Maguire v Ardagh

• Jurisdiction: Ireland
• Judge: Denham J.,Mrs Justice McGuinness,Keane C.J.,Mr Justice Francis D Murphy,Murray J.,Mr. Justice Hardiman,Geoghegan J.
• Judgment Date: 11 April 2002
• Neutral Citation: [2002] IESC 21
• Date: 11 April 2002
• Court: Supreme Court
• Docket Number: 324, 326, 333, 334/01,[2001

Between:

Sean Ardagh, Monica Barnes, Brendan Howlin, Michael Moynihan, Marian McGennis, Alan Shatter, Denis O'Donovan, Thomas Enright, Beverley Cooper-Flynn, Frances Fitzgerald, John McGuinness, Jan O'Sullivan, Billy Timmins, Eddie Wade, George V Wright, Eddie Bohan, Helen Keogh, Tony Kett and Kathleen O'Meara Being the Members for the Time Being of the Oireachtas Joint Committee on Justice Equality Defence and Womens' Rights, Ireland and the Attorney General

Appellants

and

Martin Maguire, Frank McHugh, Tom Dooley, Mary Mangan, Dan Monaghan, Anthony Foley, James Quinn, Alan Murray, Maeve Gorman, John Gibbons, Colin White, Jack Kilroy, Gerry Barnes, Eugene Dunne, Justin Browne, Eugene Boland, James Campbell, Michael Jackson, Gerry Russell, Michael O'Sullivan, Aidan McCabe, William Sisk, Ronan Carey, Tony Ryan, Joseph Finnegan, Oliver Flaherty, Desmond Malley, Peter Earley, Oliver Cassidy, David Martin, Mary Ann O'Boyle, Turlough Buren, John Boyle, Blaithin Moran, Sinead Conniffe and Frank Reynolds

Respondents

[2002] IESC 21

Keane CJ

Denham J

Murphy J

Murray J

McGuinness J

Hardiman J

Geoghegan J

324, 326, 333, 334/01

2001 Record No. 329 JR

THE SUPREME COURT

Synopsis:

CONSTITUTIONAL LAW

Judicial review

Fair procedures - Separation of powers - Oireachtas - Dáil Éireann -Jurisdiction of courts -Gardaí Síochána - Inquiry by sub-committee - Attendance of witnesses - Compellability - Bias - Whether proposed inquiry ultra vires - Whether courts could intervene in inquiry - Committees of the Houses of the Oireachtas (Compellability, Privileges And Immunities Of Witnesses) Act, 1997 - Bunreacht na hÉireann, 1937 (324;326; 333 & 340/2001 - Supreme Court - 11/4/2002)

Ardagh v Maguire - [2002] 1 IR 447

Facts: The applicants, members of An Gardaí Síochána, had been involved in an incident at Abbeylara in which a young man was shot dead. The respondents as members of an Oireachtas sub-committee sought to inquire into the incident and purported to call the applicants to give evidence before them. The applicants instituted judicial review proceedings seeking to challenge the actions of the respondents and sought a declaration that the proposed inquiry was ultra vires the powers of the Houses of the Oireachtas. The applicants challenged the jurisdiction of the committee to carry out the inquiry and claimed that there had been a failure to comply with the provisions of the Committees of the Houses of the Oireachtas (Compellability, Privileges And Immunities Of Witnesses) Act, 1997. The High Court, sitting as a divisional court, gave judgment in favour of the applicants. Nowhere in the Constitution was there a provision that provided that such an inquiry was immune from review. Persons could only be compelled to take part in Parliamentary inquiries, be subjected to cross-examination and the possibility of adverse findings if the committee was acting within jurisdiction. There was no inherent power in parliament to conduct an inquiry involving adjudicative functions of the type the sub-committee had sought to exercise. Such a power did not exist under the present constitutional regime nor did it exist under the Constitution of the Free State of 1922. The members of the sub-committee appealed.

Held by the Supreme Court (delivering seven separate judgments) in dismissing the appeal in a majority verdict. Keane CJ held that the conclusion of the High Court that there was no inherent power to hold such inquiries was wrong in principle and irreconcilable with previous caselaw. The appeal should be allowed. Denham J held that the Constitution gave no power, explicit or implied, to the members of the Houses of the Oireachtas to hold such an inquiry. The appeal would not be allowed. Murphy J held that the Committees of the Houses of the Oireachtas (Compellability, Privileges And Immunities Of Witnesses) Act, 1997 empowered a committee or sub-committee of the Oireachtas to compel the attendance before it of any person required to give evidence and to produce any document. The constitutionality of the 1997 Act had not been challenged. The appeal should be allowed in its entirety. Murray J held that the Oireachtas did not have the power to establish committees of inquiry to make findings of fact and reach conclusions involving the personal culpability of individual citizens for alleged wrongdoing of the gravest kind thereby impugning the good name of a citizen. The appeal should be disallowed. McGuinness J held that the appeal would not be allowed, however the form of declaration granted by the High Court was too wide. The declaratory relief should only relate to the inquiry in issue.

JUDGMENT delivered the 11th day of April, 2002 by Keane C.J.

Introduction.

This is an appeal from a judgment and order of a divisional court of the High Court (Morris P, Carroll J and Kelly J) which effectively brought to an end an inquiry being conducted by a sub-committee (hereafter “the Committee”) which had been purportedly established by a Joint Committee of both Houses of the Oireachtas to inquire into what has become generally known as “the Abbeylara incident”. The appellants are the members for the time being of the Oireachtas Joint Committee, Ireland and the Attorney General. The respondents are all members of An Garda Síochána, some or all of whom received directions from the Committee to attend before and give evidence to the Committee.

The incident which gave rise to the purported inquiry being held by the Committee occurred on the 19th/20th April 2000 at Tonymore, Abbeylara, Co. Longford. It culminated in a 27 year old man named John Carthy being shot dead by one or more members of the Garda Síochána.

The proceedings in the High Court began with an application to Butler J on the 21st May 2001 on behalf of the respondents for liberty to apply for a number of reliefs by way of judicial review, including:

(a) declarations that the conduct of an inquiry of this nature was ultra vires the powers of the Houses of the Oireachtas,

Leave having been granted and statements of opposition having been filed on behalf of the appellants, the substantive proceedings came on for hearing before the divisional court. In a reserved judgment delivered on the 23rd November 2001, the divisional court granted all but one of the reliefs being sought by the respondents. Those of the appellants who are members of the Joint Committee referred to in the title of the proceedings have appealed to this court from the entire of the judgment and order of the High Court. The appeal brought by the Attorney General and Ireland is confined to that part of the judgment which granted a declaration that the conduct of a public inquiry such as this by members of the Oireachtas was ultra vires the powers of the Houses of the Oireachtas.

The History of the Inquiry

The proceedings in both Houses of the Oireachtas and its various committees which culminated in the hearings before the Committee are set out in considerable detail in the judgment of the divisional court, as is the history of the hearings up to the time at which the proceedings in the High Court were initiated.

Before I embark on the history of those events, I should refer to the position in law of the committee referred to in the title, i.e., the Oireachtas Joint Committee on Justice, Equality, Defence and Women's Rights. It was established pursuant to Order 78 of the Standing Orders of the Dáil which empowers the Dáil to

“appoint a select committee to consider and, if so permitted, to take evidence upon any bill, estimate or matter, and to report its opinion for the information and assistance of the Dáil.”

Order 78 also provided that

“Such a motion shall specifically state the orders of reference of the committee, define the powers devolved upon it, fix the number of members to serve on it, state the quorum, and may appoint a date upon which the committee shall report back to the Dáil.”

A power in identical language, mutatis mutandis, is conferred on the Seanad by Order 64 of its standing orders.

The Dáil, in pursuance of the power conferred on them, adopted Orders of Reference appointing a select committee ultimately called “the Select Committee on Justice, Equality, Defence and Women's Rights”. That Committee was to be joined with a select committee to be appointed by Seanad Éireann to form the Joint Committee on Justice, Equality, Defence and Women's Rights. The Orders of Reference of Seanad Éireann similarly ordered that a Select Committee consisting of five members of that house should be appointed to be joined with the select committee of Dáil Éireann to form the Joint Committee on Justice, Equality, Defence and Women's Rights (hereafter “the Joint Committee”.)

Article 15.10 of the Constitution clearly and emphatically recognises the right, and indeed the duty, of each House of the Oireachtas to make its own Rules and Standing Orders and it has never been in issue at any stage in these proceedings that the Joint Committee was lawfully established in accordance with those procedures.

In order to place properly in context the subsequent purported establishment of the Committee and the circumstances in which the present proceedings were initiated and determined in the High Court, I must refer in more detail to the events that occurred at Abbeylara and their immediate aftermath, without attempting to prejudge in any way issues which may yet have to be resolved in some forum, either inside or outside the Oireachtas.

The episode started on the evening of the 19th April 2000 when the Gardaí at Granard received a phone message from Mrs. Rose Carthy, the mother of John Carthy, seeking Garda assistance. It appeared that, earlier that afternoon, the young man had taken his legally held shotgun from a locker in their home, loaded it and fired two shots from the front door. In response to the call, Gardaí went to the location.

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