Maguire v Ardagh

 
FREE EXCERPT

[2002] IESC 21

THE SUPREME COURT

KEANE CJ

DENHAM J

MURPHY J

MURRAY J

MCGUINNESS J

HARDIMAN J

GEOGHEGAN J

324, 326, 333, 334/01
ARDAGH & ORS v. MAGUIRE & ORS

BETWEEN

SEAN ARDAGH, MONICA BARNES, BRENDAN HOWLIN, MICHAELMOYNIHAN, MARIAN McGENNIS, ALAN SHATTER, DENIS O'DONOVAN, THOMASENRIGHT, BEVERLEY COOPER-FLYNN, FRANCE FITZGERALD, JOHN MCGUINNESS, JANO'SULLIVAN, BILLY TIMMINS, EDDIE WADE, GEORGE V WRIGHT, EDDIE BOHAN,HELEN KEOGH, TONY KETT AND KATHLEEN O'MEARA BEING THE MEMBERS FOR THETIME BEING OF THE OIREACHTAS JOINT COMMITTEE ON JUSTICE EQUALITY DEFENCEAND WOMEN'S 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 BORWNE, EUGENE BOLAND, JAMES CAMPBELL, MICHAEL JACKSON, GERRYRUSSELL, MICHAEL O'SULLIVAN, AIDAN McCABE, WILLIAM SISK, RONAN CAREY,TONY RYAN, JOSEPH FINNEGAN, OLIVER FLAHERTY, DESMOND MALLEY, PETEREARLEY, OLIVER CASSIDY, DAVID MARTIN, MARY ANN O'BOYLE, TURLOUGH BUREN,JOHN BOYLE, BLAITHIN MORAN, SINEAD CONNIFFE AND FRANKREYNOLDS
RESPONDENTS

Synopsis:

CONSTITUTIONAL LAW

Judicial review

Fair procedures - Separation of powers - Oireachtas - D�il �ireann -Jurisdiction of courts -Garda S�och�na - 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 h�ireann, 1937 (324;326; 333 & 340/2001 - Supreme Court - 11/4/2002)

Ardagh v Maguire - [2002] 1 IR 447

Facts: The applicants, members of An Garda S�och�na, 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.

1

11TH DAY OF APRIL, 2002BYKEANE C.J.

KEANE C.J.
INTRODUCTION.
2

This is an appeal from a judgment and order of a divisional court of theHigh Court (Morris P, Carroll J and Kelly J) which effectively broughtto an end an inquiry being conducted by a sub-committee (hereafter"the Committee") which had been purportedly established by aJoint Committee of both Houses of the Oireachtas to inquire into whathas become generally known as "the Abbeylare incident." Theappellants are the members for the time being of the Oireachtas JointCommittee, Ireland and the Attorney General. The respondents are allmembers of An Garda S�och�na, some or all of whom receiveddirections from the Committee to attend before and give evidence to theCommittee.

3

The incident which gave rise to the purported inquiry being held by theCommittee occurred on the 19th/20th April at Tonymore, Abbeylara, Co.Longford. It culminated in a 27 year old man named John Carthy beingshot dead by one or more members of the GardaS�ch�na.

4

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

5

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

6

(b) a declaration that the Committee was acting ultra viresthe powers conferred by the relevant resolutions of D�il andSeanad �ireann of 25th October 2000 and of the relevantlegislation,

7

(c) orders of ceritori quashing that resolution and other resolutionsand orders of the Committee and of a body called the CompellabilityCommittee,

8

(d) a declaration that the procedures adopted by the Committee didnot comply with the requirements of natural and constitutional justiceand;

9

(e) a stay on the proceedings of the Committee.

10

Leave having been granted and statements of opposition having been filedon behalf of the appellants, the substantive proceedings came on forhearing before the divisional court. In a reserved judgment delivered onthe 23rd November 2001, the divisional court granted all but one of thereliefs being sought by the respondents. Those of the appellants who aremembers of the Joint Committee referred to in the title of theproceedings have appealed to this court from the entire of the judgmentand order of the High Court. Theappeal brought by the Attorney General and Ireland is confined to thatpart of the judgment which granted a declaration that the conduct of apublic inquiry such as this by members of the Oireachtas was ultravires the powers of the Houses of the Oireachtas.

THE HISTORY OF THE INQUIRY
11

The proceedings in both Houses of the Oireachtas and its variouscommittees which culminated in the hearings before the Committee are setout in considerable detail in the judgment of the divisional court, asis the history of the hearings up to the time at which the proceedingsin the High Court were initiated.

12

Before I embark on the history of those events, I should refer to theposition in law of the committee referred to in the title, i.e., theOireachtas Joint Committee on Justice, Equality, Defence and Women'sRights, It was established pursuant to Order 78 of the Standing Ordersof the D�il which empowers the D�il to

"appoint a select committee to consider and, if so permitted,to take evidence upon any bill, estimate or matter, and to report itsopinion for the information and assistance of theD�il."

13

Order 78 also provided that

"Such a motion shall specifically state the orders ofreference of the committee, define the powers devolved upon it, fix thenumber of members to serve on it, state the quorum, and may appoint adate upon which the committee shall report back to theD�il."

14

A power in identical language, mutantis mutadis, is conferredon the Seanad by Order 64 of its standing orders.

15

The D�, in pursuance of the power conferred on them, adoptedOrders of Reference appointing a select committee ultimately called"the Select Committee on Justice, Equality, Defence and Women'sRights." That Committee was to be joined with a select committeeto be appointed by Seanad �ireann to form the Joint Committee onJustice, Equality, Defence and Women's Rights. The Orders of Referencesof Seanad �ireann similarly ordered that a Select Committeeconsisting of five members of that house should be appointed to bejoined with the select committee of D�il �ireann to formthe Joint Committee on Justice, Equality, Defence and Women's Rights(hereafter "the Joint Committee.")

16

Article 15.10 of the Constitution clearly and emphatically recognisesthe right, and indeed the duty of each House of the Oireachtas to makeits own Rules and Standing Orders and it has never been in issue at...

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