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Redmond v. Flood [1999] IESC 12 (6th January, 1999)
THE
SUPREME COURT
JUDICIAL
REVIEW
Hamilton
CJ.
O’Flaherty
J.
Denham
J.
Barrington
J.
Murphy
J.
352/98
BETWEEN:
GEORGE
REDMOND
Applicant
and
MR.
JUSTICE FEARGUS FLOOD, THE SOLE MEMBER OF THE TRIBUNAL OF INQUIRY
INTO
CERTAIN PLANNING MATTERS AND PAYMENTS
Respondent
Judgment
of the Court delivered on the 6th day of January 1999 by Hamilton C.J.
1. On
the 22nd day of December 1998 the Applicant herein applied to the High Court
(Mr. Justice C. Kelly) for leave to apply for the following reliefs:-
(1)
An
Order of
Certiorari
by way of an application for judicial review of the decision of the Respondent
(made on a date unknown to the Applicant) to investigate certain allegations
made concerning the Applicant by one James Gogarty.
(2)
An
Order of
Certiorari
by way of an application for judicial review of the decision of the Respondent
(made on a date unknown to the Applicant) to
________________________________________________
(2)
conduct
a full public inquiry into certain allegations made concerning the Applicant by
one James Gogarty.
(3)
An
Order of Prohibition by way of an application for judicial review prohibiting
the Respondent from investigating or further investigation certain allegations
made concerning the Applicant by one James Gogarty.
(4)
An
Order of Prohibition by way of an application for Judicial Review prohibiting
the Respondent from conducting a public inquiry into certain allegations made
concerning the Applicant by one James Gogarty.
(5)
A
Declaration that the provisions of paragraph A5 of the Terms of Reference of
the Tribunal of Inquiry referred to in the title hereto (hereinafter “the
Tribunal”) do not authorise the Respondent as the sole member thereof to
inquire into or investigate any matter.
(6)
In
the alternative a Declaration that the provisions of paragraph A5 of the Terms
of Reference of the Tribunal do not authorise the Respondent as the sole member
thereof to inquire into or investigate any matter in public.
(7)
Further
and other relief, and
(8)
Costs.
2. By
order of the High Court made on that date, it was ordered
(i)
that
the Applicant do have leave by way of application for Judicial Review for the
reliefs set forth at paragraphs (2), (4), (7) and (8) on the ground that the
Tribunal has proceeded and proposes to proceed in a manner
________________________________________________
(3)
which
constitutes a breach of fair procedures and the Applicant’s
constitutional rights to same.
3. The
other reliefs sought by the Applicant were refused by the learned trial judge
and the Applicant has now appealed to this Court against such refusal.
4. As
appears from the grounds of appeal dated the 30th day of December 1998, the
Applicant applies to this Court for:-
(a)
leave
to apply for the following reliefs by way of Judicial Review, such leave having
been refused by the High Court by order of Mr. Justice Cyril Kelly dated the
22nd day of December, 1998:-
(i)
An
order of
certiorari
by way of an application for Judicial Review of the decision of the Respondent
(made on a date unknown to the Applicant) to investigate certain allegations
made concerning the Applicant by one James Gogarty;
(ii)
An
order of prohibition by way of an application for Judicial Review prohibiting
the Respondent from investigating, or further investigating, certain
allegations made concerning the Applicant by one James Gogarty;
(iii)
A
declaration that the provisions of paragraph A5 of the Terms of Reference of
the Tribunal of Inquiry referred to in the title hereto (hereafter “the
Tribunal”) do not authorise the Respondent, as the Sole Member thereof,
to inquire into or investigate any matter.
________________________________________________
(4)
(iv)
In
the alternative, a declaration that the provisions of paragraph A5 of the Terms
of Reference of the Tribunal do not authorise the Respondent, as the sole
member thereof, to inquire into or investigate any matter in public.
5. The
grounds upon which the relief herein before referred to as sought in the High
Court are set out in the Statement of Grounds filed by the Applicant and dated
the 22nd day of December 1998 as follows:-
“Grounds
upon which such relief is sought:
(i)
The
allegations made by the said James Gogarty concerning the Applicant
(hereinafter referred to as the Gogarty allegations) are not matters which the
Tribunal has been charged by Dáil Éireann to inquire urgently
into under its Terms of Reference and as such the Respondent has not
entitlement to inquire into same;
(ii)
Insofar
as the Gogarty allegations amount to allegations of actions by the Applicant
associated with the planning process which may amount to corruption, the
Tribunal’s obligation under its Terms of Reference to report thereon does
not authorise the Respondent to investigate those allegations;
(iii)
Without
prejudice to the aforementioned grounds, if the Tribunal is entitled or obliged
to investigate the Gogarty allegations it is obliged to do so in private since
the Tribunal’s entitlement to conduct a full public
________________________________________________
(5)
inquiry
arises only in relation to matters falling within paragraphs Al, A2, A3, A4, El
and E2 of its Terms of Reference;
(iv)
Without
prejudice to the aforementioned grounds, if the Tribunal is entitled or obliged
to investigate the Gogarty allegations it is obliged to do so in private since
under paragraphs B and E of its Terms of Reference, the Tribunal’s
entitlement to conduct a full public inquiry in relation to any particular
matter arises only once it has determined that sufficient evidence exists in
relation to that matter to warrant proceeding to a full public inquiry in
relation thereto and
(a)
The
Gogarty allegations and the other evidence gathered by the Tribunal in relation
thereto are not capable of constituting sufficient evidence in this sense, and
(b)
The
Tribunal has failed to afford the Applicant an opportunity to make
representations in relation to the evidence available to it before reaching a
determination as to the sufficiency thereof;
(c)
The
Tribunal failed to carry out an investigation prior to making a determination;
(d)
The
Tribunal has now received information since.
(v)
The
Tribunal’s interpretation of paragraph A5 of its Terms of Reference
purports to authorise the Tribunal to determine that any matter which it
chooses to investigate is a definite matter of urgent public importance and
________________________________________________
(6)
as
such is
ultra
vires
the Tribunals of Inquiry (Evidence) Acts 1921 to 1998;
(vi)
The
Tribunal has failed to set out its final interpretation of its Terms of
Reference but has instead set out its initial interpretation and has invited
and received submissions in relation thereto and has further stated that it is
entitled to revise its interpretation of its Terms of Reference with the result
that the status of the said initial interpretation is doubtful and the
Applicant cannot know how the Tribunal interprets its Terms of Reference and,
in particular paragraph A5 thereof;
(vii)
The
Tribunal has proceeded and proposes to proceed in a manner which constitutes a
breach of fair procedures and the Applicant’s constitutional rights to
same.”
6. As
appears from the note of the judgment of Cyril Kelly J. prepared by Counsel for
the Applicant, the learned judge stated:-
“In
these judicial review proceedings the Applicant seeks leave to apply on two
fundamental grounds. In the first place the Applicant says that the Tribunal
has adopted unfair procedures by proceeding to hear the case against the
Applicant who, at present, at least, has an unblemished reputation - in public
without having determined having heard all the evidence against him in private
that there is at least a
prima
facie
case against him. In these circumstances, I propose to grant the Applicant
leave to argue this point.
________________________________________________
(7)
However,
I do not think that the Applicant has presented an arguable case regarding the
interpretation of the paragraph A5 of the Terms of Reference. I consider that
the Tribunal is correct in the manner in which it has interpreted the Terms of
Reference and that it is entitled to investigate allegations of planning
corruption not otherwise expressly coming within the provisions of A1 to A4 of
the Terms of Reference. In those circumstances, I refuse the Applicant leave on
all grounds other than the fair procedures/public hearing point.”
7. The
appeal against the said judgment is grounded on the fact that he is alleged to
have erred in law and in fact or in a mixed question of law and fact as follows:-
“1.
In holding that the Applicant had not established such an arguable or stateable
case regarding the proper interpretation of paragraph A5 of the Tribunal of
Inquiry’s Terms of Reference as to merit granting the Applicant leave to
apply for judicial review regarding the Tribunal’s interpretation of
same, especially as the Tribunal had, inter alia, relied on a ministerial
statement in Dáil Éireann to justify the said interpretation.
2.
In holding that the Applicant had not established such an arguable or stateable
case that if the Tribunal’s interpretation of paragraph A5 of the
Tribunal of Inquiry’s Terms of Reference is correct, then the said
resolution of the Houses of the Oireachtas so far as it concerns A5 is ultra
vires the Tribunals of Inquiry (Evidence) Acts 1979 - 1998 inasmuch as it does
not confine the Tribunal’s remit to
________________________________________________
(8)
a
definite matter or matters of urgent public importances as to merit granting
leave to apply for judicial review in respect of this ground.
3.
In failing to grant leave to apply for judicial review in respect of grounds E.
(iii) and (iv) of the Applicant’s Grounding Statement dated 22nd day of
December 1998, since these grounds are intimately associated and linked with
the fair procedures grounds in respect of which the learned High Court judge
did grant leave.
The
relevant portion of the Terms of Reference of the Tribunal is:-
“That
Dáil Éireann resolves
(a)
that
it is expedient that a Tribunal be established under the Tribunals of Inquiry
(Evidence) Act, 1921 as adapted by or under subsequent enactments and the
Tribunals of Inquiry (Evidence) Amendment Act, 1979, to inquire urgently into
and report to the Clerk of the Dáil and make such findings and
recommendations as it sees fit, in relation to the following definite matters
of urgent public importance;
5.
In the event that the Tribunal in the course of its inquiries is made aware of
any Acts associated with the planning process which may in its opinion amount
to corruption, or which involves attempts to influence by threats or deception
or inducement or otherwise to compromise the disinterested performance of
public duties, it shall report on such acts and
________________________________________________
(9)
should
in particular make recommendations as to the effectiveness and improvement of
existing legislation governing corruption in the light of its inquiries.
(b)
And
that the Tribunal be requested to conduct its inquiries in the following
manner, to the extent that it may do so consistent with the provisions of the
Tribunals of Inquiry (Evidence) Acts, 1921 and 1979:-
(i)
to carry out such preliminary investigations in private as it thinks fit using
all the powers conferred on it under the Acts, in order to determine whether
sufficient evidence exists in relation to any of the matters referred to above
to warrant proceeding to a full public inquiry in relation to such
matters.”
8. Section
2 of the Tribunals of Inquiry (Evidence) Act, 1921 provides that:-
“A
Tribunal to which this Act is so applied as aforesaid -
(a)
shall
not refuse to allow the public or any portion of the public to be present at
any of the proceedings of the Tribunal unless in the opinion of the Tribunal it
is in the public interest expedient so to do for reasons connected with the
subject matter of the inquiry or the nature of the evidence to be given.
________________________________________________
(10)
The
application to the High Court and on appeal to this Court was grounded on the
affidavit of the Applicant sworn on the 22nd December, 1998 and the exhibits
referred to therein.
This
affidavit sets forth in detail the history of the Applicant’s dealing
with the Tribunal.
In
the course of the said affidavit he avers that:-
“The
first involvement I had with the Tribunal referred to in the title to these
proceedings (hereinafter referred to as “the Tribunal”) was when a
standard form questionnaire bearing the legend Form IV was furnished to me. I
completed this and returned it to the Tribunal and I beg to refer to a copy of
the said questionnaire as received by the Tribunal upon which, marked with the
letter “A”, I have signed my name prior to the swearing hereof As
appears from the stamp thereon, the same was received by the Tribunal on 1st
April 1998.
Subsequently,
I received a letter dated 20th day of October, 1998 from the Solicitor to the
Tribunal wherein it was indicated that certain allegations concerning me had
been made to the Tribunal by one James Gogarty (“Mr. Gogarty"). A copy of
an Affidavit sworn by Mr. Gogarty and dated the 12th day of October, 1998 was
furnished under cover of the said letter and I was referred to certain parts of
that Affidavit. In addition a copy of the Tribunal’s Terms of Reference
was enclosed and I was specifically referred to paragraphs A4 and A5 thereof.
It was indicated that the Respondent intended to commence hearing Mr.
________________________________________________
(11)
Gogarty’s
and related evidence in public on the 16th November 1998 at 10.30 a.m. at
Dublin Castle and that I should furnish a statement of my evidence and a list
of witnesses together with statements of their evidence on or before the 9th
November 1998 and I beg to refer to the aforesaid letter, and the copy
Affidavit and Terms of Reference enclosed therewith upon which marked with the
letters “B”, “C” and “D” respectively I
have signed my name prior to the swearing hereof.
As
can be seen from the said Affidavit there are essentially two allegations made
by Mr. Gogarty which concern me. Firstly, according to Mr. Gogarty he had two
meetings with me in relation to a 1983 planning permission in respect of
certain lands at Forrest Road, Swords, Co. Dublin and he asserts that, in
essence, I gave advice in relation to “a mechanism to overcome the
problems caused by the 1983 planning permission running out”. Mr.
Gogarty alleges that I gave this advice pursuant to an agreement or arrangement
with one Liam Conroy (whom I understand was an employee and/or a director of
one or more of the various companies controlled by Joseph Murphy Senior)
whereby I would be paid for same. Mr. Gogarty alleges that the payment was to
be calculated on the basis of 10 per cent of the notional saving resulting from
such advice and further alleges Joseph Murphy Junior later said to him that he
had “sorted out” and dealt with this payment to me.
Secondly,
Mr. Gogarty alleges that I received an envelope which he believed contained
£15,000.00 in cash at a meeting with himself, Frank Reynolds, Michael
Bailey and Joseph Murphy Junior which took place in Clontarf Castle in June
1989. This payment was allegedly to compensate me for the fact that the group
of companies controlled by Joseph Murphy Senior was not going to engage me as a
________________________________________________
(12)
consultant
though there is also a deliberate implication that it was to reward me for
services rendered in the past. In this regard I am alleged to have said that
“I put myself on the line” and particular reference is made to a
property called Turvey House in respect of which l am alleged to have said that
I “stuck my neck out”.
9. I
should say at the outset that these allegations are without foundation.”
“As
I indicated earlier in this Affidavit the allegations made by Mr. Gogarty and
concerning me are utterly baseless and without foundation and demonstrably so.
I have no concerns about these allegations being investigated since I am
confident that any proper investigations of the allegations will show them to
be completely without foundation and in this regard I have already co-operated
with the Tribunal in attending voluntarily to give my, entirely innocent,
version of events. My concern is that if the investigations are carried out at
a public hearing that my name will be muddied and that neither cross
examination, rebuttal evidence nor a final report from the Tribunal vindicating
my good name will be sufficient to undo the damage which will be done to me by
a protracted public hearing and by the airing of these unfounded allegations.
I
have no desire to hold up the work of the Tribunal and I am satisfied that the
allegations concerning me can readily be excised from the Affidavit of Mr.
Gogarty and a full public inquiry into other allegations which he makes can be
held.
________________________________________________
(13)
I
say and believe that I have no objection to the aforesaid allegations being
investigated in private and that it is only because the Tribunal has insisted
on airing these fanciful and baseless allegations concerning me in public that
I have embarked on this application.”
11. There
is no doubt but that an inquiry by the Tribunal into the allegations made by
Mr. Gogarty as contained in his affidavit sworn on the 12th day of October,
1998, allied with the exceptional inquisitorial powers conferred upon such
Tribunal under the 1921 Act as amended, necessarily exposes the Applicant and
other citizens to the risk of having aspects of their private lives uncovered
which would otherwise remain private and to the risk of having baseless
allegations made against them. This may cause distress and injury to their
reputations and may interfere with the Applicant’s constitutional right
to privacy.
12. The
right to privacy is however not an absolute right. The exigencies of the common
good may outweigh the constitutional right to privacy.
13. The
exigencies of the common good require that matters considered by both Houses of
the Oireachtas to be of urgent public importance be enquired into, particularly
when such inquiries are necessary to preserve the purity and integrity of
public life.
14. In
this case both Houses of the Oireachtas deemed it expedient that a Tribunal of
Inquiry be established to inquire into the matters set forth in the resolutions
of both
________________________________________________
(14)
15. Houses
of the Oireachtas and the presumption of constitutionality attaches to such
resolutions.
16. The
effect of such resolutions is undoubtedly to encroach upon the fundamental
rights of the applicant in the name of the common good but is justified by the
exigencies of the common good. Such encroachment must however be only for the
proper conduct of the inquiry.
17. The
Tribunal is obliged to conduct its inquiry and all necessary proceedings in
relation thereto in accordance with fair procedures and the principles of
constitutional justice.
18. Apart
altogether from the steps already taken by ‘the Tribunal’ as
outlined in the affidavit of the Applicant and illustrated in the exhibits
therein referred to, the sole member in the course of clarification of the
Terms of Reference given on the 21st October, 1998 stated at Paragraph 67
thereof that:-
“The
starting point of any Tribunal, in this State, in relation to the model of
procedure to be adopted is the Constitution. A Tribunal must at all times fully
respect the constitutional rights of all persons whose interests may be
affected by the course of the inquiry work.”
19. The
Tribunal further stated at paragraph 69:-
________________________________________________
(15)
“The
Supreme Court in a number of decisions, including the recent decisions in the
cases of
Haughey
and Ors. . v. Mr. Justice Moriarty & Ors
[eIWLR_1056] .
and
Bailey & Ors. . v. Mr. Justice Flood & Anor.
both delivered on the 28th July, 1998 has provided considerable guidance to
tribunals of inquiry as to the legal and constitutional parameters in which the
work of an inquiry is to be carried out. It is the intention of this Tribunal
to fully implement the guidance outlined in those decisions.
Fair
procedures and the principles of constitutional justice do not require that the
proceedings of the Tribunal be conducted in private. It is of the essence of
such inquiries that they be held in public for the purpose of allaying the
public disquiet that led to their appointment.
Provided
that the well established requirements of fair procedures and constitutional
justice, as laid down in numerous cases by this Court, are complied with, there
can be no question that the holding of the inquiry in public is in breach of
fair procedures and constitutional justice.
Terms
of Reference
In
the course of its judgment in
Haughey
& Ors. . v. Mr. Justice Moriarty & Ors.
delivered on the 28th day of July, 1998 [eIWLR_1056] this Court stated:-
________________________________________________
(16)
“The
interpretation of the Terms of Reference of the Tribunal is, at this stage,
entirely a matter for the Tribunal itself. In the United Kingdom, the Report of
the Royal Commission on Tribunals of Inquiry (1966) under the chairmanship of
Lord Justice Salmon, as he then was, stated at paragraph 79:-
‘The
Tribunal should take an early opportunity of explaining in public its
interpretation of its terms of reference and the extent to which the inquiry is
likely to be pursued. As the inquiry proceeds, it may be necessary for the
Tribunal to explain any further interpretation it may have placed on the terms
of reference in the light of the facts that have emerged.’
20. The
Court adopts that as a correct statement of the law and practice applicable to
such tribunals in this jurisdiction.”
21. Consequently,
the interpretation of the Terms of Reference of the Tribunal is at this stage a
matter for the Tribunal.
22. On
the 21st October 1998, the Tribunal, by public statement, gave its
interpretation of its Terms of Reference.
23. By
letter dated the 9th December 1998, the Respondent’s solicitors informed
the Applicants’ solicitor that
“Mr.
Gogarty’s allegations against your client appear at present to fall to
be dealt with under paragraph A5 of the Terms of Reference”.
________________________________________________
(17)
24. She
further stated as follows:-
“5.
If the allegations contained in James Gogarty’s affidavit relating to
your client are true, the actions of your client may amount to corruption as
defined by the Tribunal’s Interpretation of the Terms of Reference.
In
paragraph 31 of the affidavit, James Gogarty states that your client had an
agreement with Liam Conroy, whereby he would become a consultant with the
Murphy Group after retiring from Dublin County Council. It is stated that your
client drafted a letter to Dublin County Council in respect of a planning
permission which was about to lapse and in respect of which, the services
contribution amounted to £126,000 or thereabouts.
In
paragraph 33, he alleges that your client made it clear that if a renewal of
the planning permission was sought, without his intervention, the level of the
services contribution would be roughly double the level of the contribution
designated in 1983. He advised that if the course of action advised by him was
followed, Dublin County Council would accept the amount and would not require a
further services contribution to be paid under any renewal of the permission
for two years. In consideration of providing this service to Grafton
Construction Company Limited, your client is alleged to have had an agreement
with Liam Conroy whereby he would be paid 10% of the notional saving on the
contribution payment. James Gogarty further alleges that Joseph Murphy Jnr. had
sorted out and dealt with this payment to your client.
________________________________________________
(18)
In
paragraph 35, James Gogarty alleges that in June, 1989 your client was handed
an envelope containing £15,000 in cash because he was no longer going to
work as a consultant with Murphy Group upon his retirement and that at the time
of receipt of these monies, your client stated that he was thankful for the
payment as he had put himself on the line. If these allegations are true, they
may amount to attempt to influence by inducement or otherwise to compromise the
disinterested performance of public duties and consequently merit investigation.
6.
(i) The definition of a connected person or company for the purposes of
paragraph A4 is the definition of a connected person or connected company as
defined by the Ethics in Public Office Act, 1995;
(ii)
The
powers given to the Tribunal in paragraph A5 necessarily involve the
investigation of all of the circumstances surrounding the acts associated with
the
planning
process which might amount to corruption prior to reporting upon to Dáil
Éireann. Before any such report could be prepared, the Tribunal would
have to inquire into the facts to establish, inter alia,
(a)
whether
such a report should be made, and
(b)
the
content of any such report;
In
fairness to the parties who may have been involved in such acts, it is
necessary to inquire into all the circumstances
________________________________________________
(19)
including
their account or explanation of events prior to preparing any report on such
acts.
The
phrase, ‘shall report on such acts’ does extend to permitting the
Tribunal to investigate any acts associated with the planning process, which
may, in its opinion, amount to corruption or which involve attempts to
influence by threats or deception or inducement or otherwise to compromise the
disinterested performance of public duties in addition to the matters
specifically referred to elsewhere in the Tribunal’s Terms of Reference.
I
would refer you to the Dáil debate of 7th October, 1997, wherein the
Minister expressly defined the Terms of Reference of paragraph A5 in the
following extract appearing on page 101 and 102:
‘Paragraph
5 requires the Tribunal to report on any acts associated with the operation of
the planning process of which it becomes aware during its inquiries and which
it believes might amount to corruption or which involves attempts to compromise
the disinterested performance of public duties. Paragraph 5 is designed to be
as wide and specific as possible so that the Tribunal can investigate any
evidence which suggests corruption. If people bring matters to the attention of
the Tribunal, it will be in order for it to pursue them. While Deputy Gilmore
welcomed paragraph 5, he said it went too far. This shows the difficulty the
Whips had in drafting the Terms of Reference. I spoke to the Attorney General
about this matter and it was felt that if we tried to specifically list the
different incidents we wanted investigated, one would be left out. If that
incident arose
________________________________________________
(20)
during
the Tribunal, it would be stymied and a new one would have to be
established’.”
25. While
the Court has quoted the portion of the Minister’s speech in the said
letter, it is irrelevant to the issue of the proper interpretation of paragraph
A5 of the Terms of Reference. The interpretation thereof must depend in the
ordinary meaning of the words contained therein.
26. It
is clear from the terms of this letter that the Tribunal has interpreted the
said paragraph A5 as entitling him to inquire into and report on any acts
associated with the planning process which may in its opinion amount to
corruption or which involve attempts to influence by threats or deception or
inducement or otherwise to compromise the disinterested performance of public
duties and in particular the allegations made by Mr. Gogarty involving the
Applicant.
27. It
is submitted on behalf of the Applicant that
(i)
such
interpretation is incorrect, and
(ii)
if it be correct, then the said resolution of the Houses of the Oireachtas so
far as it concerns paragraph A5 is
ultra
vires
the Tribunal of Inquiry (Evidence) Acts 1921 - 1998 inasmuch as it does not
confine the Tribunal’s remit to a definite matter or matters of urgent
public importance.
________________________________________________
(21)
28. With
regard to (i), it is hard to see what alternative interpretation can be placed
on paragraph A5. The words of the paragraph are clear and admit only of the
interpretation placed thereon by the Tribunal.
“In
the event that the Tribunal in the course of its inquiries is made aware of any
Acts associated with the planning process which may in its opinion amount to
corruption or, which involves attempts to influence by threats, or deception,
or inducement, or otherwise to compromise the disinterested performance of
public duties, it shall report on such acts.”
30. By
virtue of such paragraph the Tribunal is obliged to report on any Act
associated with the planning process, of which it becomes aware in the course
of its inquiries, and which in its opinion, may amount to corruption or tend to
compromise the disinterested performance of public duties.
31. It
would have been competent for the two Houses of Parliament to have established
a Tribunal to enquire into “corruption in the planning process in
Ireland”.
This
being so it was clearly competent for them to establish a Tribunal to enquire
into suspected cases of corruption and such other cases as might come to its
attention in the course of its inquiries.
32. Having
regard to the clear wording of paragraph A5, the Court is satisfied that the
Applicant has not established an arguable case that the interpretation of this
________________________________________________
(22)
paragraph
by the Tribunal is incorrect. Indeed no serious alternative interpretation was
suggested by Counsel for the Applicant.
33. On
the basis of the foregoing interpretation it is submitted on behalf of the
Applicant that the resolutions of the Houses of the Oireachtas are
ultra
vires
the Tribunals of Inquiry (Evidence) Acts 1921 - 1998.
34. Section
(1) of the 1921 Act provides that:-
“(1)
Where it has been resolved (whether before or after the commencement of this
Ad) by both Houses of Parliament that it is expedient that a tribunal be
established for inquiring into a definite matter described in the Resolution as
of urgent public importance, and in pursuance of the Resolution a tribunal is
appointed for the purpose either by His Majesty or a Secretary of State, the
instrument by which the tribunal is appointed or any instrument supplemental
thereto may provide that this Act shall apply, and in such case the tribunal
shall have all such powers, rights, and privileges as are vested in the High
Court, or in Scotland the Court of Session, or a judge of either such court, on
the occasion of an action in respect of the following matters:-
(a)
The
enforcing the attendance of witnesses and examining them on oath, affirmation,
or otherwise;
(b)
The
compelling the production of documents;
(c)
Subject
to rules of court, the issuing of a commission or request to examine witnesses
abroad;
________________________________________________
(23)
and
a summons signed by one or more of the members of the tribunal may be
substituted for and shall be equivalent to any formal process capable of being
issued in any action for enforcing the attendance of witnesses and compelling
the production of documents.”
35. As
stated by this Court in
Haughey
& Ors. . v. Mr. Justice Moriarty & Ors.
[eIWLR_1056]
“The
decision as to whether the machinery of the 1921 Act should be availed of to
inquire into matters properly so described is left under the legislation to
both Houses of the Oireachtas. This court unanimously held in
Goodman
International and Anor. . v. Hamilton
[1992]
2 IR 542 that a resolution of both Houses giving effect to such a decision was
entitled to the same presumption of constitutionality as Acts of the Oireachtas
and bills upon a reference under Article 26 of the Constitution to the Supreme
Court and that such a presumption derived from the respect shown by one organ
of St ate to another and from the necessary comity between the different organs
of State. It follows that it is no part of the function of the High Court or
this court to review a decision by the Oireachtas to establish an enquiry under
the 1921 Act into matters which are properly described as of ‘urgent
public importance’.”
36. As
appears from the resolution passed by both Houses of the Oireachtas, these
Houses considered matters set forth in paragraphs Alto A5 inclusive to be
“definite
matters of urgent public importance.”
________________________________________________
(24)
37. It
was submitted by counsel on behalf of the Applicant that:-
(a)
the
Tribunal’s construction of A5 would appear sufficiently broad to enable
it to investigate any allegation of corruption associated with the planning
process, irrespective of date and place;
(b)
the
matters thus
investigated
would not be
“definite
matters”
of
urgent public importance as required by Section (1) of the 1921 Act in as much
as the Tribunal would effectively have a roving commission to investigate such
matters of alleged planning corruption as came to its attention and which it
decides to investigate. In these circumstances the Tribunal would effectively
be determining its own terms of Reference.
38. While
it is true that the terms of paragraph A5 are sufficiently broad to enable the
Tribunal to investigate any allegation of corruption associated with the
planning process, irrespective of date or place, such fact does not mean that
such an investigation would not be a matter of definite public importance as
envisaged by the Houses of the Oireachtas.
39. The
said terms of reference do not as submitted by Counsel for the Applicant, give
to the Tribunal a
“roving
commission”
.
Its powers are limited to the investigation of and reporting on acts associated
with the planning process of which it becomes aware during the course of the
inquiries authorised by paragraphs Al to A4 of the Terms of Reference and which
in its opinion amounted to corruption or an attempt to compromise the
disinterested performance of public duties.
________________________________________________
(25)
40. These
are definite matters of urgent public importance within the contemplation of
the Houses of the Oireachtas when the relevant resolutions were passed.
41. Consequently,
the Court is satisfied that the Applicant has not established an arguable case
that the terms of reference as interpreted by the Tribunal are
ultra
vires
the provisions of the 1921 Act, as amended.
42. The
Applicant’s second submission is that the Tribunal, while conducting its
preliminary investigations in private, was obliged to follow fair procedures
and should therefore have given the Applicant an opportunity to be heard in
relation to the sufficiency of the evidence against him before deciding to
proceed to a public inquiry.
43. The
Applicant sought support for this submission in an extract from the judgment of
this Court in
Haughey
& Ors. v. Moriarty & Ors
.
[eIWLR_1056]of the unreported judgment.
44. The
Court, in the passage referred to, was speaking of the preliminary private
investigation of the Tribunal and stated that -
“if
these inquiries in this investigation were to be held in public it would be in
breach of fair procedures because many of the matters investigated may prove to
have no substance and investigation thereof in public would unjustifiably
encroach on the constitutional rights of the person or persons affected
thereby”.
________________________________________________
(26)
45. The
Applicant seeks to draw from this passage the conclusion that the Applicant had
a constitutional right not only to see the evidence proposed to be produced
against him but also to have in effect a private hearing on the matter before a
public hearing is commenced.
46. Before
dealing with the submission it is proper to place the passage referred to in
context. The passage quoted appears in a section of the judgment which reads as
follows:-
“A
tribunal of inquiry of this nature involves the following stages:-
1.
A preliminary investigation of the evidence available;
2.
The
determination by the Tribunal of what it considers to be evidence relevant to
the matters into which it is obliged to inquire;
3.
The
service of such evidence on persons likely to be effected thereby;
4.
The
public hearing of witnesses in regard to such evidence, and the
cross-examination of such witnesses by or on behalf of persons effected thereby;
5.
The
preparation of a report and the making of recommendations based on the facts
established at such public hearing.
It
can not be suggested or submitted that the public or any portion thereof are
entitled to be present at this latter stage.
________________________________________________
(27)
Neither
can it be submitted that the public or any portion thereof are entitled to be
present at the preliminary investigation of the evidence for the purposes of
ascertaining whether it is relevant or not.
If
these inquiries in this investigation were to be held in public it would be in
breach of fair procedures because many of the matters investigated may prove to
have no substance and the investigation thereof in public would unjustifiably
encroach on the constitutional rights of the person or persons affected thereby.
The
Court is satisfied that such was not the intention of the legislature and that
the “proceedings of the Tribunal” referred to in the said section
relate merely to the proceedings of the Tribunal where evidence is given on
oath, the witness giving such evidence being subject to cross-examination and
the other matters at public hearing.
The
Court is satisfied that the Tribunal was entitled to conduct this preliminary
investigation in private for the purpose of ascertaining what evidence was
relevant and to enable the Tribunal in due course to serve copies of such
evidence on the Plaintiffs/Appellants which it is obliged to do in order to
enable them to exercise their constitutional right to be present at the hearing
of the Tribunal where such witnesses will give evidence on oath and be liable
to cross-examination.”
________________________________________________
(28)
47. An
inquiry under the Tribunal of Inquiry (Evidence) Act, 1921 is a public inquiry.
The Court in the passage quoted accepted that it is was proper for a Tribunal
to hold preliminary investigations in private. This would enable the Tribunal,
inter
alia
,
to check on the substance of the allegations and in this way would protect the
citizens against having groundless allegations made against them in public. But
the Court was not suggesting that the Tribunal should proceed to a public
inquiry only if there was a prima facie case or a strong case against a
particular citizen. It was suggesting that the allegation should be substantial
in the sense that it warranted a public inquiry. The Tribunal is not obliged to
hold a private inquiry before proceeding with its public inquiry. The
allegations made against the Applicant in this case could be false. At this
stage we simply do not know. But they are grounded on a sworn affidavit. In
these circumstances it appears to this Court that the Tribunal was entitled to
decide that they were of sufficient substance to warrant investigation at a
public inquiry. Indeed it would have been surprising if the Tribunal had
decided otherwise.
48. This
being so this Court cannot see any basis on which it could grant leave to apply
for Judicial Review on this particular ground.
49. The
third ground of appeal in the Applicant’s notice of appeal in the present
case is that the learned High Court Judge erred in law or in fact -
“in
failing to grant leave to apply for Judicial Review in respect of Ground E
(iii) and (iv) of the Applicant’s grounding statement dated 22nd day of
December, 1998, since these grounds are intimately
________________________________________________
(29)
associated
and linked with the fair procedures ground in respect of which the learned High
Court Judge did grant leave”
50. In
the course of his submission to this Court, Counsel for the Applicant said that
if he failed on the second submission before this Court he might have to
consider whether he should proceed with the ground for Judicial Review on which
he had succeeded in the High Court. However that matter is not before this
Court, and this Court does not therefore purport to deal with it.
51. But
this Court is not satisfied, on the basis of the evidence placed before it,
that there are any grounds on which it could be argued that the Tribunal had
either exceeded its jurisdiction or failed to observe fair procedures. In these
circumstances this Court can see no reason for delaying the work of this
important Tribunal which both Houses of the Oireachtas have seen fit to
establish.
52. The
Court will dismiss the appeal and refuse the relief sought by the Applicant.
© 1999 Irish Supreme Court
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