Parliamentary Inquiries: The Context of the Joint Oireachtas Committee's Proposals

AuthorDavid Gwyn Morgan
[2011] COLR
Professor David Gwyn Morgan
Writing in the US, Professor Bickel famously called the judiciary ‗the least dangerous branch [of
Certainly in Ireland, the doubtful accolade of the most toothless branch of
government belongs to the Oireachtas. To take some examples: since Independence, very few
Private Members Bills have navigated the tortuous course to the status of law.
Again, the power,
usually provided as a safeguard when delegated legislation is being made, which enables either
House to pass a resolution negating a Statutory Instrument, has seldom been invoked, and never
successfully. And the feat of removing a Government and replacing it by a new one, without an
intervening General Election, has been achieved only once (1994) since Independence. A recent
book on the Oireachtas
the first since 1958 includes lawyers as authors of only two of its 22
chapters, which suggests that the Oireachtas‘ legal powers are seldom exercised to their full
extent. In summary, it may be said that, if man proposes and God disposes, the Oireachtas does
neither, with the Government initiating almost all measures, which are then ushered through each
House by the responsible Minister, with the Government Whip shepherding in any stragglers
among the Government‘s flock of Deputies and Senators.
As symbol and substance of this lack of influence or authority, the Oireachtas‘ powers (or
lack thereof) in the field of inquiries will do nicely. This lack was established by a Divisional
High Court and confirmed by a majority of five to two in the Supreme Court, in the landmark (or
landmine) decision, popularly known as Abbeylara.
Small wonder that, in 2011, the Joint
Oireachtas Committee on the Constitution proposed that there should be a Constitutional
Amendment to Article 15 to change this position.
Joint Oireachtas Committee on the Constitution Review of the Parliamentary Power of Inquiry (Parliamentary
Number A11/0140, 2011). As of February 2011, this is the most recent i n a series which was launched in response to
the Constitutional Review Group 1996 (chaired by Ken Whitaker).
In preparing its Report, the Committee heard papers from John Rogers SC (17 November 2010); John O‘Dowd (1
December 2010); Professor Gary Murphy and Eoin O‘Malley (15 December 2010); Professor Donncha O‘Connell
(12 January 2011); and the present writer (17 October and 3 November 2010). Submissions were also elicited from
members of the public and contributions were received from, amongst others, the Bar Council and the Law Society
of Ireland.
A Bickel The Least Dangerous Branch: the Supreme Court at the Bar o f Politics (Yale University Press New
Haven 1986).
Six measures which became law between 1951 and 1958 are listed in D G wynn Morg an Constitutional Law of
Ireland (Roundhall Press 1990) 231. Subsequently, mainly in the 1990s, there have be en five others, listed in J
O‘Dowd ‗Parliamentary Scrutiny of Bills‘ in M MacCarthaigh and M Manning (eds) The Houses of the Oireachtas:
Parliament in Ireland (IPA 2010).
M MacCarthaigh and M Manning (eds) The Houses of the Oireachtas: Pa rliament in Ireland (IPA 2010). See also
JL McCracken Representative Go vernment in Ireland (Oxford Universit y Press London 1958); D O‘Sullivan The
Irish Free State and its Senate (Faber and Faber London 1940).
Maguire and Ors v Ardagh and Ors [2002] 1 IR 385.
[2011] COLR
As we shall see in Part B, there are a number of different forms of inquiry, for example:
the C&AGPublic Accounts Committee investigations, inquiries under the Compellability Acts
or the Private Bills procedure.
Each of these may the position is by no means clear have
been affected by the decision in Abbeylara.
On a macro level, one might say that the present law illustrates the very stringent
constitutional values which protect an individual accused of wrongdoing,
including their good
name, coming up against the weak position assigned by the judiciary to the Parliament. In such
an unequal contest, there can only be one outcome, so that the result in Abbeylara was quite
predictable and likely to be followed.
There is a thorough survey of all the Oireachtas inquiries, since the foundation of the State, in
John O‘Dowd‘s article.
Accordingly, here we need only start the clock at Re Haughey, giving a
brief survey of the highlights, which those familiar with the field may prefer to skip.
1 Re Padraig Haughey
Apart from being a window on the State‘s relations with the troubles in Northern Ireland, Re
also afforded a landmark ruling in the present field. This case arose out of the Dáil
Committee of Public Accounts (PAC) investigation into the expenditure of a grand-in-aid for
Northern Ireland relief, which had been voted to assist the Red Cross but, allegedly, had been
diverted to buy armaments for the IRA. The main legal point concerned the fact that, during the
Committee‘s Hearings, a garda officer made a number of allegations against Mr Pádraig (Jock)
Haughey, so much so that the Supreme Court considered that his good name was called into
question. Because of this, Ó Dálaigh CJ, writing for the Supreme Court majority, held that the
Committee ought to have granted Mr Haughey certain procedural safeguards. Ó Dálaigh CJ‘s
of these safeguards has been influential in respect of the procedures of inquiries, both
Committees of the Houses of the Oireachtas (Compellability, Privileges and I mmunities of Witnesses) Act 1997,
as amended very slightly in 2004 (Committees of the Houses Act 1997).
T hough contrast Hardiman J in Abbeylara (n 5), 658: ‗It is a challenge to a novel assertion of a power to hold
individual citizens directly accountable to a parliamentary committee. It does not seek to challenge the established
practices of the Oireachtas.‘
This may be at the expense of their victims. A recent example of this general proposition, from another field, is to
be found in Re Commission to Inquiry into Child Abuse [2002] 3 IR 459, 47 6.
J O‘Dowd ‗Knowing How Way Leads on to Way: Some Reflectio ns on the Abbeylara Decision‘ [2003] Irish Jurist
162, 205-220 (Reflections).
Padraig Haughey was the late Charles Haughey‘s brother. Ó Dálaigh J stated at [19 71] IR 217, 263:
(a) that [Mr Haughey] should be furnished with a copy of the evidence which reflected on his good name; (b)
that he should be allowed to cross-examine, by counsel, his accuser or accusers; (c) that he should be allowed
to give rebutting evidence; and (d) that he should be permitted to address, again by counsel, the Committee in
his own defence.

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