An Oireachtas subcommittee inquiry into the fatal shooting of John Carthy at Abbeylara, Co Longford, in April 2000 behaved from the very start as if it were a tribunal of inquiry when tribunals were "very different beasts", the Supreme Court was told yesterday.
Mr Donal O'Donnell SC, for 36 gardaí who are resisting the State's appeal against a High Court decision upholding the gardaí's challenge to the conduct of the subcommittee inquiry, said the State was asserting that there is within the Constitution an inherent power in the Oireachtas to itself conduct inquiries such as that of the Abbeylara subcommittee. This was a power which had never been seen before in the format which was asserted, a power which was "entirely unique".
Although there was nothing to stop the Oireachtas receiving information, there was a constitutional difference between that and an inherent power to inquire. What was being asserted here was a power to make findings of fact and reach conclusions, including, if necessary, of culpability.
He was not saying the Oireachtas could not initiate inquiries but was contending the Oireachtas has no power to conduct such investigations itself. Tribunals of inquiry differed from parliamentary committees as tribunals were not agents of the legislature.
Mr O'Donnell was making arguments supporting his contention that there is no inherent power in the Oireachtas to set up and itself conduct inquiries which have the potential to make findings of fact or expressions of opinion adverse to the good names and livelihoods of citizens who are not members of the Oireachtas.
In upholding the gardaí's challenge to the inquiry, the High Court declared there was no such inherent power. The focus of the State's appeal against the High Court decision, which has halted the work of the subcommittee, is against that declaration.
Yesterday was the eighth day of the appeal hearing which resumes today.
In his submissions, Mr O'Donnell said it was clear, from questions asked of senior gardaí who appeared before public hearings of the subcommittee last April, that a member had taken up the brief of the Carthy family and asked questions on whether there was lawful justification for the fourth shot fired at Mr Carthy, which was the fatal shot.
Such questions were asked at a time when there was still significant confusion about the subcommittee's terms of reference and Mr John Rogers SC, who appeared for the gardaí at the inquiry, had expressed concerns about the implications of questions posed, particularly by Fine Gael deputy Mr Alan Shatter. This led to an assertion by Labour Party TD Mr Brendan Howlin of a concerted effort to frustrate the work of the subcommittee, Mr O'Donnell said.
But the subcommittee was saying it was entitled to make findings of fact and, if necessary, culpability, and Mr Rogers properly had raised concerns. While counsel accepted there might be understandable frustration with lawyers' interventions at such hearings, there was a risk that such frustration could become a dislike or resentment of the law itself.
It was in the context of all of this that the Supreme Court should consider the implications of the subcommittee's decision to defer the right of his clients to cross-examination of witnesses before the committee, counsel said. This deferral breached the right to fair procedures.
