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Lawlor v. Flood [1999] IESC 67 (8th October, 1999)
THE
SUPREME COURT
Hamilton
C.J.
Denham
J.
Barrington
J.
Keane
J.
Murphy
J.
149/99
BETWEEN:
LIAM
LAWLOR
Applicant/Respondent
and
MR.
JUSTICE FEARGUS FLOOD, THE SOLE MEMBER
OF
THE TRIBUNAL OF INQUIRY into CERTAIN
PLANNING
MATTERS AND PAYMENT
Respondent/Appellant
[Judgments
by Hamilton C.J., Denham and Murphy JJ.; Barrington and Keane JJ. agreed with
Hamilton C.J.]
Judgment
of Hamilton C.J. handed down on the 8th day of October 1999
1. The
Respondent herein is Mr. Liam Lawlor T.D. who is and was at all relevant times
a member of Dáil Éireann and will be hereinafter referred to as
Mr. Lawlor.
2. The
Appellant herein is the Hon. Mr. Justice Feargus Flood who is and was at all
relevant times the Sole Member of the Tribunal of Inquiry into
________________________________________________
(2)
3. Certain
Planning Matters and Payments having been appointed thereto by Instrument of
the Minister for the Environment and Local Government dated the 4th day of
November 1997 as amended by further Instrument dated the 15th day of July, 1998
and who will hereafter be referred to as the Sole Member.
4. These
Instruments were made in pursuance of Resolutions passed by Dáil
Éireann on the 7th day of October, 1997 and by Seanad Eireann on the 8th
day of October, 1997 and by further Resolutions passed in Dáil
Éireann on the 1st day of July, 1998 and by Seanad Eireann on the 2nd
day of July, 1998 extending the terms of reference of the tribunal.
5. The
terms of reference of the tribunal material to the present appeal are set out
in section A subsection
5
of
the Resolutions passed on the 7th day of October, 1997 and are in the following
terms:-
“In
the event that the tribunal in the course of its inquiries is made aware of any
acts associated with the planning process committed on or after the 20th June,
1985 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, it shall report on such
________________________________________________
(3)
acts
and shall in particular make recommendations as to the effectiveness and
improvement of existing legislation governing corruption in the light of its
inquiries.”
6. In
the course of his conduct of the said Inquiry, the Sole Member, did on the 26th
day of April 1999 make three orders directed to Mr. Lawlor.
7. The
first of such orders was in the following terms:-
“IT
IS ORDERED pursuant to section 4 of the Tribunals of Inquiry (Evidence) Act
1979 that Liam Lawlor TD. of ‘Somerton’, Lucan, County Dublin do
attend at the offices of the Tribunal to answer questions put to him by Counsel
to the Tribunal relating to matters being inquired into by the Tribunal, at a
date and time to be agreed with a Tribunal Solicitor or, in default of such
agreement, at a date and time to be fixed by me (the Sole Member).”
(Hereinafter referred to as ‘the first order’).
8. The
second of the said orders was in the following terms:-
“IT
IS ORDERED that Liam Lawlor TD. of ‘Somerton’, Lucan, County Dublin
do on or before the 10th day of May 1999 furnish
________________________________________________
(4)
to
a Solicitor acting for the Tribunal at the Offices of the Tribunal into Certain
Planning Matters and Payments, State Apartments, Upper Yard, Dublin Castle,
Dublin 2 an affidavit stating the name(s) of any company(s) of which was [sic]
between 1st January 1987 and 31st December 1994 a shareholder or director or in
which he had a beneficial interest and giving details of any such shareholding
or directorship.
(Hereinafter
referred to as ‘the second order’).
The
third of these orders was in the following terms:-
“On
the 26th day of April 1999, the Sole Member further ordered
as
follows:-
IT
IS ORDERED that Liam Lawlor TD. of ‘Somerton’, Lucan, County Dublin
do on or before the 18th day of May 1999 or within such other period as may be
allowed by the Tribunal make discovery of and produce to a Solicitor acting for
the Tribunal at the Offices of the Tribunal into Certain Planning Matters and
Payments, State Apartments, Upper Yard, Dublin Castle, Dublin 2:-
1.
All documents relating to any accounts held by or on behalf or for the benefit
of Mr. Liam Lawlor, whether in his own name or
________________________________________________
(5)
otherwise,
in any bank, building society or other financial institution, either within or
outside the state between the 1st day of January 1987 and the 31st day of
December 1994, including (but not confined to) statements of account,
correspondence, cheque counterfoils, paid and returned cheques, deposit
receipts, withdrawal receipts and deposit books and records.
2.
All documents and records relating to the payment to Mr. Liam Lawlor of any
monies by Arlington Securities plc. and/or Mr. Thomas Gilmartin or by anybody
on their behalf
3.
All documents and records relating to the negotiation of any cheques given to
Mr. Liam Lawlor by or on behalf of the said Arlington Securities plc. and/or
Mr. Thomas Gilmartin.
4.
All documents and records relating to the provision of any services by Mr. Liam
Lawlor to the said Arlington Securities plc. and/or Mr. Thomas Gilmartin
including (but not confined to) contracts, correspondence, memoranda, reports,
advices, minutes of meetings or instructions.”
(Hereinafter
referred to as the ‘third order’).
9. On
the 20th day of May 1990, Counsel on behalf of Mr. Lawlor sought and was
granted leave of the High Court (Kelly J.) to apply by way of an application
for judicial review for the following reliefs:-
________________________________________________
(6)
(a) A
Declaration that he was entitled to be furnished by the Respondent (the Sole
Member) with the text of allegations made against him or statements adverse to
him in sufficient detail to permit him now to address such allegations or
statements to the extent necessary and in particular to make detailed
submissions in respect of any order contemplated by the learned Respondent
(Sole Member);
(b) An
Order quashing the first order referred to above;
(c) An
Order quashing the third order referred to above;
(d) An
Order quashing the second order referred to above.
10. The
grounds upon which relief was sought were as set forth in the Statement of
Grounds dated the 19th day of May 1999 as follows:-
“(i)
The
Order referred to at Paragraph (2) above of the learned Respondent was made
without or in excess of jurisdiction.
(ii) The
Order referred to at Paragraph (3) above of the learned Respondent was made
without or in excess of jurisdiction.
________________________________________________
(7)
(iii) The
Order referred to at Paragraph (4) above of the learned Respondent was made
without or in excess of jurisdiction having regard to its scope.
(iv) If
which is denied the learned Respondent had jurisdiction to make the said
several Orders or any of them, the said Orders were made other than in due
course of law and without regard to the natural and constitutional rights of
the Applicant in that they were made without furnishing to the Applicant any or
any reasonable detail of the factual basis said to require them to be made so
that the Applicant could address those matters as to the necessity for the
making of the said Orders or any of them and as to their scope.
(v) If
which is denied, the learned Respondent had jurisdiction to make an Order of
the nature of the Order referred to at paragraph (2) above made the 26th day of
April, 1999, he had no jurisdiction to provide that the Applicant answer
questions or provide information other than to and in the presence of the
learned Respondent as sole member of a Tribunal of Inquiry.”
11. In
accordance with the provisions of the relevant Rules of the Superior Courts the
Sole Member did on the 31st day of May, 1999 file a Statement of
________________________________________________
(8)
12. Grounds
of Opposition, which statement was verified by the affidavit of Máire
Anne Howard sworn on the 31st day of May, 1999.
13. The
said grounds included the following, which appear to be relevant to this appeal,
“1.
The
decision of the Respondent made on the 26th day of April 1999 pursuant to
Section 4 of the Tribunals of Inquiry (Evidence) Act, 1979 that the Applicant
herein do attend at the offices of the Tribunal to answer questions put to him
by Counsel to the Tribunal relating to matters being inquired into by the
Tribunal was:
(a) Intra
Vires the provisions of the Section 1(1 )(a)(a) of the Tribunals of Inquiry
(Evidence) Act 1921 as adapted and amended, and/or
(b) Intra
vires the provisions of Order 39 Rule 4 of the Rules of the Superior Courts
and/or
(c) Intra
vires the provisions of Section 4 of the Tribunals of Inquiry (Evidence) Act
1979.
2. The
decision of the Respondent made on the 26th day of April 1999 that the
Applicant herein do on or before the 10th May 1999 furnish to a Solicitor
acting for the Tribunal at the offices of the Tribunal, an
________________________________________________
(9)
affidavit
stating the name(s) of any company(s) of which he was between 1 st of January
1997 and 31st December 1994 a shareholder or director or in which he had a
beneficial interest and giving details of any such shareholding or directorship
was:
(a) Intra
vires the provisions of Section 1(1 )(b) of the Tribunals of Inquiry (Evidence)
Act 1921 as adapted and amended and/or
3. The
decision of the Respondent made on the 26th April 1999 that the Applicant
herein do on or before the 18th day of May 1999 or within such other period as
may be allowed by the Tribunal make discovery of and produce to a Solicitor
acting for the Tribunal the categories of documents set out in paragraphs 1 to
4 of that Order was:-
(a) Intra
vires the provisions of Section 1(1 )(b) of the Tribunals of Inquiry (Evidence)
Act 1921 as adapted and amended and/or
________________________________________________
(10)
4. A
Tribunal of Inquiry established pursuant to the Tribunal of Inquiry (Evidence)
Acts 1921 to 1997 may devise it’s [sic] own mode of practice and
procedure in relation to its inquiry work.
5. A
Tribunal of Inquiry established pursuant to the Tribunals of Inquiry
(Evidences) Acts 1921 to 1997 is not required to adopt the lis inter partes
procedure in it’s [sic] confidential preliminary investigations.
10. The
Respondent decided that it was necessary to make the Orders in suit for the
purpose of it’s [sic] functions and for the reasons set out in the
Respondents [sic] Ruling dated the 26th day of April 1999.”
14. The
issue was heard by the High Court (Kearns J.) on the 8th, 9th, 10th, 11th,
15th, 16th, 17th and 18th days of June 1999 and judgment was delivered on the
2nd July 1999.
________________________________________________
(11)
15. The
learned trial judge for the reasons set forth in his judgment made Orders
(i) quashing
the Order dated the 26th day of April 1999 requiring Mr. Lawlor to attend at
the offices of the Tribunal and to answer questions put to him by Counsel to
the Tribunal relating to matters being inquired into by the Tribunal;
(‘the first order’)
(ii) quashing
the Order dated the 26th day of April 1999 directing Mr. Lawlor to furnish to a
Solicitor acting for the Tribunal on or before the 10th day of May 1999 an
affidavit stating the name(s) of any company(s) of which he was between the 1st
day of January 1987 and the 31st day of December 1994 a shareholder or director
or in which he had a beneficial interest and giving details of any such
shareholding or directorship. (‘the second order’)
16. The
learned trial judge refused the relief sought by Mr. Lawlor in respect of the
third order and there is no appeal against such refusal.
17. The
learned trial judge held that the orders which he had ordered to be quashed
were made by the Sole Member in excess of the jurisdiction conferred on him by
Section 4 of the Tribunals (Evidence) (Amendment) Act 1979 (hereinafter
referred to as the 1979 Act), which said section provides that
________________________________________________
(12)
“A
Tribunal may make such orders as it considers necessary for the purposes of its
functions, and shall have, in relation to their making, all such powers, rights
and privileges as are vested in the High Court or a judge of that Court in
respect of the making of orders.
In
the course of his judgment, the learned trial judge, having reviewed the
submissions made by both parties and the authorities referred to, stated, in
relation to the first order, that
“In
my view, Section 4 is to be construed as entitling a Tribunal, within its terms
of reference, to make such Orders as it considers necessary for the performance
of its functions. In so doing, they have the powers of the High Court,
including the inherent powers of that Court, but they do not have powers,
rights or privileges greater than those of the High Court. The power contended
for on behalf of the Respondent would require the enactment of legislation for
that purpose.
In
relation to the second order, the learned trial judge stated:-
________________________________________________
(13)
“In
the absence of a clear statutory provision, it seems to me that I should quash
this Order also for want of jurisdiction.”
18. The
learned trial judge quashed this latter order on an alternative ground which
had been submitted on behalf of Mr Lawlor
viz,
that
before he should be obliged to swear an affidavit of the nature directed he
must be afforded what the learned trial judge described as his
‘Re
Haughey rights’,
which
rights were denied him in this particular case.
19. This
latter ground only arises for consideration by this Court if the Court were to
allow the Sole member’s appeal in respect of the jurisdiction issue.
20. The
Sole Member has appealed to this Court against the judgment delivered and Order
made by the High Court quashing the aforesaid Orders made by him on the 26th
day of April 1999 and, in particular, the finding that he had made the said
Orders in excess of the jurisdiction conferred on him by Section 4 of the 1979
Act.
21. The
facts, including the correspondence between the Solicitor to the Tribunal and
Mr Lawlor’s Solicitor and the relevant rulings by the Sole Member are set
forth in detail, in the judgment of the learned trial judge.
________________________________________________
(14)
22. It
is not necessary to set forth such facts in the course of this judgment
because, as appears from the Notice of Appeal served on behalf of the Sole
Member, the fundamental issue for determination by this Court relates to the
jurisdiction of the Sole Member to make the aforesaid orders and the resolution
of this issue depends on the interpretation of Section 4 of the Act of 1979.
The
Legislative Framework
23. In
order to interpret properly the effect of the terms of the said Section 4, the
said section must be construed in the light of the entire of the Act of 1979
and the legislative framework of which it forms part
viz,
the
Act of 1921, the Act of 1979 and the Act of 1997.
24. As
stated by Walsh J. in
East Donegal Co-operative .v. Attorney General
[1970] IR 317 at page 341 of the Report:-
“The
words of the Act, and in particular the general words, cannot be read in
isolation and their content is to be derived from their context. Therefore,
words or phrases which at first sight appear to be wide and general may be cut
down in their construction when examined against the objects of the Act which
are to be derived from a study of the Act as a whole including the long
title.”
________________________________________________
(15)
25. The
statutory powers which are found in these Acts are only granted to and vested
in a Tribunal which has been appointed by a Minister pursuant to a resolution
by both Houses of the Oireachtas that it is expedient that a tribunal be
established for enquiring into a definite matter described in the Resolution as
of urgent public importance and the instrument of appointment provides that the
provisions of the Acts apply.
26. In
the course of the written submissions made on his behalf, the Sole Member has
stated:-
“The
powers given to Tribunals of Inquiry for their purposes are those contained in
Section 1 of the Tribunals of Inquiry (Evidence) Act 1921 and
Section 4 of the
Tribunals of Inquiry (Evidence) (Amendment) Act 1979. Tribunals of Inquiry do
not have any powers other than those contained in these two sections.
In
relation however to the two orders which are the subject of the Appeal herein,
it is clear from the judgment of the learned trial judge that these orders were
made in pursuance of, and reliance was placed solely on, the jurisdiction
conferred by
Section 4 of the 1979 Act.
________________________________________________
(16)
The
learned trial judge stated:-
“In
the grounds of opposition to the Judicial Review, it was contended that the
making of the Order was intra vires the provisions of
Section 1(1) of the 1921
Act as amended and/or intra vires the provisions of Order 39 Rule 4 of the
Rules of the Superior Courts.
27. Though
this be so, the terms of Section 4 must be considered and interpreted in the
light of the provisions of the 1921 Act, the other relevant provisions of the
1979 Act because the 1979 Act was, and expressed to be,
“An
Act to amend the Tribunals of Inquiry (Evidence) Act, 1921”
and
the Act of 1997, which was also so described.
28. The
provisions of Section 4 of the Act of 1979 cannot be construed in isolation.
________________________________________________
(17)
29. As
stated by Henchy J. in the course of his judgment in
The
State (Lynch) .v. Cooney
[1982] IR 337 at page 380:-
“It
is to be presumed that, when it conferred the power, Parliament intended the
power to be exercised only in a manner that would be in conformity with the
Constitution and within the limitations of the power as they are to be gathered
from the statutory scheme or design.”
30. Consequently
it is necessary to consider the statutory scheme or design in relation to
Tribunals of Inquiry of which Section 4 is part and the background against
which such scheme was introduced by the Legislature.
31. This
background is dealt with briefly in the report of the Royal Commission on
Tribunals of Inquiry 1966 (hereinafter referred to as the Salmon Commission)
under the Chairmanship of the Rt. Hon. Lord Justice Salmon which reported at
paragraphs 12 and 13 as follows:-
“Even
as long ago as 1888 the shortcomings of Select Parliamentary Committees of
Inquiry had been recognised. In that year, serious allegations had been made
against a prominent
________________________________________________
(18)
Parliamentarian
and leader of the Irish Nationalists, Charles Stewart Parnell and others.
Rather than refer the matter for investigation to a Select Parliamentary
Committee, a Special Commission with special powers was set up by the Special
Commission Act 1888. (51 & 52 Vict. Chap. 35)
When in 1921 grave allegations were made by a Member of Parliament against
officials in the Ministry of Munitions, the favourable impression made by the
Parnell Commission and the unpleasant flavour left behind by the Marconi
Committee of Inquiry were remembered It was felt that the investigation by
Parliamentary Committees of Inquiry of alleged public misconduct was entirely
discredited, and that accordingly new machinery should be created more
appropriate to deal not only with the current matter but with any similar
matters which might arise in the future. Thus the Tribunals of Inquiry
(Evidence) Act, 1921 was born. The widely differing nature of the circumstances
in which the statute would be invoked in the future could not all be foreseen
and as a matter of necessity the passage of the Bill through Parliament was
somewhat hurried. As a result, there are certain omissions and shortcomings in
the Act of 1921 which are dealt with later. The Act did, however, bring into
existence a method of
________________________________________________
(19)
inquiry
into allegations of public misconduct far superior to the method which had
hitherto been in vogue. The Act provides that if both Houses of Parliament
resolve 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 such resolution a Tribunal is appointed either by the Crown
or by a Secretary of State, then such a Tribunal for certain purposes shall
have all the powers, rights, and privileges that are vested in the High Court.
It can enforce the attendance of witnesses whom it may examine under oath, and
it may compel the production of documents. If any person summoned as a witness
fails to attend, or if he does attend refuses to answer any question to which
the Tribunal may legally require an answer or fails to produce any document in
his power or control which the Tribunal legally requires him to produce or does
anything which would constitute contempt of court in a court of law, then the
Chairman may certify the offence to the High Court which may inquire into the
facts and hear evidence, including any statements that may be offered in
defence. If the witness is found guilty he may be punished in the same manner
as if he had committed a contempt of court. A witness before the Tribunal has
the same privileges and
________________________________________________
(20)
immunities
as in a court of law. The Tribunal may authorise any person appearing before it
who appears to it to be interested to be represented by solicitor or counsel or
otherwise. It is expressly provided that the public are to be admitted to all
hearings unless the Tribunal finds that this is against the public interest.
The Act of 1921 contains no provisions concerning the procedure to be followed
by the Tribunal, nor is the Tribunal subject to the Tribunals and Inquiries
Act, 1958. Nor does the Act of 1921 confer any immunity upon members of the
Tribunal for what they may say in the course of the inquiry or in their report,
nor upon solicitors or counsel for what they say before the Tribunal. Nor is
there any provision (as there was in the Act of 1888) that answers given by a
witness cannot be used against him in any criminal or civil proceedings.
Section
1(1) of the Tribunals of Inquiry (Evidence) Act 1921 (hereinafter referred to
as the 1921 Act) provides as follows:-
“1.
(1)
Where it has been resolved (whether before or after the commencement of this
Act) 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
________________________________________________
(21)
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;
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.
The
powers granted to such an Inquiry by Section 1(1) of the 1921 Act were
________________________________________________
(22)
“[A]ll
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;”
32. It
was only in respect of these matters that the Tribunal was vested with the
powers, rights and privileges of the High Court.
33. Section
1(2) of the Act of 1921 has been repealed and replaced by Section 3 of the Act
of 1979.
34. Section
1(3) of the Act of 1921 provides that:
“A
witness before any such tribunal shall be entitled to the same immunities and
privileges as f he were a witness before the High Court or the Court of
Session.”
________________________________________________
(23)
35. This
immunity was extended by the provisions of Section 2 by the Tribunals of
Inquiry (Evidence) (Amendment) Act, 1997 which provided that:-
“2.
Section 1 of the Principal Act is hereby amended by the insertion after
subsection (3) of the following subsection:
(4) A
person who produces or sends a document to any such tribunal pursuant to an
order of that tribunal shall be entitled to the same immunities and privileges
as if he or she were a witness before the High Court.”
“Where
a person fails or refuses to comply with or disobeys an order of a tribunal,
the High Court may, on application to it in a summary manner in that behalf by
the tribunal, order the person to comply with the order, and make such other
order as it considers necessary and just to enable the order to have full
effect.”
________________________________________________
(24)
“The
Principal Act is hereby amended by the substitution of the following
subsections for subsection (2) of
section 1:
(2) If
a person -
(a) on
being duly summoned as a witness before a tribunal, without just cause or
excuse disobeys the summons, or
(b) being
in attendance as a witness refuses to take an oath or to make an affirmation
when legally required by the tribunal to do so, or to produce any documents
(which word shall be construed in this subsection and in subsection (1) of this
section as including things) in his power or control legally required by the
tribunal to be produced by him, or to answer any question to which the tribunal
may legally require an answer, or
(c) wilfully
gives evidence to a tribunal which is material to the inquiry to which the
tribunal relates and which he knows to be false or does not believe to be true,
or
(d) by
act or omission, obstructs or hinders the tribunal in the performance of its
functions, or
(e) fails,
neglects or refuses to comply with the provisions of an order made by the
tribunal, or
________________________________________________
(25)
(f) does
or omits to do any other thing and if such doing or omission would, if the
tribunal had been the High Court, have been contempt of that Court, the person
shall be guilty of an offence.
(2A)
(a)
A
person guilty of an offence under this section shall be liable on conviction on
indictment to a fine not exceeding £10,000 or, at the discretion of the
court, to imprisonment for a term not exceeding 2 years or to both such fine
and such imprisonment.
(b) A
justice of the District Court shall have jurisdiction to try summarily an
offence under this section if-
(i) the
justice is of opinion that the facts proved or alleged against a defendant
charged with such an offence constitute a minor offence fit to be tried
summarily,
(ii) the
Director of Public Prosecutions consents, and (iii) the defendant (on being
informed by the justice of his right to be tried by a jury) does not object to
being tried summarily,
________________________________________________
(26)
and,
upon conviction under this paragraph, the said defendant shall be liable to a
fine not exceeding £500 or, at the discretion of the court, to
imprisonment for a term not exceeding 12 months or to both such fine and such
imprisonment.
(c)
Section
13 of the
Criminal Procedure Act, 1967, shall apply in relation to an offence
under this section as if in lieu of the penalties specified in subsection (3)
of that section there were spec fled therein the penalties provided for by
paragraph (b) of this subsection, and the reference in
subsection 2(a) of that
section to the penalties provided for in subsection (3) of that section shall
be construed accordingly.”
Section
5
of
the Act of 1979 provides that
“A
statement or admission made by a person before a tribunal or when being
examined in pursuance of a commission or request issued under subsection (1) of
section 1 of the Principal Act shall not be admissible as evidence against that
person in any criminal proceedings (other than in proceedings in relation to an
offence under subsection (2)(c) (inserted by
this Act) of that section) and
________________________________________________
(27)
subsection
(3) of that section shall be construed and have effect accordingly.”
36. The
provisions set forth herein constitute the statutory framework within which the
provisions of Section 4 of the 1979 Act must be construed.
Nature,
effect and possible consequences accruing from breach of the said orders.
37. It
is also relevant to consider the nature and effect of the said orders and the
possible consequences accruing to Mr Lawlor in the event of a failure by him to
comply with the terms of the said orders, the making of which is claimed by the
Sole Member to be within the jurisdiction conferred on him by Section 4 of the
Act of 1979, for the purpose of considering whether they were of such a nature
which the Legislature intended could be made by the Sole Member.
The
First Order
38. This
order directs Mr Lawlor to attend at the offices of the Tribunal to answer
questions put to him by Counsel to the Tribunal relating to matters being
inquired into by the Tribunal.
________________________________________________
(28)
39. By
virtue of such order he is required to not only attend at the said offices but
to answer questions put to him by Counsel to the Tribunal relating to the
matters being inquired into by the Tribunal.
40. In
the event of his failure to attend as directed or to answer the questions put
to him by Counsel to the Tribunal, Mr Lawlor is, if the said order was made
within jurisdiction, guilty of an offence contrary to Section 2(e) and possibly
2(d) of the Act of 1921 as amended by the Act of 1979 and liable on conviction
thereof on indictment to a fine not exceeding £10,000 or at the discretion
of the Court, to imprisonment for a term not exceeding two years or to both
such fine and such imprisonment or upon conviction by the District Court under
Section 2(b) to a fine not exceeding £500 or, at the discretion of the
Court, to imprisonment for a term not exceeding 12 months or to both such fine
and such imprisonment.
41. In
addition, the Sole Member would be entitled, pursuant to the provisions of
Section 4 of the 1997 Act, to apply in a summary manner to the High Court for
an order directing Mr Lawlor to comply with the said Order and Mr Lawlor would
be subject to such orders as the High Court considered necessary and just to
enable the order to have full effect.
________________________________________________
(29)
42. If,
in pursuance of the said order, Mr Lawlor were to attend and answer the
questions put to him by Counsel to the Tribunal, he would not be entitled to
the immunities and privileges to which he would be entitled pursuant to the
provisions of Section 1(3) of the Act of 1921 and Section
5
of
the Act of 1979 because they relate only to a “witness before any such
tribunal” and to statements or admissions “before a tribunal”.
The
Second Order
43. This
order directs that Mr Lawlor do, on or before the 10th day of May, 1999,
furnish to a Solicitor acting for the Tribunal at the office of the Tribunal an
affidavit stating the name(s) of any company(s) of which he was between 1st
January, 1987 and 31st December, 1994 a shareholder or director or in which he
had a beneficial interest and giving details of any such shareholding or
directorship.
44. This
constitutes an order made by the Tribunal and, if made within jurisdiction,
failure to comply therewith would render Mr Lawlor guilty of an offence
contrary to Section 2(e) and possibly (d) of the Act of 1921 as amended and if
convicted liable to the consequences as set out above in respect of the first
order.
________________________________________________
(30)
Functions
of the Tribunal of Inquiry
45. It
is necessary to consider briefly the functions of the Sole Member as the orders
sought to be quashed in these proceedings are alleged by him to have been
necessary for the performance of his functions.
46. His
function is to investigate the matters referred to in the Resolutions passed by
both Houses of the Oireachtas, to make findings in respect thereof and report
these findings to the Minister for the Environment and Local Government.
47. As
stated by this Court in
Haughey
. v. Moriarty J
.
(28th July 1998)
[eIWLR_1056]:-
“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 [sic] thereby,
________________________________________________
(31)
4. The
public hearing [sic] of witnesses in regard to such evidence, and the
cross-examination of such witnesses by or on behalf of persons effected [sic]
thereby;
5. The
preparation of a report and the making of recommendations based on the facts
established at such public hearing.”
48. The
Report of the Salmon Commission stated at page 40, paragraph 123:-
“We
have no doubt that it is necessary that some power should exist, to be
exercised only in the last resort, for the purpose of compelling persons to
give evidence and preventing them from defying the Tribunal. This power is
contained in Section (1) (2) of
the Act of 1921.”
49. It
also stated at paragraphs 27 and 28 that:-
“The
exceptional inquisitorial powers conferred upon a Tribunal of Inquiry under the
Act of 1921 necessarily expose the ordinary citizen to the risk of having
aspects of his private life uncovered which would otherwise remain private, and
to the risk of having baseless allegations made against him. This may cause
________________________________________________
(32)
distress
and injury to reputation. For these reasons, we are strongly of the opinion
that the inquisitorial machinery set up under
the Act of 1921 should never be
used for matters of local or minor public importance but always be confined to
matters of vital public importance concerning which there is something in the
nature of a nation-wide crisis of confidence. In such cases we consider that no
other method of investigation would be adequate.
Normally persons cannot be brought before a tribunal and questioned save in
civil or criminal proceedings. Such proceedings are hedged around by long
standing and effective safeguards to protect the individual. The inquisitorial
procedure is alien to the concept of justice generally accepted in the United
Kingdom. There are, however, exceptional cases in which such procedures must be
used to preserve the purity and integrity of our public life without which a
successful democracy is impossible. It is essential that on the very rare
occasions when crises of public confidence occur, the evil, Wit exists, shall
be exposed so that it may be rooted out; or Wit does not exist, the public
shall be satisfied that in reality there is no substance in the prevalent
rumours and suspicions by which they have been disturbed We are satisfied that
this would be difficult if not impossible without
________________________________________________
(33)
public
investigation by an inquisitorial Tribunal possessing the powers conferred by
the Act of 1921. Such a Tribunal is appointed by Parliament to inquire and
report. The task of inquiring cannot be delegated by the Tribunal for it is the
Tribunal which is appointed to inquire as well as to report. The public reposes
its confidence not in some other body or person but in the Tribunal to make and
direct all the necessary searching investigations and to produce the witnesses
in order to arrive at the truth. It is only thus that public confidence can be
fully restored.”
50. In
this country, the powers of such tribunals were extended by the provisions of
Section 4 of the Act of 1979.
51. The
long title to the 1921 Act states that it is “An Act to make provision
with respect to the taking of evidence before and the procedure and powers of
certain Tribunals of Inquiry.”
52. Though
the powers granted therein relate only to those set forth at (a), (b) and (c)
of Section 1(1) thereof, they are manifestly limited to those vested in the
High Court or the Court of Sessions in respect of the said matters.
________________________________________________
(34)
53. The
Act of 1979 in its long title is described as “an Act to amend the
Tribunals of Inquiry (Evidence) Act, 1921.”
54. While
the Act of 1921 (Section 1(1)) was restricted to the matters referred to at
(a), (b) and (c), Section 4 of the Act of 1979 extended the powers of the
Tribunal by providing that
“a
Tribunal may make such orders as it considers necessary for the purposes of its
functions.”
55. This
section, however, continued;
“...
and it shall have, in relation to their making, all such powers, rights and
privileges as are vested in the High Court or a judge of that Court in respect
of the making of orders.”
56. It
is conceded on behalf of the Sole Member that Tribunals of Inquiry do not have
any powers other than those contained in Section 1 of the Act of 1921 and
Section 4 of the Act of 1979 but it is submitted on his behalf that;
“In
respect of the two orders made pursuant to Section 4 of the Tribunals of
Inquiry (Evidence) (Amendment) Act, 1979 (‘the first order and the second
order)
________________________________________________
(35)
(a) The
orders were, as a matter of construction, permissible under the section
(b) the
orders were made for the purposes of the Tribunal’s functions as required
by the section
(c) the
test of necessity contained in the section itself was met.
(d) In
respect of the Sole Member ‘s opinion in which he concluded that it was
necessary, for the purposes of his functions, to make the said orders, the
criteria set out in
The
(State) Lynch -v- Cooney
[1982]
IR 337 were fully complied with in that this opinion was:-
(i) bona
fide held and
(ii)
factually sustainable and
(iii)
not unreasonable
(e) the
orders were made within the Tribunal’s jurisdiction and do not contain
any errors on their face.”
57. The
submissions made at (b), (c) and (d) above only become relevant, if the Sole
Member succeeds on grounds (a) and (e).
58. The
Sole Member submits that by virtue of the provisions of Section 4 of the 1979
Act, he is entitled to make any orders which he considers necessary
________________________________________________
(36)
for
the purposes of his functions including orders which could not be made by the
High Court, orders the breach of which would carry criminal sanctions and
orders which, in effect, deprive the person to whom they are directed of the
immunities and privileges provided by Section 1(3) of the Act of 1921 and by
Section
5
of
the Act of 1979.
59. It
is submitted on behalf of the Sole Member that the provisions of Section 4 of
the 1979 Act must be divided into two parts
viz,
the
part which provides that
“A
Tribunal may make such orders as it considers necessary for the purposes of its
functions”
and
the part which provides that
“it
shall have in relation to their making, all such powers, rights and privileges
as are vested in the High Court or a judge of that Court in respect of the
making of orders
“;
that the powers given to the tribunal by the first part are not restricted in
any way by the provisions of the second part of the section to powers vested in
the High Court or a judge of that Court; that there is no basis for the
proposition advanced by Counsel for Mr Lawlor, and accepted by the learned
Trial Judge, that the second part of the section in some way limits the extent
of the powers created by the first part of the section and that the only
limitation on the powers of the Sole Member to make orders under this section
is that they be considered by him to be necessary
‘for
the purposes of[his]functions”
and
that the criteria set out in
The
State (Lynch) .v. Cooney
[1982] IR 337 be fully
________________________________________________
(37)
complied
with; and that the power to compel a person to attend and answer questions put
to him or her by Counsel to the Tribunal is analogous to the powers conferred
on an inspector appointed in accordance with the provisions of the
Companies
Act, 1990 and in particular
Section 10 and
19 thereof.
60. With
regard to this latter submission, it is only necessary to point out that such
powers are express statutory powers and the situation in regard thereto is
significantly different to the situation in the instant case and does not
provide any assistance to the interpretation of Section 4 of the Act of 1979.
Statutory
Interpretation
61. In
the course of his judgment the learned trial judge stated:-
“The
general principles which should inform the Court’s approach are set out in
East
Donegal Co-operative Livestock Mart Limited & Ors. . v. Attorney General
[1970] IR 317 and
Howard
v. Commissioners of Public Works
[1993] ILRM 665.”
________________________________________________
(38)
In
Howard
at
page 690 Blayney J. adopted the following passage from
Craies
on Statute Law
(7th Edition 1971) at p.
65:-
“The
cardinal rule for the construction of Acts of Parliament is that they should be
construed according to the intention expressed in the Acts themselves. If the
words of the statute are themselves precise and unambiguous, then no more can
be necessary than to expound those words in their ordinary and natural sense.
The words themselves alone do in such a case best declare the intention of the
law giver. The Tribunal that has to construe an Act of a legislature, or indeed
any other document, has to determine the intention as expressed by the words
used. And in order to understand these words it is natural to enquire what is
the subject matter with respect to which they are used and the object in
view.”
62. At
page 693, Blayney J. stated:-
“It
was also submitted that it would be an absurd situation if the commissioners
had to comply with
section 84 and also obtain planning permission,
but
where, as here, the provisions of the
________________________________________________
(39)
sections
are quite clear
(my emphasis) the Court is obliged to give effect to them even f the effect of
doing so may not appear to be entirely reasonable.
Where,
by the use of clear and unequivocal language capable of only one meaning,
anything is enacted by the legislature, it must be enforced however harsh or
absurd or contrary to common sense the result may be. The interpretation of a
statute is not to be collected from any notions which may be entrained by the
Court as to what is just and expedient: words are not to be construed, contrary
to their meaning, as embracing or excluding cases merely because no good reason
appears why they should not be embraced or excluded The duty of the Court is to
expound the law as it stands, and to ‘leave the remedy (if one be
resolved upon) to others’.
Maxwell
on the Interpretation of Statutes
at p. 29.”
63. The
words of the Section relied on by the Sole Member are wide and general but as
stated by Walsh J. in the
East
Donegal
case
they may be cut down in their construction when examined against the objects of
the Act, and the powers granted thereby must be within the limitations of the
power as they
________________________________________________
(40)
are
to be gathered from the statutory scheme or design (Henchy J. in
Lynch
.v. Cooney
).
Objectives
of the Acts of 1921 - 1998
64. As
appears from the long title to the Act of 1921, its objective was to make
provision with respect to the taking of evidence before and the procedure and
powers of certain Tribunals of Inquiry.
65. It
is clear from an examination of the provisions of the Act of 1921 that, having
regard to the inquisitorial nature of Tribunals of Inquiry, the legislature was
concerned not only to specify in detail the powers to be given to the Tribunals
of Inquiry in order to enable them to perform their functions but also to
ensure that witnesses before such tribunals should be granted certain
privileges and immunities.
66. The
powers granted to the Tribunal by the Act of 1921 were limited to those set
forth at 1(1) (a), (b) and (c) of the 1921 Act and the powers granted in
relation thereto were such powers, rights and privileges as were vested in the
High Court on the occasion of an action and the immunities and privileges
granted to a witness before a Tribunal were those which he would enjoy if he
were a witness before the High Court.
________________________________________________
(41)
67. Such
powers as were granted to the Tribunal were limited to the powers vested in the
High Court
on
the occasion of an action
and related only to the enforcement of the attendance of witnesses, their
examination on oath, affirmation or otherwise and the compelling of the
production of documents. It was clearly the intention of the Legislature, and
so provided by the Act of 1921, that the powers given to the Tribunal were
limited to, and did not exceed, the powers vested in the High Court on the
occasion of an action.
68. The
Tribunal’s powers were extended by Section 4 of the Act of 1979, the
first part of which gave to the Tribunal the power to make
‘such
orders as it considers necessary for the purposes of its functions’.
69. If
the submissions made on behalf of the Sole Member are correct, the effect of
the Section is to give to the Sole Member wide and sweeping powers fettered
only by the restriction that they are considered by him to be necessary for the
purpose of his functions, and to give to him powers which are not vested in the
High Court or any judge thereof.
70. The
Act of 1979 did not purport in any way to amend the provisions of Section 1(1)
of the Act of 1921. If the interpretation of Section 4 of the Act of 1979
contended for by the Sole Member is the correct one, this would lead to a
________________________________________________
(42)
situation
where in respect of the important powers vested in him by
Section 1(1) of the
Act of 1921 in regard to enforcing the attendance of witnesses and examining
them on oath or otherwise, compelling the production of documents and the
issuing of a commission or request to examine witnesses abroad, he would be
limited to the powers vested in the High Court to make orders in respect
thereof but in respect of other orders, he would not be so limited or in the
alternative, that the restriction on his powers contained in the provisions of
Section 1(1) of
the Act of 1921 would be removed and they would no longer be
limited to those vested in the High Court.
71. If
the Legislature had intended to so fundamentally alter the nature of the powers
given to the Tribunal it would, or should, have so stated in clear and
unambiguous terms.
72. It
did not do so but provided in relation to an order permitted by Section 4 that
“it
shall have, in relation to their making, all such powers, rights and privileges
as are vested in the High Court or a judge of that Court in respect of the
making of orders”
________________________________________________
(43)
73. This
Section must be interpreted as a whole and in the context of the relevant
legislation and as so interpreted cannot be interpreted as giving to a tribunal
powers in excess of those vested in the High Court in the course of an action.
74. Two
paragraphs in the judgments of the Supreme Court in
Goodman
International . v. Mr. Justice Hamilton
[1992]
2 IR 542 appear to emphasise the limited scope of the powers conferred on the
tribunal by Section 4 of the 1979 Act. The first passage appears at page 601 of
the judgment of Hederman J. and reads as follows:-
“Reference
was made to certain sections of
the Act of 1979 as indicating that this
Tribunal was administering justice. In particular, reference was made to
Section 4 which provides:-
‘A
tribunal may make such orders as it considers necessary for the purpose of its
function, and it shall have, in relation to their making, all such powers,
rights and privileges as are vested in the High Court in respect of the making
of orders’.”
________________________________________________
(44)
75. The
second passage appears at page 605 in the judgment of McCarthy J. and reads as
follows:-
“Section
4 authorises a tribunal to make such orders as it considers necessary
‘for the purposes of its functions”. The purposes of its functions
are to carry out the remit of Parliament. This may involve the issuing of
witness summonses in accordance with
s. 1, sub-s. 1 of
the Act of 1921,
inspection of particular places, the taking of a shorthand note, arrangements
for sittings, the printing of its report and so on.
The
principal powers of the tribunal are to enforce the attendance of witnesses; to
provide for their examination before the tribunal and to compel the production
of documents. It may well be that some citizens may volunteer the supply of
Statements of Evidence or other documents to the tribunal. It may also be that
some witnesses faced with the prospect of a subpoena from the tribunal may
prefer to furnish a statement or documents to the tribunal’s solicitor or
his clerk. The Tribunal may be prepared, initially, to accept from a potential
witness a list or affidavit of documents. All these are matters for arrangement
between the tribunal and the witnesses concerned should it appear practicable.
But when it comes to the formal exercise by the tribunal of its
________________________________________________
(45)
powers
to examine witnesses this must be done by the Tribunal itself and, except as
provided by law, must be done in public.
Apart
from these considerations, the significant powers conferred by the Acts of 1921
and 1979 on the Tribunal are vested in the Tribunal alone. If the submissions
advanced on behalf of the sole member were well founded, it would inevitably
follow that the critically important power of examining witnesses summoned
before it on oath, affirmation or otherwise could be exercised by a person
other than the Tribunal, i.e. counsel acting on its behalf. No doubt it was
envisaged that the Tribunal, for the purpose of carrying out the inquiry
mandated by the resolutions of both houses of parliament, could retain persons
to act on its behalf, both in the gathering of evidence and its adduction
before the Tribunal or to carry out the administrative requirements of the
Tribunal. If, however, the legislature had intended that the Tribunal was
entitled to delegate the exercise of the powers expressly vested in it to
examine witnesses summoned before it to a person other than a member of the
Tribunal, it would have said so in clear and unambiguous language. Far from
that being the case, there is nothing in the language of either the 1921 Act or
the 1979 Act to suggest that such was the intention of the legislature.
________________________________________________
(46)
Finally,
reference should be made to the decision of the High Court (Blayney J.) in
Kiberd
.v. Mr. Justice Hamilton
[1992] 2 IR 257. In that case, two journalists were required to appear before
the Tribunal of Inquiry into the Beef Industry and produce to the tribunal the
material on which certain articles written and published by them were based.
The jurisdiction of the Tribunal to make the orders in question having been
challenged, their validity was upheld in judicial review proceedings by Blayney
J.
“I
do not think there is any real doubt as to how the section should be construed
Its terms are very clear:-
‘A
Tribunal may make such orders as it considers necessary for the purposes of its
functions.’
76. It
is not necessary to consider the second part of the section. The section gives
the Tribunal power to make a certain category of orders, the nature of the
orders being such as it considers necessary for the purposes of its functions.
So, for an order to come within the power given by the section, it must be one
which the Tribunal considers necessary for the purposes of its functions.
________________________________________________
(47)
77. Or
to express it in a different way, whenever the Tribunal considers - which is
the equivalent to saying ‘is of opinion’ - that it is necessary for
the purposes of its functions to make a particular order, it has power to do so
under the section.”
78. Kearns
J. in his judgment in the present case distinguished that decision on two
grounds,
viz,
that
the order made by the Tribunal in that case was in any event one which could
have been made by the High Court and that there was also no question of the
exercise of the power being delegated to any person other than the sole member
of the Tribunal. He was undoubtedly correct in so holding. It should also be
said, however, that, if the learned High Court judge in
Kiberd
.v. Mr. Justice Hamilton
was
intending to convey in the passage cited that the Tribunal had powers more
extensive than those vested in the High Court - and it is not necessarily the
case that he was - then that statement, for the reasons already set out in this
judgment, was clearly erroneous and should not be followed.
79. The
High Court has no jurisdiction to make orders of the nature impugned in this
case. Neither has the Sole Member.
80. I
would dismiss the appeal and affirm the order of the High Court.
________________________________________________
THE
SUPREME COURT
No.
197/ J.R 1999
Appeal
No. 149/99
Hamilton
C.J.
Denham
J.
Barrington
J.
Keane
J.
Murphy
J.
BETWEEN
LIAM
LAWLOR
APPLICANT/RESPONDENT
AND
MR
JUSTICE FEARGUS FLOOD, THE SOLE MEMBER OF THE TRIBUNAL OF INQUIRY INTO CERTAIN
PLANNING MATTERS AND PAYMENTS
RESPONDENT/APPELLANT
Judgment
of Denham J delivered the 8th day of October, 1999.
________________________________________________
-2-
81. The
facts have been set out by the Chief Justice. The Applicant/Respondent
(hereinafter referred to as the Applicant) sought Judicial Review of orders of
the Respondent/Appellant (hereinafter referred to as the Tribunal) which (a)
required the Applicant to attend at the offices of the Tribunal to answer
questions put to him by Counsel to the Tribunal relating to matters being
inquired into by the Tribunal and (b) required the Applicant to furnish to a
solicitor acting for the Tribunal an affidavit stating the names of any
companies of which he was a shareholder or director or in which he had a
beneficial interest between 1st January 1987 and 31st December, 1994 and giving
details of any such shareholding or directorship. Both orders were quashed by
the High Court for want of jurisdiction in light of the wording of Section 4,
Tribunals of Inquiry (Evidence) (Amendment) Act, 1979 (hereinafter referred to
as “the Act”).
82. In
relation to the first order, set out at (a) above, the issue is whether the
Sole Member can be absent when counsel put questions to the Applicant, i.e.
whether the questioning can be delegated to counsel. The order set out at (b)
is self explanatory. Both orders in question would be in excess of the
jurisdiction of a High Court Judge.
83. The
issue on this appeal is whether the Learned High Court Judge erred in
determining that the Tribunal acted in excess of the jurisdiction conferred by
Section 4 of the Act. Thus Section 4 of the Act falls to be construed. There is
no challenge to the validity of Section 4.
84. The
powers of a Tribunal are those conferred by legislation. The fact that the Sole
Member is a Judge of the High Court is not relevant to the determination of his
jurisdiction as Sole Member of the Tribunal of Inquiry. The Tribunal in this
case acquires the jurisdiction in question from Section 4 of the Act. Section 4
creates the jurisdiction in question and states:
________________________________________________
-3-
“A
tribunal may make such orders as it considers necessary for the purposes of its
functions, and it shall have, in relation to their making, all such powers,
rights and privileges as are vested in the High Court or a judge of that Court
in respect of the making of orders.”
85. The
Tribunal submitted that the orders were permissible, that the first part of the
section creates powers for Tribunals of Inquiry to make orders, that the orders
which may be made are left to the discretion of the Tribunal but are limited by
reference to the test of necessity, to the functions set out in the
Tribunal’s terms of reference and are subject to the criteria set out in
The
State (Lynch) v. Cooney
[1982]
IR 337.
The
second part of the section, it was submitted, means that Tribunals which make
such orders have the same powers, rights and privileges as a Judge of the High
Court in respect of the making of the orders. This construction of the section
would give to the Tribunal very wide-ranging powers.
86. On
the other hand the Applicant submitted that the words of the section were not
disjunctive but rather conjunctive and that the second part of the section was
explanatory. This was the finding of the Learned High Court Judge.
87. In
construing Section 4 of the Act the clear and unambiguous meaning of the words
should be sought first of all. Initially the section gives to the Tribunal
power, stating:
“A
tribunal may make such orders as it considers necessary for the purposes of its
functions, ...“
88. This
is a clear statutory placement of power. If the sentence concluded there it
would be giving to the Tribunal extensive powers. However, the section does not
end there. The section continues:
________________________________________________
-4-
“and
it shall have, ...“.
89. The
word “it” in this phrase clearly refers to the Tribunal. So the
Tribunal is given these powers. The section then continues:
“in
relation
to their making,
This
is a clear reference back, by the use of the word “their”, to the
orders enabled under the first part of the section.
There
was legal argument as to whether these words were conjunctive or disjunctive to
the balance of the section. The section concludes;
“...
all such powers, rights and privileges as are vested in the High Court or a
judge of that Court in respect of the making of orders”.
90. This
phrase does not stand on its own. It is dependent on the initial part of the
section. It is explanatory and a limitation of the first part of the section.
This conjunctivity is enhanced by the word “and” in the phrase:
“and
it shall have, in relation to their making, ...“.
91. Thus,
taking the plain meaning of the words, the section gives to the Tribunal the
same powers, rights and privileges as a High Court Judge in relation to the
making of orders, it clarifies the situation.
________________________________________________
-5-
92. The
plain and unambiguous words render the interpretation of Section 4 of the Act
clear. It gives to the Tribunal the procedural powers which may be exercised by
a Judge of the High Court. If the interpretation sought by the Tribunal is
correct it would require that the words:
“...
and it shall have, in relation to their making, all such powers, rights and
privileges as are vested in the High Court or a judge of that Court in respect
of the making of orders”
be
ignored or effectively deleted. If these words were not present the powers
given to the Tribunal would not be so limited. However, the phrases were placed
in the section by the Oireachtas and they do explain and limit the said power
given to the Tribunal to those of a High Court Judge.
93. The
words of the statute are clear and unambiguous. Thus, the ordinary sense of the
words should be applied. The words state clearly that the Tribunal would have
powers, rights and privileges of a High Court Judge in respect of the making of
orders it considers necessary for the purposes of its functions. The Tribunal
is not given powers in excess of a High Court Judge. The powers given to a
Tribunal are those
“as
are vested in the High Court or a judge of that Court”.
94. As
the plain words make clear the meaning and intent of the section it is
unnecessary to apply any further canons of construction. Also, as the section
is not ambiguous, there is no necessity to have regard to external material.
Further, as the section is not addressed to a particular body in a way in which
it could be construed to have a distinct
________________________________________________
-6-
meaning
the ordinary meaning may be applied:
Minister
for Industry and Commerce v. Pim Brothers Ltd.
[19661
IR 154.
95. In
applying the ordinary meaning of the words the Court is enforcing the clear
intention of the legislature. This aspect of statutory construction is an
essential part of the separation of powers. Further, it is an illustration of
appropriate respect by one organ of government to another. The legislature has
passed legislation establishing the Tribunal and given it terms of reference
and a jurisdiction.
96. There
is no necessity to step beyond the literal approach. There is no ambiguity. The
literal interpretation of the section does not give rise to an absurd or
unreasonable interpretation. The purpose of the legislature is not in doubt. If
the legislature had intended to give the extensive powers argued for by the
Tribunal it would have legislated for that separately and clearly.
97. A
Tribunal of Inquiry is established to inquire into a definite matter of urgent
public importance. The stages of the inquiry were set out by the Supreme Court
in
Haughey
v. Moriarty
.
Supreme Court, unreported, 28th July, 1998
[eIWLR_1056],
Pp. 169-170 (No. 103/1998) and affirmed in
Redmond
v. Flood
[1999]
1 ILRM 241
,
p.255-56 [eIWLR_1211]
where
it was stated:
“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 affected thereby;
4. The
public hearings of witnesses in regard to such evidence, and the
cross-examination of such witnesses by or on behalf of persons affected thereby;
5. The
preparation of a report and the making of recommendations based on the facts
established at such public hearing.”
________________________________________________
-7-
98. The
initial stages include steps such as discovery and information given by
consent. If in the initial process information requested is not amenable by
consent to the staff of the Tribunal then it is necessary for the Tribunal to
move on to the next stage, to call witnesses and to inquire into the matter
filly at a sitting of the Tribunal - whether in public or private, as
appropriate. It is not a matter to be delegated by the Tribunal to anybody.
99. The
difference between proceedings in Court (and being a party thereto) and a
Tribunal of Inquiry to which a person is called to give evidence is important.
The Tribunal hearing is not criminal trial, nor is it even a civil trial, nor
is the person a party. The hearing is an inquiry to which the person is a
witness.
100. The
fact that the Tribunal itself inquires into the matters rather than its counsel
illustrates also that the purpose of the legislature is not thwarted in any way
by the literal approach to the section. The Tribunal itself was established to
inquire into certain matters. Whilst preliminary work is necessary (and indeed
may be in ease of many persons by excluding them from the public hearings) the
effect of the literal interpretation is that if a person does not subject
themselves voluntarily to be questioned by counsel or staff of the Tribunal or
other preliminary work, then the matter moves on to the Tribunal’s most
important stage - that of public hearings. The person is then liable to be
called as a witness before the public hearing which hearing may range more
widely in the absence of preliminary work.
Conclusion
101. I
am satisfied that the correct construction of Section 4 is the literal one. The
section ensured that the Tribunal had the procedural powers of a High Court
Judge, that the
________________________________________________
-8-
102. Tribunal
in exercising its powers would do so in a manner analogous to the High Court.
It did not give to the Tribunal greater powers than a High Court Judge. Thus,
the Tribunal does not have the jurisdiction to make the two orders in issue. I
would affirm the order of the High Court and dismiss the appeal.
________________________________________________
THE
SUPREME COURT
149/99
JUDICIAL
REVIEW
Hamilton
CJ
Denham
J
Barrington
J
Keane
J
Murphy
J
Between:
LIAM
LAWLOR
APPLICANT/RESPONDENT
.v.
MR
JUSTICE FEARGUS FLOOD, THE SOLE MEMBER OF THE
TRIBUNAL
OF INQUIRY INTO CERTAIN PLANNING MATTERS AND PAYMENTS
RESPONDENT/APPELLANT
Judgment
of Mr Justice Francis D Murphy delivered the 8th Day of October 1999
103. I
agree with the judgment delivered by the Chief Justice and the Order which he
has proposed. To avoid unnecessary repetition I would respectfully adopt the
history of the matter as outlined in his judgment and the terminology and
abbreviations incorporated therein.
104. Mr
Justice Kearns quashed the first Order and third Orders made by the Sole Member
on the the grounds that he, the Sole Member, had no jurisdiction to make those
orders. It is that conclusion which the judgment of the Chief Justice upholds.
However, the learned trial Judge having determined to quash the third order on
the basis that the Sole Member had no
________________________________________________
jurisdiction
to make such order went on to say (at page 71 of the transcript of the
judgment) that:-
“Again,
if I am in error in so holding, I would hold in favour of Mr Hardiman's
submission on fair procedures in relation to the point in time where the
Applicant’s Re Haughey rights accrue, namely, in this situation, where
the Applicant is obliged to commit himself in an affidavit as to facts. An
affidavit sworn by a person in the Applicant’s position requires him to
commit himself in a form and manner which clearly will form part of the
evidence before the Tribunal and may consist of material either to build a case
against him or on which he may be later cross-examined. It is not therefore
confined in its intended user or effect to the preliminary stage of the
investigation but has a very real capacity to be a document of major
significance at public hearings or perhaps in some other forum to the detriment
of the Applicant.
Without
knowing the full detail of the case made against him, the Applicant is in
effect, being ordered to make a case against himself either by virtue of the
matters which he deposes in the affidavit or by his omissions. He could be
seriously disadvantaged at the public hearing had he sworn an affidavit at an
earlier stage which was significantly deficient in any respect for reasons of
which he might not have known at the time of making the affidavit.
It
seems to me that in this situation, the supposed demarcation line between the
preliminary investigation work and full public hearings is transgressed.
Accordingly,
-2-
________________________________________________
before
the Applicant is required to swear such an affidavit, he must be afforded his
re Haughey rights. As the Respondent has made it quite clear that such rights
will not be afforded at this juncture. I would feel obliged to quash the order
made on this alternative ground also.”
105. That
part of the judgment of the learned trial Judge was clearly
obiter.
Any
views expressed by this Court on that aspect of the judgment would be subject
to the same qualification. Furthermore, this Court did not have the advantage
of hearing argument in relation to the principles discussed in the passage
quoted from the judgment of the learned trial Judge: it was possible for this
Court to confine the oral submissions to the issue of jurisdiction.
Nevertheless I believe that it is desirable that I should record my doubts as
to the correctness of the conclusions of the learned trial Judge on the
application of the principles of natural and constitutional justice to the
conduct of the business of the Tribunal.
106. Many
of the essential requirements for the proper administration of justice have
been identified and accepted over several millennia. Professor John M Kelly
discussed in an essay in the Natural Law Forum (Vol 9 page 103) the application
in ancient Greece of the principle now known as
audi
alterampartem.
Other
writers have drawn attention to the enunciation of that same principle in the
Scriptures (see John, VII,
51).
The
antiquity of the principle and the wide acceptance of its application may
indeed justify the epithet
“natural”
to
the right which it confers. However, the legal, as opposed to the moral
importance of the principle, derived from the acceptance of it as part of the
common law in decisions recorded in the Year Books and reaffirmed more
authoritatively in the course of the 19th Century. In this jurisdiction there
is no doubt that the administration of justice requires the application of
-3-
________________________________________________
these
ancient principles reformed and reinforced by the provisions of the
Constitution. No doubt the two great precepts of natural justice are the
requirements, first, that the adjudicating body should not be a judge in his
own cause and, secondly, that nobody should be condemned to any sanction, civil
or criminal, without being afforded an opportunity of being heard. However,
those two principles are themselves subject to exceptions of which the
ex
parte
application
is an obvious example. If the requirements of fair procedures may be reduced in
some cases they may be expanded in others. In the
State
(Healy) v. Donoghue
[1976] IR 350 Chief Justice O’Higgins explained that the requirements of
fairness and of justice were required to be considered in relation to the
seriousness of the criminal charge brought against a person and the
consequences involved for him. The gravity of the charge and circumstances of
the accused might require - as they did in that case - that the person charged
should be afforded the opportunity of being legally represented.
107. The
particular requirement of natural justice that a party should be forewarned of
the claim or charge made against him or her is secured in the case of civil
proceedings by the Rules of the Superior Courts which provide for pleadings,
particulars, interrogatories and discovery and in the case of a criminal charge
by legislation which requires, in the case of a prosecution on indictment, not
merely particulars of the charges but also delivery of a book of evidence.
Different, but adequate, provision is made to safeguard the interest of persons
charged with minor offences tried in a summary manner. In practice, justice as
administered by the Courts set up under the Constitution and operated in an
adversarial system effectively guarantees to the defendant or accused an
adequate opportunity of knowing and meeting the case to be made against him.
-4-
________________________________________________
108. The
belief that the principles of natural justice, or some of them at any rate,
applied to tribunals, bodies, associations or persons empowered by statute or
contract to make decisions determinative of the property rights of particulars
persons or categories of persons ebbed and flowed throughout the 19th Century
but is now well established in this jurisdiction. The decision of Kenny J
(affirmed by this Court) in
BLN
v. Glover
[1973]
IR 388 illustrates the extensive range of bodies to which the requirements of
natural justice may be applicable. [hat was the case in which the board of
directors of a commercial company were held to be n breach of the requirements
of the appropriate standards of justice by failing to give their employee
adequate notice of the charges made against him before concluding that his
conduct warranted summary dismissal.
109. A
question remains as to the extent to which the rules of natural and
constitutional justice are applicable to an inquiry governed by the provisions
of the 1921 and 1979 Acts. It can be said with confidence based on principle
and the precedent of
In re Haughey
[1971] IR 217 that where the proceedings of such a Tribunal evolve into a case
against a particular person rather than an inquiry into his conduct, that the
appropriate rules apply. In my view it is important to recognise that the
“panoply
of rights
“,
as it has been described, to which Mr Padraig Haughey became entitled as held
by this Court in the
“Haughey
case”
arose
not because a preliminary investigation had been carried out and concluded or
because a witness was required to give evidence on oath but because the
procedures of the Committee of Public Accounts put Mr Padraig Haughey in a
position where he was being accused of serious misconduct The situation was
summarised by O’Dalaigh CJ (at page 262) in the following terms:-
-5-
________________________________________________
“Therefore,
the position of Mr Haughey was that at a public session of the Committee on the
9th of February 1971 he had been accused of conduct which reflected on his
character and good name and that the accusations made against him were made
upon the hearsay evidence of a witness who asserted he was not at liberty, and
therefore was not prepared, to furnish the Committee with the names of Mr
Haughey ‘s real accusers. The question which arises in these
circumstances is what rights, if any, is Mr Haughey entitled to assert in
defence of his character and good name.
It
was in those circumstances that Counsel on behalf of Mr Padraig Haughey
contended that their client was entitled to have his accusers cross-examined
and that he should be entitled to address, by his Counsel, the Committee in his
defence. The Attorney General’s argument in response was that Mr Padraig
Haughey was seeking rights which would not be available to a witness in the
High Court. That argument was rejected on the grounds that Mr Haughey was no
mere witness. Again, it was the then Chief Justice who said (at page 263) that:-
“The
true analogy, in terms of High Court procedure, is not that of a witness but a
party. Mr Haughey ‘s conduct is the very subject matter of the
Committee’s examination and is to be the subject matter of the
Committee’s report.”
110. In
the Haughey case this Court identified two situations. First, where a potential
witness becomes a potential accused with the result that what commenced as an
inquiry ceased to be inquisitorial and became adversarial. Not merely that: it
took on the aspect of the criminal prosecution. That change clearly triggered a
constitutional requirement of a right to vindicate the name of the accused.
-6-
________________________________________________
111. The
other consequence of the working of the parliamentary committee identified by
the Chief Justice was that Mr Padraig Haughey might be the subject matter of
adverse criticism of a public report in respect of which the authors would
enjoy legal immunity. This was a Situation which necessitated the adoption
procedures to enable the
“witness”
to
protect his constitutional rights.
112. It
is not my understanding that the Constitution requires every witness
participating in a public sworn inquiry to have advance notice of questions
which may be addressed to him or of evidence given or to be given before the
Tribunal. The purpose of a public inquiry, such as the present is twofold:
first, for the Oireachtas to obtain information to enable it to perform more
effectively its legislative functions and secondly, to assuage public concern
as to the existence of a particular state of affairs. The second of these
purposes manifestly requires that the business of the Tribunal should be
conducted in public. That general requirement is tempered by the limited
statutory exemption in favour of private sittings. This exemption is necessary
to avoid giving undue and privileged publicity to wholly unsustainable
allegations and it is desirable also to ensure that the Tribunal equips itself
with adequate information to conduct a meaningful public inquiry. However, the
fact that the Sole Member and his Counsel or advisors will have a body of
information available to them would not of itself convert the inquisitorial
proceedings into one of an adversarial nature.
113. Clearly
an inquiry may, as it did in the Padraig-Haughey case, evolve into a charge by
the investigative body against what should be a witness. On the other hand, it
is to my mind, inconceivable that witnesses who are called before a Tribunal to
give such evidence as is available to them in relation to the subject matter of
the Tribunal should be treated as
-7-
________________________________________________
defendants
in civil or criminal proceedings or afforded the rights which would be
available to such parties. An inquiry as such does not constitute legal
proceedings (whether civil or criminal) against any person: less still does it
constitute a multiplicity of legal proceedings against each and every of the
witnesses subpoenaed to appear before it. If such were the case t would be
impossible to conduct any inquiry. In that event it would be necessary for each
witness to cross-examine not only the witnesses who gave evidence before he did
but also that he should have an opportunity of cross-examining those who gave
evidence after he had been heard.
114. It
must be remembered that the report of the Tribunal whilst it may be critical
and highly critical of the conduct of a person or persons who give evidence
before it is not determinative of their rights. The report is not even a stage
in a process by which such rights are determined. The conclusions of the
Tribunal will not be evidence either conclusive or
prima
facie
of
the facts found by the Tribunal.
115. This
is not to suggest for one moment that a party to adversarial proceedings has
extensive natural and constitutional rights and that a witness before a
Tribunal has none. It is merely to recognise that the need for rights in
determinative proceedings differs from those which have no such consequence and
that some of the rights long associated with adversarial proceedings do not
translate into those of an inquisitorial nature. What I venture to suggest is
that it may be necessary to examine afresh the manner in which the
constitutional rights of a witness required to attend such a public inquiry
must be protected. In that regard it must be recalled that natural rights are
the procedures for the protection of the constitutional rights of citizens and
the attainment of justice. They are not a ritual or formula requiring a slavish
adherence.
-8-
________________________________________________
116. Clearly
witnesses must know the subject matter of the inquiry and be advised as to the
procedure to be adopted by it. In the interest of the Tribunal as well as that
of the witness notice should be given to the witness of the area in respect of
which it is intended to examine him. In the course of his examination a variety
of matters will be put to the witness. Much of Ii is will be the rumour,
speculation or comment which has given rise to the public concern which
justified the setting up of the Tribunal. In addition it is c1ear that the
Tribunal would have to put to a witness the substance of any evidence given or
to be given to the Tribunal of which it was aware so that the witness could
comment on it before the Sole Member expressed his opinion as to the true state
of facts in his report to Dail Eireann. I am not persuaded at this stage that a
witness is entitled to cross-examine or have cross-examined any other witness
who gave evidence critical of him. To impose such a requirement would involve
the assumption that cross-examination is the only means or the only appropriate
means of eliciting the truth. Such an assumption would place an excessive value
on the adversarial system and implicitly reject alternative systems which find
favour in other jurisdictions and appear to achieve an equally high standard of
truth and justice. The cxamination and cross-examination of witnesses by the
Tribunal or its Counsel might meet the requirements of natural justice having
regard to functions which such a body performs. Whether a Tribunal so confines
the proceedings would be a matter for the judgment of the Tribunal itself. In
certain cases it might be persuaded that the cross-examination of witnesses
critical of a particular person should be open to cross-examination by Counsel
of behalf of that person. I would assume that the essence of such tribunals and
the primary means by which natural justice is attained is the appointment as a
member or a sole member of a person or persons conscious of the constitutional
rights of every citizen: familiar with the procedures by which such rights may
be protected: sensitive to the understandable concerns of all of those whose
affairs are affected by the business of the Tribunal and innovative in designing
-9-
________________________________________________
procedures
to protect such rights and meet such concerns. I would have thought that the
appointment of a Judge of the Superior Courts to act as a sole member would in
itself go a long way to ensuring the protection of the constitutional and civil
rights of all witnesses.
117. I
am far from convinced, therefore, that each and every witness required to give
evidence (whether in public or private) before a Tribunal is entitled to the
full panoply of the Haughey rights simply because preliminary inquiries have
been completed or evidence is required to be given on oath. However, it would
be impossible to express any concluded judgment in this matter until the issue
comes before the Courts in an appropriate case for determination.
118. In
relation to the present appeal I would affirm the order of the learned trial
Judge and record, as I have done, my reservations as to the correctness of the
views which he expressed on the application of the principles of natural
justice to a case such as the present.
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© 1999 Irish Supreme Court
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