A declaration by the High Court that the Oireachtas has no inherent power to establish inquiries which may lead to findings or opinions adverse to the good names of citizens has "radical effects" on the capacity of the Oireachtas to discharge its constitutional functions, the Attorney General has argued before the Supreme Court.
Mr Michael McDowell SC yesterday said the declaration had paralysed parliamentary committees, particularly the role of the Committee of Public Accounts. It also appeared it rendered the Private Bill procedure invalid.
The declaration was unnecessary and should never have been granted to the gardaí who challenged the conduct of the Oireachtas subcommittee inquiry into the shooting dead by gardaí of John Carthy at Abbeylara, Co Longford, in April 2000.
The High Court had erred in accepting the gardaí's claim that the issue to be decided was whether the Oireachtas had such a power of inquiry. The real issue was the extent of such a power.
He said the declaration "ignored in its entirety" 1997 legislation relating to compelling the attendance of witnesses and production of documents before Oireachtas committees, legislation which ensured that those affected by such provisions had remedies to safeguard their personal rights.
Mr McDowell agreed the sub-committee inquiry was a new form but insisted it was not unprecedented. He argued it was within its scope to take a view that the killing of Mr Carthy was unlawful and to opine that the law might need to be changed in relation to the discharge of firearms in such situations. The views of any parliamentary committee had no legal effect and constituted no more than the opinions of the committee about the facts examined by them.
He complained that the High Court had failed to consider in any detail the constitutional provisions concerning the position and duties of elected representatives and the relationship between these and the power to conduct inquiries.
It had failed to consider how all of those matters and the right of a citizen to their good name should be balanced against each other. The legislative power of the Oireachtas necessarily included and required a power to investigate matters related to potential legislation and the right to one's good name was not absolute.
Mr McDowell was opening the State's appeal against a divisional High Court judgment of November last upholding a challenge by 36 gardaí to an Oireachtas sub-committee inquiry into the shooting dead of Mr Carthy. The court found several defects in the manner in which the subcommittee of the Oireachtas Joint Committee on Justice, Equality, Defence and Women's Rights had proceeded.
It also granted a declaration that the Oireachtas had no inherent power to establish inquiries which may lead to findings of fact or expressions of opinion adverse to the good name, reputation or livelihoods of persons who were not members of the Oireachtas.
The judgment is being appealed by the subcommittee, by Fine Gael TD Mr Alan Shatter, a member of the subcommittee but who is making his own representations, and by the Attorney-General and the State.
Mr McDowell said his appeal related only to the High Court declaration and not to the other reliefs granted relating to the nature and scope of the subcommittee's inquiry. He said the declaration was a general proposition not related to the particular facts of this case.
If allowed to stand, it would have a general application and would be binding on the State. It had "radical effects" on the capacity of the Oireachtas to discharge its constitutional functions, the most obvious being on the work of the Public Accounts Committee.
If it was the case, there could be no Oireachtas inquiries which might affect the good names of citizens, there could be no investigations into allegations of misappropriation, negligence or improper motive of persons using public funds. This was a "full-blooded assault" on the entitlement of the houses of the Oireachtas and their committee to conduct inquiries.
The Attorney General submitted the Oireachtas had a constitutional entitlement to establish such inquiries and argued that there was a legislative basis for the same.
There were issues arising from the Abbeylara incident which related to the functions of the Oireachtas. One related to policing; the Minister for Justice was charged by the Oireachtas with establishing a Garda force to police the State and the Oireachtas was entitled to investigate whether that was properly exercised.
There was also the use of firearms. If their use as occurred at Abbeylara was permitted under law, the Oireachtas could look into whether it might be appropriate to change the law. It very much devalued the capacity of keeping the Executive accountable to the Dáil if inquiries had to be conducted in a "sealed box" and if people could not be compelled to appear before them and produce documents, Mr McDowell said.
The appeal continues today.
