 15, 28, 34, 40 — Tribunals of Inquiry (Evidence) Act 1921 (c.7) — Tribunals of Inquiry (Evidence) (Amendment) Act 1979 (No 3) — Tribunals of Inquiry (Evidence) (Amendment) Act 1997 (No 42).

The powers of the Houses of the Oireachtas are not limited to those set down in Article 15 of the Constitution but must also include such powers as are normally exercised by a legislature in a democratic country. The 1921 Act is not invalid having regard to the provisions of the Constitution and there is nothing in the Constitution prohibiting the Oireachtas from directing that an inquiry be established to inquire into a specific matter of public importance. Such inquiry does not constitute an administration of justice and while the inquiry may enjoy many of the powers and privileges of the High Court it cannot enforce any of its findings or impose punishment. The resolutions directing the inquiry were not arbitrary, vague or oppressive and the argument that the inquiry was ultra vires the 1921 Act because it was not in aid of the legislative process was unsustainable. While a constitutional right to privacy undoubtedly exists this right is not absolute and may have to give way to the requirements of the common good. However, the appellants were entitled to fair procedures and fair procedures would require that they all be notified and allowed to make representations prior to the orders of discovery being made against third parties in possession of records relating to them. Further, the appellants were entitled to an explanation from the Tribunal of its terms of reference which could not however be regarded as final and which could require further explanation. The Supreme Court so held in declaring that the appellants were entitled to an explanation of the Tribunal’s interpretation of its terms of reference and also making an order quashing the orders of discovery made.

Chief Justice
1

Part of the Plaintiffs” appeal in the case is against the dismissal by the High Court of their claim for a declaration that the Tribunal of Inquiry (Evidence) Act, 1921 as amended is invalid having regard to the provisions of the Constitution. The Court in this decision deals with that issue.

2

The submissions made on behalf of the Plaintiffs/Appellants in this case extend beyond the mere issue as to whether or not the provisions of the 1921 Act (as amended) themselves are invalid having regard to the provisions of the Constitution and raise the issues as to:-

3

(a) whether the Houses of the Oireachtas have jurisdiction to resolve that it is expedient that a tribunal be established for enquiring into a definite matter described in the Resolution as of urgent public importance;

4

(b) the jurisdiction of the Taoiseach or a Minister of the Government, acting in pursuance of the said Resolution, to appoint a tribunal for such purpose and to provide that the provisions of the 1921 Act (as amended) shall apply to the Tribunal so established;

5

(c) whether the provisions of the 1921 Act (as amended) can apply to such a Tribunal of Inquiry;

6

(d) whether the provisions of the 1921 Act continued to be of full force and effect having regard to the provisions of Article 50 of the Constitution, and

7

(e) whether the provisions of the 1921 Act (as amended) are invalid having regard to the provisions of the Constitution.

8

These issues are of general application and must be considered by the Court without regard to the terms of the Resolution and Order made in the instant case.

9

The Court considers that the following provisions of the Constitution are relevant to these issues.

"Ireland is a sovereign, independent, democratic state."

Article 5 which provides that:-
Article 6 which provides that:-
10

2 "1. All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.

11

2. These powers of government are exercisable only by or on the authority of the organs of State established by this Constitution."

"1. The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas."

"Each House shall make its own rules and standing orders, with power to attach penalties for their infringement, and shall have power to ensure freedom of debate, to protect its official documents and the private papers of its members, and to protect itself and its members against any person or persons interfering with, molesting or attempting to corrupt its members in the exercise of their duties."

"The executive power of the State shall, subject to the provisions of this Constitution, be exercised by or on the authority of the Government."

"Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public."

Article 15.2 of the Constitution which provides:-
Article 15.10 which provides:-
Article 28.2 which provides that:-
Article 34.1 which provides that:-
12

The Court considers it necessary at this stage to set forth the relevant provisions of the 1921 Act (as amended) and to summarise the effect of such provisions.

13

The Tribunals of Inquiry (Evidence) Act, 1921 (hereinafter referred to as the 1921 Act) is a short Act expressed to be“An Act to make provision with respect to the taking of evidence before and the procedure and powers of Certain Tribunals of Inquiry” and provides as follows:-

"1....

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