THE SUPREME COURT
HAMILTON C.J.
DENHAM J.
BARRINGTON J.
KEANE J.
MURPHY J.
103/98

BETWEEN:
CHARLES J. HAUGHEY, MAUREEN F. HAUGHEY,
EIMEAR MULHERN, ETHNA HAUGHEY
AND
MAUREEN HAUGHEY
Plaintiffs/Appellants
and

MR. JUSTICE MICHAEL MORIARTY,
CLERK OF DÁIL ÉIREANN,
CLERK OF SEANAD EIREANN, IRELAND
AND THE
ATTORNEY GENERAL
Defendants/Appellants

Judgment by Hamilton C.J. [Nem. Diss.]

[Decision of the Supreme Court on the validity of the Tribunals of Inquiry (Evidence) Act, 1921 as amended having regard to the provisions of the Constitution pronounced by the Chief Justice on the 28th day of July 1998.]

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Part of the Plaintiffs’ appeal in the case is against the dismissal by the High Court of their claim for a declaration that the Tribunal of Inquiry (Evidence) Act, 1921 as amended is invalid having regard to the provisions of the Constitution. The Court in this decision deals with that issue.

The submissions made on behalf of the Plaintiffs/Appellants in this case extend beyond the mere issue as to whether or not the provisions of the 1921 Act (as amended) themselves are invalid having regard to the provisions of the Constitution and raise the issues as to:-

(a)	whether the Houses of the Oireachtas have jurisdiction to resolve that it is expedient that a tribunal be established for enquiring into a definite matter described in the Resolution as of urgent public importance;

(b)	the jurisdiction of the Taoiseach or a Minister of the Government, acting in pursuance of the said Resolution, to appoint a tribunal for

(3)

such purpose and to provide that the provisions of the 1921 Act (as amended) shall apply to the Tribunal so established;

(c)	whether the provisions of the 1921 Act (as amended) can apply to such a Tribunal of Inquiry;

(d)	whether the provisions of the 1921 Act continued to be of full force and effect having regard to the provisions of Article 50 of the Constitution, and

(e)	whether the provisions of the 1921 Act (as amended) are invalid having regard to the provisions of the Constitution.

These issues are of general application and must be considered by the Court without regard to the terms of the Resolution and Order made in the instant case.

The Court considers that the following provisions of the Constitution are relevant to these issues.

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Article 5 which provides that:-

"Ireland is a sovereign, independent, democratic state.”

Article 6 which provides that:-

“1.	 All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.

2.	These powers of government are exercisable only by or on the authority of the organs of State established by this Constitution.”

Article 15.2 of the Constitution which provides:-

“1. The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas.”

Article 15.10 which provides:-

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“Each House shall make its own rules and standing orders, with power to attach penalties for their infringement, and shall have power to ensure freedom of debate, to protect its official documents and the private papers of its members, and to protect itself and its members against any person or persons interfering with, molesting or attempting to corrupt its members in the exercise of their duties.”

Article 28.2 which provides that:-

“The executive power of the State shall, subject to the provisions of this Constitution, be exercised by or on the authority of the Government.”

Article 34.1 which provides that:-

“Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.”

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The Court considers it necessary at this stage to set forth the relevant provisions of the 1921 Act (as amended) and to summarise the effect of such provisions.

The Tribunals of Inquiry (Evidence) Act, 1921 (as amended)

The Tribunals of Inquiry (Evidence) Act, 1921 (hereinafter referred to as the 1921 Act) is a short Act expressed to be 

‘An Act to make provision with respect to the taking of evidence before and the procedure and  powers of Certain Tribunals of Inquiry’ 

and 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 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

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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.

(2) If any person-

(a)	on being duly summoned as a witness before a tribunal makes default in attending; or

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(b)	being in attendance as a witness refuses to take an oath legally required by the tribunal to be taken, or to produce any document 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)	does any other thing which would, if the tribunal had been a court of law having power to commit for contempt, have been contempt of that court; the chairman of the tribunal may certify the offence of that person under his hand to the High Court, or in Scotland the Court of Session, and the court may thereupon inquire into the alleged offence and after hearing any witnesses who may be produced against or on behalf of the person charged with the offence, and after hearing any statement that may be offered in defence, punish or take steps for the punishment of that person in like manner as if he had been guilty of contempt of the court.

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(3) A witness before any such tribunal shall be entitled to the same immunities and privileges as if he were a witness before the High Court or the Court of Session.

2.	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; and
(b) 	shall have power to authorise the representation before them of any person appearing to them to be interested to be by counsel or solicitor or otherwise, or to refuse to allow such representation.”

The 1921 Act was amended by the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979 (hereinafter referred to as the 1979 Act) by the

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substitution for Section (1) (s.s. 2) of the 1921 Act of Section 3 of the 1979 Act, which creates certain offences.

Section 4 of the 1979 Act provides that:-

“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.”

Section 5 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 proceedings in relation to an offence under subsection (2)(c) (inserted by this Act) of that section] and

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subsection (3) of that section shall be construed and have effect accordingly.”

Section 6 provides that:-

“(1) Where a tribunal, or, if the tribunal consists of more than one member, the chairman of the tribunal, is of opinion that, having regard to the findings of the tribunal and all other relevant matters, there are sufficient reasons rendering it equitable to do so, the tribunal or the chairman, as the case may be, may by order direct that the whole or part of the costs of any person appearing before the tribunal by counsel or solicitor, as taxed by a Taxing Master of the High Court, shall be paid to the person by any other person named in the order.”

Section 1 of the 1921 Act was amended by the Tribunal of Inquiry (Evidence) (Amendment) Act, 1997 (hereinafter referred to as the 1997 Act) by the insertion of the following provision:-

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“(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.”

Section 6 of the 1979 Act was amended by the 1997 Act by the substitution therefor of the following subsection:-

(1)	Where a tribunal or, if the tribunal consists of more than one member, the chairperson of the tribunal, is of opinion that, having regard to the findings of the tribunal and all other relevant matters (including the terms of the resolution passed by each House of the Oireachtas relating to the establishment of the tribunal or failing to co-operate with or provide assistance to, or knowingly giving false or misleading information to, the tribunal), there are sufficient reasons rendering it equitable to do so, the tribunal, or the chairperson, as the case may be, may, either of the tribunal’s or the chairperson’s own motion, as the case may be, or on application by

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any person appearing before the tribunal, order that the whole or part of the costs -

(a)	of any person appearing before the tribunal by counsel or solicitor, as taxed by a Taxing Master of the High Court, shall be paid to the person by any other person named in the order;

(b)	 incurred by the tribunal, as taxed as aforesaid, shall be paid to the Minister for Finance by any other person named in the order.

(2) 	The amendment effected by subsection (1) of this section does not apply to costs incurred before the passing of this Act.

Section 4 of the 1997 Act provides that:-

“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.”

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Two subsequent Acts dealt with circumstances in which the instrument appointing a Tribunal may be amended but are not relevant to these proceedings.

Summary of the effect of the said provisions

The effects of the foregoing legislation may be summarised as follows:-

1.	The tribunal 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 so to do for reasons connected with the subject matter of the inquiry or the nature of the evidence to be given. (Sec. 2(a) of the 1921 Act)

2.	The tribunal has all the powers, rights and privileges as are vested in the High Court on the occasion of an action in respect of the following matters -

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(a)	enforcing the attendance of witnesses and examining them on oath, affirmation or otherwise;
(b)	compelling the production of documents;
(c)	subject to Rules of Court, the issuing of a commission or request to examine witnesses abroad (Section 1(a) of the 1921 Act).

3.	(i) The tribunal has the power to make such orders as it considers necessary for the purposes of its functions.

(ii)	In the making of such orders, the tribunal has 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. (Section 4 of the 1979 Act). The Tribunal however does not have the powers, rights and privileges vested in the High Court for enforcing compliance with its orders. To secure compliance therewith it must apply to the High Court in accordance with Section 7 of the 1997 Act.

4.	The tribunal has power to award costs. (Section 3 of the 1997 Act)

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5.	A witness before the tribunal shall be entitled to the same immunities and privileges as if he were a witness before the High Court. (Section 1(3) of the 1921 Act)

6.	A statement or admission by a person before a tribunal shall not be admissible as evidence against that person in any criminal proceedings, other than proceedings for an offence under the 1979 Act. (Sec. 5 of the 1979 Act)

7.	A person who produces or sends a document to the tribunal in pursuance of 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. (Section 2 of the 1997 Act)

Submissions on behalf of the Plaintiffs/Appellants

It was submitted firstly on behalf of the Plaintiffs/Appellants that the 1921 Act (as amended) does not empower the establishment of a Tribunal of Inquiry.

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This submission was accepted by the Respondents herein and is accepted by the Court.

The Court considers that on this issue it is only necessary to repeat and concur with the statement made by Costello J., as he then was, in the course of his judgment in Goodman International and Laurence Goodman .v. Hamilton no.1 [1992] 2 IR p. 542 (hereinafter referred to as the Goodman case) at page 554 of the Report:-

“1. There is no statutory provision which empowers the establishment of this Tribunal either by the two Houses or the Minister. It is established by an administrative act, that is by the order of the Minister of the 31st May, 1991.”

It was submitted on behalf of the Appellants herein that, in the absence of such a statutory provision, the Houses of the Oireachtas had no

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jurisdiction to pass the resolutions referred to and that the Taoiseach or any Minister had no power to establish such a Tribunal.

It was submitted that while it may be open to a sovereign Parliament of the United Kingdom to resolve that it is expedient that a tribunal be established for inquiring into a definite matter described in the resolution as being of urgent public importance and, in pursuance of such a resolution, open to Her Majesty or a Secretary of State to appoint a tribunal and to provide that the provisions of the 1921 Act should apply thereto, it was not open to the Houses of the Oireachtas so to resolve and to the Taoiseach or a Minister so to appoint and provide, having regard to the provisions of, and the framework provided by, the Constitution.

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It was submitted that the jurisdiction of the Houses of the Oireachtas in this regard was limited by the provisions of Article 15.10 of the Constitution which provides that -

“Each House shall make its own rules and standing orders, with power to attach penalties for their infringement, and shall have power to ensure freedom of debate, to protect its official documents and the private papers of its members, and to protect itself and its members against any person or persons interfering with, molesting or attempting to corrupt its members in the exercise of their duties.”

This submission is based on a misunderstanding of the role of the Houses of the Oireachtas as set forth in the Constitution.

Article 5 thereof provides that Ireland is a sovereign, independent, democratic state.

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Accordingly, the powers of Government are exercisable by or on the authority of the organs of State established by the Constitution (Art. 6.2).

As stated by Ó Dálaigh J. in the course of his judgment in In Re Haughey [1971] IR 217 at p. 250: -

“The Constitution of Ireland is founded on the doctrine of the tripartite division of the powers of Government - legislative, executive and judicial - as appears from an examination of Articles 6, 15, 28 and 34.”

Having regard to the sovereign and democratic nature of the State, each of the organs of Government enjoy the powers normally exercised by such organs in a sovereign and democratic state and are not restricted to the powers expressly set forth in the provisions of the Constitution. They are, however, subject to the provisions of the Constitution and in the exercise of such powers, are obliged to have regard to such provisions.

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The powers of the Houses of the Oireachtas are not limited to those specifically set forth in Article 15 of the Constitution but must include such powers as are normally and necessarily exercised by a legislature in a democratic state. These powers and the exercise thereof may of course be limited by the provisions of the Constitution.

In the course of his judgment in the Goodman case, Costello J. stated at page 563 of the Report that:-

“1. In my judgment, there is nothing in the Constitution which prohibits the two Houses of the Oireachtas from directing that a Tribunal of Inquiry be established to inquire into allegations of matters the subject of current civil proceedings. Such an inquiry does not infringe the principle of the separation of powers.
The Minister may validly act on such a direction and the Tribunal may validly inquire into such allegations.”

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The views of Costello J. were accepted by Finlay CJ. in the course of his judgment in the Goodman case where he stated that

“I am satisfied that Costello J. was correct in the conclusions he reached and in the reasoning by which he reached them.”

The Court is satisfied that there is no provision in the Constitution which prohibits the two Houses of the Oireachtas from resolving that it is expedient that a tribunal be established for enquiring into a definite matter described in the resolution as of urgent public importance; or which prohibits the Taoiseach or a Minister from appointing a Tribunal in pursuance of such resolution.

While there is no provision in the Constitution prohibiting them from so doing the questions still remain as to whether it was inherent in their jurisdiction so to do, in the absence of any enabling statutory

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provision, as to whether it is essential in a parliamentary democracy that Parliament should have power to initiate inquiries into specific matters which they consider of urgent public importance.

This issue was raised in the Goodman case.

In the course of his judgment therein, Costello J. stated at page 554: -

“The Government or any Minister can inquire into matters of public interest as part of the exercise of its executive powers but if this is done without reference to parliament then the inquiry will not have statutory powers which are to be found in the Tribunals of Inquiry (Evidence) Act, 1921 and the Tribunals of Enquiry (Evidence) (Amendment) Act, 1979.”

In this passage Costello J. recognised that the Government or any Minister can inquire into matters of urgent public importance as part of its executive powers but that if this is done without reference to Parliament

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then the Inquiry will not have the statutory powers set forth in the 1921 Act (as amended).

Having cited the provisions of Article 15.10 in the course of his judgment in the Goodman case, Hederman J. went on to say that (at p. 597 of the Report):-

“But in any parliamentary democracy, it is essential that the Parliament should have power to initiate inquiries.”

On this issue he further stated at page 598 that:-

“In the United States of America, the Supreme Court has held that the power of the Congress to conduct investigations ‘is inherent in the legislative process’. Watkins .v. United States [1956] 354 U.S. 178 at 187”

and

“In summary, therefore, there is a strong historical basis for saying that a tribunal such as the one in question here, is appropriate and

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indeed thoroughly necessary for the proper functioning of the legislative and executive organs of the State.”

At the conclusion of his judgment in the Goodman case McCarthy J. clearly recognised the power of Parliament to pass the resolutions passed in that case where he stated at page 610 of the Report:-

“The parliamentary resolution requires due respect from the judicial organ of Government.”

He went on however to state:-

“Whilst the range of the remit contained in the resolution has been alleged to trench upon the judicial power, there has been no suggestion of any impropriety or abuse of the Parliamentary power. If an allegation of impropriety or abuse of power were to be made, then, both as to ascertaining the facts and enforcing constitutional rights, to echo the words of Ó Dálaigh C.J. in the State (Quinn) .v. Ryan [1965] IR 70 at p. 122: -

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‘the Courts’ powers in this regard are as ample as the defence of the Constitution requires’.”

The Court is satisfied that while the 1921 Act (as amended) does not empower the establishment of a Tribunal of Inquiry such as was established in this case, that the Houses of the Oireachtas had and have the inherent jurisdiction to resolve that it is expedient that a Tribunal be established to inquire into what they consider to be urgent matters of public importance. In pursuance of such a resolution the Taoiseach had jurisdiction to appoint a Tribunal for such purpose and to provide in the instrument or order appointing such Tribunal that the 1921 Act as amended should apply.

The powers of both Houses of the Oireachtas in this regard, however, are not absolute.

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The power cannot be abused, exercised for improper motives or in breach of constitutional rights including the right to fair procedures. If such circumstances arise, the exercise of such power can be restrained by the Courts and in this regard, as stated by C.J. in the State (Quinn) .v. Ryan [1965] IR 70 at p. 122: -

“The Court’s powers in this regard are as ample as the defence of the Constitution requires.”

The resolutions of both Houses of the Oireachtas enjoy the same presumption of constitutional validity as has been applied by this Court to statutes enacted by the Oireachtas and to bills passed by both Houses of the Oireachtas and referred to this Court by the President pursuant to Article 26.

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The presumption of constitutional validity, also in its application to such resolutions, must contain the principle set out by the decision of this Court in East Donegal Co-Operative Livestock Marts Ltd.. v. Attorney General [1970] IR 317 in the judgment delivered by Walsh J. where he stated at page 341 as follows:

"   that the Oireachtas intended that proceedings, procedures, discretions and adjudications which are permitted, provided for or prescribed by an Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice.”

It was further submitted that the 1921 Act did not continue to be of full force and effect subsequent to the enactment of the Constitution by reason of the fact that the provisions thereof were inconsistent therewith.

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The determination of this issue will depend on the Court’s decision as to whether the provisions thereof are invalid having regard to the provisions of the Constitution.

Presumption of Constitutionality

The presumption of constitutionality which has been afforded by this Court to Acts of the Oireachtas extends neither to pre-1922 Acts of the late United Kingdom Parliament nor to pre-1937 legislation.

As stated by Budd J. in the course of his judgment in Educational Company .v. Fitzpatrick (No. 2) [1961] IR 345 at p. 368: -

“It is suggested that there is some presumption that [the Trade Dispute Act 1906] is constitutional, such a presumption may well apply to Acts of the Oireachtas, since the legislative body must be deemed to legislate with a knowledge of the Constitution and presumably does not intend by its measures to infringe it. There is

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no logical basis for such a presumption in the case of Acts of the late United Kingdom Parliament. The legislature then had no knowledge of the Constitution to be and could never be said to have legislated with any regard to it.”

The presumption of constitutionality is available only to acts of the post-1937 Constitution.

In the State (Sheerin) .v. Kennedy [1966] IR 379 this Court was unanimous with the judgment of Walsh J. where he stated (at p. 386): -

“All laws in force on the date immediately prior to the coming into operation of the Constitution are presumed not to be in conflict with the Constitution in force at the date of their enactment or in excess of the powers of the Parliament which enacted them, but they enjoy no such presumption in respect of the provisions of the present Constitution and fall to be examined under the provisions of Article 50 of the Constitution - not as to their validity but, even

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assuming they were valid, as to whether or not they are inconsistent with the provisions of the present Constitution.”

While there is no presumption of constitutionality in favour of pre-1922 Acts of Parliament or Acts passed prior to the coming into effect of the Constitution, this Court in Norris .v. Attorney General [1984] IR 36 confirmed that the onus of establishing the inconsistency of the terms of a statute with the provisions of the Constitution rests with the person who challenges its continued validity.

At page 53 of the report, O’Higgins C.J. states that:-

“The purpose of Article 50, s. 1, is to continue in force the laws which had previously operated in Saorstát Éireann, with as few exceptions as possible. The phrase “subject to this Constitution” indicates an obvious requirement that, in order to be operable in the new State, such laws must fit into the framework of, and be controlled by, the Constitution. If, by the nature of their

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provisions, this were not possible, such laws, on that account alone, could not be continued. Subject to the Constitution in that sense, such laws are to continue to be of full force and effect ‘to the extent to which they are not inconsistent therewith.’

If Article 50 had provided that such laws would continue to be of full force and effect ‘to the extent to which they are consistent with the Constitution’ would it have the same meaning and effect? In my view, it clearly would not. In such circumstances, consistency would have to be proved and in the absence of such proof the law or laws would be inoperative. However, according to the actual words used in Article 50, the law or laws in question operate unless inconsistency is established, and the onus of establishing such is placed on the person who challenges their continued validity. This is not to say that such pre-Constitution laws enjoy any presumption of consistency or constitutionality. They do not. Each such law must be examined to see what it purports to authorise or permit. If on such examination it emerges that the law permits what the Constitution prohibits or forbids what the Constitution sanctions, then inconsistency is established,

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and to the extent thereof the law would be declared to have ceased to have effect on the coming into operation of the Constitution.”

Consequently, while the 1921 Act does not enjoy the presumption of constitutionality, the amending Acts 1979-1998, being post-1937 Statutes, do.

As the Plaintiffs/Appellants challenge the continued validity of the 1921 Act and the validity of the amending Acts, 1979-1998, having regard to the provisions of the Constitution, the onus rests on them to establish such challenge.

Constitutionality of the 1921 Act as amended

It was submitted on behalf of the Plaintiffs/Appellants that the provisions of the 1921 Act (as amended) are invalid having regard to the provisions of the Constitution on the basis that a Tribunal, vested with the

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powers, rights and privileges set forth in the Act, in the conduct of its inquiries, is administering justice contrary to the provisions of Article 34.1 of the Constitution, which provides that

“justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and save in such special and limited cases as may be prescribed by law, shall be administered in public.”

It is important at this stage to emphasise that though the Tribunal is vested with the powers set forth in Section 1 of the 1921 Act and Section 4 of the 1979 Act, the Tribunal has itself no power to enforce its orders or to punish a person for failure to comply with such orders.

By virtue of the provisions of Section 2 of the 1921 Act, the Chairman of the Tribunal was obliged in the case of an offence by any person before the Tribunal to invoke the assistance of the High Court, or in Scotland the

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Court of Sessions, by certifying the offence of that person to such Court which was then required to inquire into the alleged offence and after hearing any witnesses who may be produced against or on behalf of the person charged with the offence, and any statement that may be offered in defence, punish or take steps for the punishment of that person in like manner as if he had been guilty of contempt of court.

As previously stated, this sub-section of the Act of 1921 was replaced by Section 3 of the 1979 Act, which created the offences therein set forth and provided for the manner in which they would be dealt with.

This Section provided that a person is guilty of an offence thereunder if he

(a)	on being duly summoned as a witness before a tribunal, he, without just cause or excuse disobeys the summons, or

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(b)	being in attendance as a witness refuses to take an oath or make an affirmation when legally required to do so, or

(c)	to produce any document (which word shall be construed in this subsection and in sub-s. (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

(d)	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

(e)	by act or omission obstructs or hinders the tribunal in the performance of its functions, or

(f)	fails, neglects or refuses to comply with the provisions of an order made by the tribunal, or

(g)	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 in contempt of that Court.

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By virtue of the provisions of Section 2A of the 1921 Act (as amended), a person found guilty of such an offence on indictment was liable to a fine not exceeding £10,000 or at the discretion of the Court, to imprisonment for a term not exceeding 2 years or both such fine and such imprisonment or on summary conviction in the circumstances set forth in 2A(b), to a fine not exceeding £500 or imprisonment for a term of imprisonment not exceeding 1 year or to both such fine and imprisonment.

Though the powers of the Tribunal are set forth in Section 1(a), (b) and (c) of the 1921 Act and in Section 4 of the 1979 Act, which provides that “a Tribunal may make such orders as it considers necessary for the purposes of its functions”, the foregoing list of offences created by Section 3 of the 1979 Act gives a clear indication of the nature and extent of such powers.

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Though Section 4 of the 1979 Act gave power to the tribunal to make such orders as it considers necessary for the purposes of its functions and provided that it shall in relation to their making, have all such powers, rights and privileges as are vested in the High Court or a Judge of that Court in the making of such orders it does not give to the Tribunal any power to enforce such orders.

This is further emphasised by the provisions of Section 4 of the 1997 Act which provides that:-

“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 order as it considers necessary and just.”

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Though the powers, rights and privileges which are vested in the Tribunal include many of the powers, rights and privileges vested in the High Court, they do not include the power vested in the High Court to enforce its orders and impose penalties for breach thereof.

Compliance with such orders can only be enforced by the High Court but failure to comply therewith could also result in a conviction for an offence, rendering a person convicted of such an offence, liable to a fine not exceeding £10,000 or imprisonment for a term not exceeding two years or to both.

The question of whether or not a Tribunal appointed by a Minister in pursuance of a Resolution by both Houses of the Oireachtas and enjoying the powers and privileges vested in it by the provisions of the 1921 Act as amended was, in the discharge of its functions, engaged in the

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administration of justice was considered in detail by this Court in the Goodman case already referred to.

In the course of his judgment therein Finlay C.J., at page 589 of the Report, when dealing with the provisions of Article 34 of the Constitution, stated -

“The meaning of the constitutional concept of the administration of justice involved in this Article was identified in the tests set out in the judgment of Kenny J. in the High Court in McDonald .v. Bord na gCon [1965] IR 217 in a passage which was later accepted by the decision of the Supreme Court in the judgment of Walsh J. I, like Costello J., in the course of his judgment in this case, would adopt them as being appropriate tests. The passage is as follows:-

‘It seems to me that the administration of justice has these characteristic features:

1.	A dispute or controversy as to the existence of legal rights or a violation of the law;

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2.	The determination or ascertainment of the rights of parties or the imposition of liabilities or the infliction of a penalty;

3.	The final determination (subject to appeal) of legal rights and liabilities or the imposition of penalties;

4.	The enforcement of those rights or liabilities or the imposition of a penalty by the Court or by the executive power of the State which is called in by the Court to enforce its judgment;

5.	The making of an order by the Court which as a matter of history is an order characteristic of Courts in this country.”

He then went on to say:-

“I am satisfied that with the possible exception of the first clause in this statement of the characteristics of the administration of justice, where it speaks of a controversy as to the existence of a violation of the law, the activities of this Tribunal of Inquiry fulfil none of the

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other fundamental conditions or characteristics of the administration of justice as laid down in this case. It can be argued, I suppose, that by reason of the inquisitorial nature of the Tribunal that it is not accurate to speak of a controversy concerning the violation of the law, but even if it is, and I would incline to the view that it would come within that category, that fact alone could not conceivably make the proceedings of this Tribunal an administration of justice within the meaning of Article 34 of the Constitution.

In a sense a positive test which can be applied, and very strikingly, is that contained in Clause 5 of the principles laid down by Kenny J. It is no part and never has been any part of the function of the judiciary in our system of law, to make a finding of fact, in effect, in vacuo and to report it to the Legislature. The Courts do not even exercise a function of making, in cases between litigants, a finding of fact which does not have an effect on the determination of a right.”

In the course of his judgment Hederman J. stated (at p. 601): -

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“Normally a judge or a Court is concerned in the first instance with disputes between rival parties and such do not exist in the case of this Tribunal and secondly there is no power to inflict any penalty. All this Tribunal can do is to investigate, make findings and report these findings to the Minister.”

He went on to say that:-

“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..... Reference was also made to Section 6 which gives the Tribunal power to order that the costs of a person appearing before the Tribunal should be paid by someone else appearing before the Tribunal. It is clear that these amendments to the Act of 1921 are to give Tribunals set up under the relevant legislation further efficacy.....The fact that powers similar to those exercised by the High Court are conferred on a particular administrative Tribunal or Tribunal of Inquiry does not constitute such bodies courts.”

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The powers conferred by Section 4 of the Act of 1979 on a tribunal to which the Act of 1921 as amended apply are, accordingly, not unlimited. It is to be presumed that the Oireachtas did not intend to confer on such a tribunal the power to administer justice in violation of Article 34.1 of the Constitution unless no other construction of Section 4 is reasonably open. The long title of the Act of 1921, together with which the Act of 1979 is to be construed, makes it clear that it is an Act  “to make provision with respect to the taking of evidence and the procedure and powers of.....” tribunals of this nature. Such a tribunal, moreover, was confined to making such orders under Section 4 as it considered necessary  “for the purposes of its functions”.

While the intention clearly was that such tribunals should be armed with the same powers as the High Court in regard to the taking of evidence, this was subject to the major qualification that the tribunal, unlike the High

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Court, would have no power to ensure compliance with its orders by such means as the contempt of court procedure. It is unnecessary for the purposes of this judgment to identify with any greater particularity the powers which it was intended to confer on such tribunals in addition to those expressly specified in the legislation: it is sufficient to say that the court entirely agrees with the conclusion of Hederman J. in the passage just cited that the fact that such powers are conferred on a Tribunal of Inquiry does not constitute such a body a court. That conclusion is also entirely consistent with the following passage from the judgment of McCarthy J., (at p. 604) in the same case:-

“In my judgment, neither the passing of the relevant resolutions by the Dáil and Seanad nor the appointment of the Tribunal infringes Articles 34, 37 or 38 of the Constitution. There is no usurpation of the role of the judiciary in the administration of justice.”

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The Court is satisfied that, though the aforesaid statements were made in the context of the resolutions passed which led to the Inquiry referred to in the Goodman cases, they are correct and apply to all such inquiries and that the conduct of such an inquiry does not amount to the administration of justice. The critical factor is trial and adjudication, not inquiry.

This Court is satisfied that the activities of a Tribunal of Inquiry of this type fulfil none of the fundamental conditions or characteristics of the administration of justice as laid down by Kenny J. in McDonald .v. Bórd na gCon [1965] IR 217 in the passage which was later accepted by the decision of the Supreme Court in the judgment of Walsh J. and set forth in the judgment of Finlay C.J. in the Goodman case at page 393.

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The Tribunal is not conducting a trial and in no sense is adjudication involved: it is merely conducting an inquiry.

The nature of the powers conferred on the Tribunal by the relevant sections of the 1921 Act as amended must however be construed as subject to the constitutional framework and, in particular, involving fair procedures.

The Court is entitled to assume that a Tribunal of Inquiry will conduct its inquiry, as it is obliged to do, in accordance with the principles of constitutional justice and in particular with regard to fair procedures.

The Court is satisfied that it has not been established to the satisfaction of the Court that the provisions of the 1921 Act as amended are invalid having regard to the provisions of the Constitution or are inconsistent therewith.

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The Order of the Court will so declare.

The said Act of 1921 (save where amended) continues to be of force and effect pursuant to the provisions of Article 50 of the Constitution.

The Order of the Court will so declare.

This concludes the judgment of the Court.

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The Court now turns to a consideration of the several grounds of appeal which raise questions which are independent of the constitutionality of the 1921 Act as amended and this judgment is also a judgment of the Court.

Before dealing with these grounds, it is necessary to set forth in some detail the background thereto.

A resolution in the following terms was passed by Dáil Éireann on the 11th day of September, 1997 and by Seanad Éireann on the 18th day of September, 1997: -

“Bearing in mind serious public concern arising from the Report of the Tribunal of Inquiry (Dunnes Payments) published on 25 August, 1997, which established that irregular payments were made to and benefits conferred on certain persons who were members of the Houses of the Oireachtas between 1 January, 1986 and 31 December, 1996.

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And noting that the said Tribunal established that money was held on deposit in certain Irish banks by offshore banks in memorandum accounts (‘the Ansbacher accounts’) for the benefit of Irish residents including Mr. Charles Haughey (the history of which deposits is set out in Chapter 6 of the Report of the said Tribunal).

And noting further that the Dunnes Payments Tribunal was unable by reason of its terms of reference to investigate the source of the Ansbacher accounts, other than in respect of sums paid by certain persons referred to in the said terms of reference.

Resolves 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:

(a)	Whether any substantial payments were made, directly or indirectly, to Mr. Charles Haughey (whether or not used to discharge monies or debts due by Mr. Charles Haughey

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or due by any company with which he was associated or due by any connected person to Mr. Charles Haughey, within the meaning of the Ethics in Public Office Act, 1995 or discharged at his direction) during any period when he held public office commencing on 1st January, 1979 and thereafter up to the 31st December, 1996 in circumstances giving rise to a reasonable inference that the motive for making the payment was connected with any public office held by him or had the potential to influence the discharge of such office.

(b)	The source of any money held in the Ansbacher accounts for the benefit or in the name of Mr. Charles Haughey or any other person who holds or has held Ministerial office, or in any other bank accounts discovered by the Tribunal to be for the benefit or in the name of Mr. Haughey or for the benefit or in the name of a connected person within the meaning of the Ethics in Public Office Act, 1995, or for the benefit or in the name of any company owned or controlled by Mr. Haughey.

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(c)	Whether any payment was made from money held in any of the accounts referred to at to any person who holds or has held public office.

(d)	Whether Mr. Charles Haughey did any act or made any decision in the course of his Ministerial offices, to confer any benefit on any person making a payment referred to in paragraph (a) or any person who was the source of money referred to in paragraph (b) or any other person in return for such payments being made or procured or directed any other person to do such an act or make such a decision.

(e)	Whether any substantial payments were made directly or indirectly to Mr. Michael Lowry (whether or not used to discharge monies or debts due by Mr. Michael Lowry or due by any company with which he was associated or due by any connected person to Mr. Michael Lowry within the meaning of the Ethics in Public Office Act, 1995 or discharged at his direction), during any period when he held public office in circumstances giving rise to a reasonable inference that the motive for making the

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payment was connected with any public office held by him or had the potential to influence the discharge of such office.

(f)	The source of any money held in the Bank of Ireland, Thurles branch, Thurles, Co. Tipperary, the Allied Irish Bank in the Channel Islands, the Allied Irish Banks, Dame Street, Dublin, the Bank of Ireland (I.O.M.) Limited in the Isle of Man, the Irish Permanent Building Society, Patrick Street branch, Cork or Rea Brothers (Isle of Man) Limited, in accounts for the benefit or in the name of Mr. Lowry or any other person who holds or has held Ministerial office or in any other bank accounts discovered by the Tribunal to be for the benefit or in the name of Mr. Lowry or for the benefit or in the name of a connected person within the meaning of the Ethics in Public Office Act, 1995, or for the benefit or in the name of any company owned or controlled by Mr. Lowry.

(g)	Whether Mr. Lowry did any act or made any decision in the course of any Ministerial office held by him to confer any benefit on any person making a payment referred to

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sin paragraph (e) or any person who was the source of any money referred to in paragraph (j) or any other person in return for such payments being made or procured or directed any other person to do such act or make such decision.

(h)	Whether any payment was made from money held in any of the bank accounts referred to in (j) to any person who holds or has held public office.

(i)	Whether any holder of public office for whose benefit money was held in any of the accounts referred to at (b) or (f) did any act, in the course of his or her public office, to confer any benefit on any person who was the source of that money, or directed any person to do such an act.

(j)	Whether the Revenue Commissioners availed fully, properly and in a timely manner in exercising the powers available to them in collecting or seeking to collect the taxation due by Mr. Michael Lowry and Mr. Charles Haughey of the funds paid to Michael Lowry and/or Garuda Limited trading as Streamline Enterprises

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identified in Chapter 5 of the Dunnes Payments Tribunal Report and any other relevant payments or gifts identified at paragraph (e) above and the gifts received by Mr. Charles Haughey identified in Chapter 7 of the Dunnes Payments Tribunal Report and any other relevant payments or gifts identified at paragraph (a) above. And further in particular, in the light of its findings and conclusions, to make whatever broad recommendations it considers necessary or expedient:-

(k)	to ensure that the integrity of public administration is not compromised by the dependence of party politics on financial contributions from undisclosed source;

(1)	for the reform of the disclosure, compliance, investigation and enforcement provisions of company law (including in particular those which relate to directors’ duties);

(m)	for maintaining the independence of the Revenue Commissioners in the performance of their functions while at the same time ensuring the greatest degree of openness

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and accountability in that regard that is consistent with the right to privacy of compliant taxpayers;

(n)	for enhancing the role and performance of the Central Bank as regulator of the banks and of the financial services sector generally;

(o)	for the effective regulation of the conduct of their members by such professional accountancy and other bodies as are relevant to these terms of reference, for the purpose of achieving the highest degree of public confidence, and

(p)	for the protection of the State’s tax base from fraud or evasion in the establishment and maintenance of offshore accounts, and to recommend whether any changes in the tax law should be made to achieve this end.

‘Payment’ includes money and any benefit in kind and the payment to any person includes a payment to a connected person within the meaning of the Ethics in Public Office Act, 1995.

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‘Person’ includes any natural or legal person or any body of persons whether incorporated or not. 

And that the Tribunal be requested to conduct its enquiries 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 investigations as it thinks fit using all the powers conferred on it under the Acts (including, where appropriate, the power to conduct its proceedings in private), 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;

(ii)	To enquire fully into all matters referred to above in relation to which such evidence may be found to exist, and to report to the Clerk of the Dáil thereupon;

(iii)	In relation to any matters where the Tribunal finds that there is insufficient evidence to warrant proceeding to a fully public inquiry, to report that fact to the Clerk of the

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Dáil and to report in such a manner as the Tribunal thinks appropriate, on the steps taken by the Tribunal to determine what evidence, if any, existed;

(iv)	To report on an interim basis, not later than three months from the date of establishment of the Tribunal or the tenth day of any oral hearing, whichever shall first occur, to the Clerk of the Dáil on the following matters:

the numbers of parties then represented before the Tribunal;

the progress which has been made in the hearing and the work of the Tribunal;

the likely duration (so far as that may be capable of being estimated at that time) of the Tribunal proceedings;

any other matters which the Tribunal believes should be drawn to the attention of the Clerk of the Dáil at that stage (including any matter relating to the terms of reference);

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And that the person or persons selected to conduct the inquiry should be informed that it is the desire of House that -

(a)	the Inquiry be completed in as economical a manner as possible and at the earliest date consistent with a fair examination of the matters referred to it, and 

(b)	 all costs incurred by reason of the failure of individuals to co-operate fully and expeditiously with the Inquiry should, so far as is consistent with the interests of justice, be borne by those individuals.

And that the Clerk of the Dáil shall on receipt of any Report from the Tribunal arrange to have it laid before both Houses of the Oireachtas immediately on its receipt.”

On the 26th day of September, 1997 an order in the following terms was made by An Taoiseach:-

“NOW I, Bertie Ahern, Taoiseach, in pursuance of those Resolutions, and in exercise of the powers conferred on me by Section 1 (as adapted by or under subsequent enactments) of the Tribunals of Inquiry (Evidence) Act, 1921, hereby order as follows:

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1.	This Order may be cited as the Tribunals of Inquiry (Evidence) Act, 1921 and 1979 (No. 2) Order, 1997.

2.	A Tribunal is hereby appointed to enquire urgently into and report and make such findings and recommendations as it sees fit to the Clerk of the Dáil on the definite matters of urgent public importance set out at paragraphs (a) to (p) of the Resolutions passed by Dáil Éireann on the 11th day of September, 1997 and by Seanad Éireann on the 18th day of September, 1997.

3.	The Honorable Mr. Justice Michael Moriarty, a Judge of the High Court, is hereby nominated to the sole member of the Tribunal.

4.	The Tribunals of Inquiry (Evidence) Act, 1921 (as adapted by or under subsequent enactments) and the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979, shall apply to the Tribunal.

GIVEN under my Official Seal, this
26th day of September 1997.
Signed
TAOISEACH”

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The Report of the Tribunal of Inquiry (Dunnes Payments) referred to in the aforesaid Resolution was the Report of a Tribunal appointed by the then Taoiseach, Mr. John Bruton, on the 7th day of February, 1997 (and hereinafter referred to as the McCracken Tribunal) subsequent to Resolutions passed by Dáil Éireann on the 6th day of February, 1997.

In essence the terms of reference of the McCracken Tribunal were:-

“To enquire 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:-

(a)	all payments in cash or in kind directly or indirectly whether authorised or unauthorised within or without the State which were made to or received by

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(i)	persons who were between 1st January 1986 and 31st December 1996, members of the Houses of the Oireachtas,

(ii)	their relatives or connected persons as defined in the Ethics in Public Office Act, 1995,

(iii) 	Political parties

from Dunnes Holding Company and/or any associated enterprises.....and/or Mr. Ben Dunne or any person on his behalf or any companies trusts or other entities controlled directly or indirectly by Mr. Ben Dunne between 1st January 1986 and 31st December, 1996 and the considerations, motives and circumstances therefor.”

The McCracken Tribunal presented its Report to the Taoiseach on the 25th day of August, 1997.

It appears from the said Report that it was established that:

“21.	Mr. Ben Dunne made four payments for the benefit of Mr. Charles Haughey amounting in all to some £1.1 million at the

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request of Mr. Desmond Traynor, which request was transmitted through Mr. Noel Fox.

22.	In addition, Mr. Ben Dunne personally handed three bank drafts for £70,000 sterling each to Mr. Charles Haughey in November 1991 as a spontaneous gesture, and without any request for funds having been made to him.

23.	All of the initial £1.1 million was ultimately paid through Mr. Desmond Traynor into an account of a Cayman Islands bank known as Ansbacher Cayman Limited with Guinness & Mahon (Ireland) Limited in Dublin, having been routed through various accounts in England. The three bank drafts constituting the final payment of £210,000 sterling were lodged by Mr. Desmond Traynor directly to an account of Ansbacher Cayman Limited with Irish Intercontinental Bank in Dublin.

24.	The first payment of £182,630 sterling was transferred from the account of Ansbacher Cayman Limited to an account of Amiens Investments Limited with Guinness & Mahon (Ireland) Limited. Amiens Investments Limited was a company owned and controlled by Mr. Desmond Traynor, and this money was then disbursed for the benefit of Mr. Charles Haughey by Amiens Investments Limited, including a payment of £105,000 to

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Agricultural Credit Corporation to discharge a debt owing by Mr. Charles Haughey to that organisation.

25.	Mr. Desmond Traynor was Chairman of Ansbacher Cayman Limited, which had originally been a subsidiary of Guinness & Mahon (Ireland) Limited at a time when Mr. Desmond Traynor was Deputy Chairman and in effect chief executive of Guinness & Mahon (Ireland) Limited. He acted on behalf of a number of Irish persons who wished to deposit their money off-shore, and deposited the money on their behalf in Ansbacher Cayman Limited. At the same time Ansbacher Cayman Limited deposited the monies which it had received from Irish clients in its own name with Guinness & Mahon (Ireland) Limited. It is not known whether each Irish client had a separate deposit account with Ansbacher Cayman Limited, as it has not been possible to obtain access to the records of that bank, but some form of internal accounting or memorandum accounts exists accounting for the funds of each Irish client.

26.	During his lifetime Mr. Desmond Traynor controlled monies deposited in this manner on behalf of Mr. Charles Haughey with Ansbacher Cayman Limited. Each of the last four payments made by Mr. Ben Dunne, namely the payments of

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£471,000 sterling, £150,000 sterling, £200,000 sterling and £210,000 sterling, were paid into accounts in the name of Ansbacher Cayman Limited and formed part of the monies deposited by Ansbacher Cayman Limited with Guinness & Mahon (Ireland) Limited and Irish Intercontinental Bank. At least two of the memorandum accounts or sub-accounts in Ansbacher Cayman Limited were held for the benefit of Mr. Charles Haughey, being those designated S8 and S9.

27.	After the death of Mr. Desmond Traynor, the monies held on behalf of Mr. Charles Haughey came under the control of Mr. John Furze, who was a joint managing director of Ansbacher Cayman Limited. In about the year 1992 some of these monies were transferred into an account of Hamilton Ross Co. Limited, a company owned and controlled by Mr. John Furze, with Irish Intercontinental Bank.

28.	For many years prior to 1991 Mr. Charles Haughey’s day to day financial affairs were dealt with by his former accountancy firm of Haughey Boland, which paid all his personal and household expenses. It received the necessary funds to pay his expenses from Mr. Desmond Traynor during his lifetime, and after his death from Mr. Pádraig Collery. Such funds were withdrawn

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by Mr. Desmond Traynor or Mr. Padraig Collery initially from the account of Ansbacher Cayman Limited with Guinness & Mahon (Ireland) Limited and Irish Intercontinental Bank and subsequently from the account of Hamilton Ross Co. Limited with Irish Intercontinental Bank.

29.	It has been shown without doubt that the last four payments by Mr. Ben Dunne for the benefit of Mr. Charles Haughey were paid into accounts in the name of Ansbacher Cayman Limited with Guinness & Mahon (Ireland) Limited and Irish Intercontinental Bank, and it has been shown that substantial payments for the benefit of Mr. Charles Haughey were paid out of such accounts. Beyond this, it is not possible to establish whether the payments by Mr. Ben Dunne were used solely to discharge Mr. Charles Haughey’s living and household expenses, or whether such payments may have been used to discharge other substantial debts of Mr. Charles Haughey. Such information could only come from the detailed memorandum accounts or the internal documents of Ansbacher Cayman Limited.”

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The manner in which the Ansbacher Accounts were operated is set forth in detail in Chapter 6 of the said Report.

At page 38 of the Report, the Tribunal reported that:-

“This was a very ingenious system whereby Irish depositors could have their money off-shore, with no record of their deposits in Ireland, and yet obtain an interest rate which was only one eighth of one per cent less than they would have obtained had they deposited it themselves in an Irish bank. It is not the function of this Tribunal to examine these deposits in any detail, and it may well be that a number of the Irish depositors may have been people engaged in international business which was greatly facilitated by having a sterling account abroad which did not require exchange control permission to operate. No doubt there were others who deposited the monies in this way from other motives.

As the client base for these Ansbacher deposits was Irish, it was very important to have the contact person in Ireland. Mr. Desmond Traynor performed that role while he was alive, and while the records of Guinness & Mahon (Ireland) Limited

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merely recorded a large deposit or a number of large deposits in the name of Ansbacher Cayman Limited, Mr. Desmond Traynor appears to have kept a record of the Irish clients of Ansbacher Cayman Limited whose money had been re-deposited in Guinness & Mahon (Ireland) Limited. These records were referred to as memorandum accounts, that is they were in one sense sub-accounts within the deposit made by Ansbacher Cayman Limited, and a memorandum was kept for each such sub-account. Mr. Pádraig Collery, who was particularly skilled at computerising records, was in charge of keeping these memorandum accounts, and according to him, such accounts actually existed when he first joined Guinness & Mahon (Ireland) Limited in 1974. He took over responsibility for keeping the records of these accounts in the late 1970’s. These records were kept by reference to codes, and the name of the Irish client did not appear on any of the records. These records were such that they would be a mirror image of records kept by Ansbacher Cayman Limited in the Cayman Islands.”

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The said ‘memorandum accounts’ were, apparently designated by codes S2 - S9 and by 1989, it appears as stated at Page 39 of the Report, there was some £38 million deposited by Ansbacher Cayman Limited in Guinness & Mahon (Ireland) Limited.

At the conclusion of Chapter 6 of the Report, the McCracken Tribunal reported that:

“While the S8 memorandum may have included monies held beneficially for Mr. Charles Haughey and others, the S9 account appears to have been used exclusively for Mr. Haughey’s benefit..”

The McCracken Tribunal further reported at page 73 that:-

“The Tribunal also cannot believe that Mr. Charles Haughey was not aware of the taxation implications of the receipt of gifts of this magnitude from Mr. Ben Dunne, but rather believes that Mr. Charles Haughey deliberately shrouded the gifts in secrecy and allowed the money to be kept offshore in an attempt to ensure that the Revenue authorities would never know of the

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gifts, or indeed presumably of the existence of interest paid on the monies deposited on his behalf.

It is quite unacceptable that a member of Dáil Éireann, and in particular a Cabinet Minister and Taoiseach, should be supported in his personal lifestyle by gifts made to him personally. It is particularly unacceptable that such gifts should emanate from prominent businessmen within the State. The possibility that political or financial favours could be sought in return for such gifts, or even be given without being sought, is very high, and if such gifts are permissible, they would inevitably lead in some cases to bribery and corruption.

It is also not acceptable that any person or commercial enterprise should make such gifts in conditions of secrecy, no matter how well intentioned the motives may have been.

There is no evidence of any favours sought of Mr. Charles Haughey by Mr. Ben Dunne, the Dunne family or the Dunnes Stores Group, nor is there any evidence of any attempt by Mr. Charles Haughey to exercise his influence for the benefit of Mr. Ben Dunne, the Dunne family or the Dunnes Stores Group.

There appears in fact to have been no political impropriety on

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the part of Mr. Charles Haughey in relation to these gifts but that does not take away from the unacceptable nature of them.”

The publication of the said report and disclosure of the facts contained therein gave rise to serious public concern which fact was recognised by both Houses of the Oireachtas as disclosed in the resolution passed by them which begins with the statement:-

‘Bearing in mind serious public concern arising from the Report of the Tribunal of Inquiry (Dunnes Payments) published on the 25th August, 1997 which established that irregular payments were made to and benefits conferred on certain persons who were members of the Oireachtas between 1st January, 1986 and 31st December 1996.”

Both Houses of the Oireachtas resolved that it was expedient that a Tribunal be established for inquiring into the definite matters described in the Resolution as of urgent public interest and in pursuance of the Resolution a tribunal was appointed for the purpose by the Taoiseach.

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The instrument by which the Tribunal was appointed provided that:-

“The Tribunals of Inquiry (Evidence) Act, 1921 (as adapted by or under subsequent enactments) and the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979 shall apply to the Tribunal.”

It appears from the terms of the Interim Report made by the Tribunal to the Taoiseach that -

(i)	the Tribunal sat on the 31st day of October, 1997 and full representation for the duration of the Inquiry was granted to the Revenue Commissioners and that limited representation was granted to Mr. Michael Lowry, Mr. Pádraig Collery and the Institute of Chartered Accountants in Ireland;

(ii)	It was intimated to the Tribunal by a representative of the Office of the Chief State Solicitor that the Attorney General wished to reserve his rights in relation to seeking to have the public interest represented before the Tribunal and leave was

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granted for an application in this regard to be renewed in due course.

(iii)	at a subsequent hearing on the 16th day of December, 1997 limited representation was granted to one Ms. Joan Williams.

It does not appear from the said Report that there were any other sittings in public or that any other business has been transacted by the Tribunal in public.

The said Report further stated that:-

“Given the nature of its task and the diversity of issues raised in its terms of reference, the Tribunal itself has had to assume the task of endeavouring to collect evidence and information which might lead to evidence. In this regard and conscious of the fact that financial institutions and other persons would be required to disclose information and documents of a confidential nature, the Tribunal formed the opinion that it is in the public interest expedient that this aspect of its proceedings be conducted in private. Accordingly, the Tribunal has in this regard exercised its discretion under Section 2(a) of the Tribunal of Inquiry

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(Evidence) Act, 1921 as amended by the Tribunal of Inquiry (Evidence) (Amendment) Act, 1979.”

Between the 20th day of November, 1997 and the 17th day of December 1997 the Tribunal made a number of orders directing financial institutions and others to make discovery on oath of all documents including, (without prejudice to the generality of that term) all statements of accounts, mandates, ledger books, agreements, correspondence, security documents, guarantees, memoranda, computer or other records or documents of any description whatsoever within the power, possession or procurement of the institution, relating to Mr. Charles J. Haughey, or any person who is or was connected with him as defined by Section 2(12) of the Ethics in Public Service Act, 1995, including the persons listed in the First Schedule to the Orders.

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The Order made on the 20th November, 1997 directed to the Secretary of the Anglo Irish Bank Corporation Plc. is illustrative of the orders of this kind made by the Tribunal and is set forth hereunder.

“TRIBUNAL OF INQUIRY
(PAYMENTS TO MESSRS. C. HAUGHEY AND M. LOWRY)

Appointed by Instrument of An Taoiseach dated 26th day of September 1997 pursuant to the Tribunals of Inquiry (Evidence) Acts, 1921 and 1979

WHEREAS at a sitting of the Tribunal held in the absence of the public at Dublin Castle pursuant to section 2(a) of the Tribunals of Inquiry (Evidence) Act 1921 on Thursday, 20th November, 1997 the following persons attended:

Ms. O’Brien of Counsel nominated by the Tribunal to act on its behalf Mr. Davis, Solicitor to the Tribunal

And on the Application of Counsel for the Tribunal IT IS ORDERED that the Secretary of Anglo Irish Bank Corporation plc. do on or before 5.00 p.m. on 26th November 1997 or within such further time as may be allowed by the Tribunal, make discovery on oath of all documents (including, without prejudice to the generality of

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that term) all statements of account, mandates, ledger books, agreements, correspondence, security documents, guarantees, memoranda, computer or other records or documents of any description what so ever within the power, possession or procurement of the said Anglo Irish Bank Corporation plc. relating to:

(a)	All accounts held with Anglo Irish Bank Corporation plc. at any branch within the State, at any time since 1st January, 1974 in the name of or for the benefit of Mr. Charles J. Haughey whether held solely or jointly with another or others or over which he has or had any control or influence direct or indirect.

(b)	All accounts held with Anglo Irish Bank Corporation plc. at any branch within the State, at any time since 1st January, 1974 in the name of or for the benefit of any person, natural or legal, who is or was at any time connected to Mr. Haughey as defined by section 2(2) of the Ethics in Public Office Act, 1995 including in particular the persons listed in the first schedule to the herein order.

(c)	All credit facilities afforded to or for the benefit of Mr. Haughey by Anglo Irish Bank Corporation plc. at any branch within the State, at any time since 1st January,

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1974 including, but without prejudice to the generality of the forgoing, all forms of accommodation whether by letter of comfort, back to back or other credit arrangement.

(d)	All credit facilities afforded by Anglo Irish Bank Corporation plc. at any branch within the State, at any time since 1st January, 1974 including, but without prejudice to the generality of the forgoing, all forms of accommodation whether by letter of comfort, back to back or other credit arrangement to or for the benefit of any person, natural or legal, who is or was at any time connected to Mr. Haughey as defined by section 2(2) of the Ethics in Public Office Act, 1995 including in particular the persons listed in the first schedule to the herein order.

AND IT IS ORDERED that the Secretary of Anglo Irish Bank Corporation plc. do on or before 5.00 p.m. on 26th November 1997 produce to the Solicitor acting for the Tribunal copies of all documents which fall within the scope of the within order for discovery, which the said Secretary, is currently aware are in the possession of Anglo Irish Bank Corporation plc.

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AND IT IS FURTHER ORDERED that Anglo Irish Bank Corporation plc. or any person interested in any of the documents falling within the herein order for discovery, to have liberty to apply forthwith to the Sole Member of the Tribunal sitting at Dublin Castle in the City of Dublin for an order varying or discharging the within order.

Signed

The Honorable Mr. Justice Michael Moriarty 
Sole Member of the Tribunal

FIRST SCHEDULE

Maureen Haughey
Sean Haughey
Conor Haughey
Ciaran Haughey
Eimear Mulhern (nee Haughey)
Larchfield Limited
Abbeville Homesteads Limited
Celtic Helicopters Limited
Mr. James Desmond Traynor, deceased

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Any other person, natural or legal, to whom Mr. Haughey is or was connected within the meaning Section 2(2) of the Ethics in Public Office Act, 1995.”

No notice of the intention to make the said Orders of Discovery was given to the institution or person to which it was directed or to the persons affected thereby including the persons named in the Schedule thereby depriving them the opportunity to make any representations to the Tribunal with regard to the necessity or otherwise for the making of the said Orders or with regard to the extent thereof.

Neither was the order served on anybody other than the institution or person to which it was directed.

The order provided in the last paragraph thereof that the institution

“or any person interested in any of the documents falling within the herein order for discovery”

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would have liberty to apply forthwith to the Sole Member of the Tribunal sitting at Dublin Castle in the City of Dublin for an order varying or discharging the within Order.

Having regard to the time limited in the said orders for compliance therewith and the failure to serve a copy of the order on any person interested, such as the Plaintiffs that concession was not of any real use.

The said orders were made in private upon application to the Tribunal by Counsel to the Tribunal.

The Plaintiffs’ Claims

On the 18th day of December, 1997 proceedings were instituted in the High Court by the Plaintiffs herein by Plenary Summons.

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The relief claimed on behalf of the Plaintiffs and the basis therefor is set forth in the Amended Statement of Claim delivered on the 14th day of January, 1998.

The said Statement of Claim referred to the resolution passed by Dáil Éireann on the 11th day of September 1997 and by Seanad Éireann on the 18th day of September 1997 and to the fact that the Taoiseach by order of the 26th September 1997 appointed the first named Defendant to be sole member of a Tribunal of Inquiry to inquire into the matters set out in the aforesaid resolutions and alleged that:-

“Neither the Dáil nor Seanad was properly convened on the said dates and the Resolutions and Order are consequently null and void and of no effect.”

The allegation that the Dáil was not properly convened was withdrawn by letter dated the 9th January 1998. However, the allegation that Seanad Éireann was not properly convened on the 18th September,

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1997 was persisted with on the grounds that the Taoiseach did not tender an advice to the President in respect of the convening of Seanad Éireann in accordance with Article 18.8 of the Constitution and accordingly the President did not have power to fix a day for the first sitting of the Seanad following the General Election.

At paragraph 12 of the said amended Statement of Claim the Plaintiffs contended that the provisions of the Tribunal of Inquiry (Evidence) Act, 1921 as amended infringed the provisions of Article 34.1 of the Constitution and are repugnant to the Constitution and/or were not carried into law in the State under Article 50 of the Constitution.

This portion of the Plaintiffs’ claim has been dealt with in the judgment of the Court already delivered.

In the alternative the Plaintiffs contended at Paragraph 13 that:-

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“in passing the said resolution and identifying the matters to be inquired into the Dáil and Seanad acted in breach of the provisions of the Constitution in directing the Taoiseach to establish the Tribunal of Inquiry and in particular in breach of the following constitutional guarantees provided to the Plaintiffs:-

Article 40.1	the guarantee of equality before the law;	
Article 40.3	the guarantee that the State will by its laws defend and vindicate the Plaintiffs’ good name;	
Article 40.3	the guarantee that the State by its laws will protect the Plaintiffs’ property rights;	
Article 40.3	the guarantee that the State will by its laws respect and defend and vindicate the Plaintiffs’ personal right to privacy;	
Article 15.5	the provision against the application of legislation retrospectively;	
Article 15.13	the first Plaintiffs’ right to privilege in respect of any utterance in the Dáil.”	

The Statement of Claim then stated:-

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“Further, the alleged definite matters of urgent public importance which are identified in the aforesaid resolutions, are not in fact either definite matters or matters of urgent public importance, particularly in the light of the findings of the Report of the Tribunal of Inquiry (Dunnes Payments) which has already given recommendations in relation to the subject matter of the said resolutions and the resolutions are ultra vires the provision of the said Act of 1921 (as amended). Further the terms of reference are so vague or ambiguous as to be ultra vires the said Act.”

The remainder of the statement of claim relates to the manner in which the Inquiry has been and is being conducted by the first named Defendant and will be dealt with at a later stage in this judgment.

The Plaintiffs then claimed:-

a)	A declaration that the Tribunals of Inquiry (Evidence) Act 1921 (as amended) is repugnant to the provision of the Constitution.

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b)	A declaration that Dáil Éireann and Seanad Éireann acted unconstitutionally in directing the Taoiseach to establish a Tribunal of Inquiry into the matters set out in the resolutions of Dáil Éireann of the 11th September 1997 and Seanad Éireann of the 18th September 1997.

c)	Alternatively, a declaration that the Order of An Taoiseach of the 26th September 1997 purporting to establish the said Tribunal is ultra vires the powers conferred upon the Houses of the Oireachtas by the Tribunals of Inquiry (Evidence) Act, 1921 (as amended) and/or not properly made in accordance with the provisions of the said Act.

d)	An injunction restraining the first Defendant from inquiring into those matters set out a paragraphs (a), (b), (c), (d), (i) and (j) of the said resolution of Dáil Éireann and Seanad Éireann as set out in the said Order of An Taoiseach, which said resolutions and Order are an Appendix hereof

e)	A declaration that the first named Defendant in the manner in which he is conducting the Tribunal of Inquiry is acting in breach of the Plaintiffs’ constitutional rights,

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and/or ultra vires the power conferred on him-by the Tribunals of Inquiry (Evidence) Acts 1921-1997. 
f)	An order quashing the orders of discovery made by the first named Defendant in so far as same relate to the affairs of the Plaintiffs, or, in the alternative, a declaration that said orders are of no legal effect.

g)	The first named Defendant, Mr. Justice Michael Moriarty is sued in his capacity as Sole Member of the Tribunal of Inquiry appointed by order of An Taoiseach of 26th September 1997.

h)	The second named Defendant, the Clerk of Dáil Éireann and the third named Defendant, the Clerk of Seanad Éireann are sued in their respective capacities as Clerk of the Dáil and Seanad respectively.

i)	Further and other orders.

j)	an order providing for costs.”

The Plaintiffs’ claim was heard in the High Court by Mr. Justice Geoghegan who delivered judgment on the 28th day of April 1998.

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For the reasons set forth by him in the course of the said judgment, the learned trial judge refused the specific Declarations and Orders sought in the amended statement of claim (which have already been set forth herein), but made the following limited declarations:-

1.	A Declaration that the Plaintiffs are entitled, if they so request, to have a prima facie explanation from the Tribunal of any relevant ambiguities arising in the terms of reference.

2.	A Declaration that the second, third, fourth and fifth named Defendants and each of them was entitled to be given a reasonable opportunity to object to Orders of Discovery by the Tribunal in respect of their bank accounts.

Appeal

The Plaintiffs have appealed to this Court for

A.	An order setting aside the judgment and order of the High Court save in so far as the said Order provided that the Court made the Declaration at (2) therein.

B.	An Order in lieu thereof

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(a)	Declaring that the Tribunals of Inquiry (Evidence) Act, 1921 (as amended) is repugnant to the provisions of the Constitution;

[This claim has been dealt with by the Court in its decision pronounced earlier.]

(b)	Declaring that Dáil Éireann and Seanad Éireann acted unconstitutionally in directing the Taoiseach to establish a Tribunal of Inquiry into the matters set out in the resolutions of Dáil Éireann of the 11th September 1997 and Seanad Éireann of the 18th September, 1997;

(c)	Alternatively, declaring that the Order of An Taoiseach of the 26th September 1997 purporting to establish the said Tribunal is ultra vires the powers conferred upon the Houses of the Oireachtas by the Tribunals of Inquiry (Evidence) Act, 1921 (as amended) and/or not properly made in accordance with the provisions of the said Act;

(d)	Restraining the first named Defendant/Respondent from inquiring into those matters set forth in paragraphs (a) (b),

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(c), (d), (i) and (f) of the said resolution of Dáil Éireann and Seanad Éireann as set out in the said order of An Taoiseach;

(e)	Declaring that the first named Defendant/Respondent in the manner in which he is conducting the inquiry is acting in breach of the Plaintiffs’/Appellants’ constitutional rights, and/or ultra vires the power conferred on him by the Tribunals of Inquiry (Evidence) Acts 1921 - 1997.

(f)	quashing the Orders of Discovery made by the first named Defendant/Respondent, or, in the alternative, a declaration that said orders are of no legal effect.

C.	An order awarding the costs of these proceedings and of the proceedings in the High Court together with all reserved costs to the Plaintiffs/Appellants.

The grounds of appeal are set forth in detail in the Notice of Appeal dated the 6th day of May, 1998.

It is not necessary at this stage to set them forth as they will be dealt with in the course of the consideration of the issues raised thereby.

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Power of the Taoiseach to appoint a Tribunal for the purposes of the 1921 Act (as amended)

A question arose during the course of the hearing as to whether a tribunal appointed by the Taoiseach could exercise the powers conferred on Tribunals of Inquiry appointed under the 1921 Act (as amended).

At the time of the enactment of the 1921 Act, accordingly, a tribunal could be vested with the powers under the 1921 Act only where it was appointed by the Crown acting on the advice of the Government or a Secretary of State, which latter expression, under s.12(3) of the Interpretation Act 1889, meant, unless a contrary intention appeared, one of the “Principal Secretaries of State”.

Clearly, these provisions were not operable as enacted following the coming into being of the Irish Free State, the Constitution of which provided for the establishment of the Executive Council as the effective

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organ of Government. That Council initially consisted of ten ministers nominated by the President of the Executive Council with the assent of Dáil Éireann. There was no precise correspondence between the Departments allocated to those Ministers pursuant to the Constitution and at a later stage in accordance with the provisions of the Ministers and Secretaries Act 1924 and the remits of the Secretaries of State.

However, in exercise of powers conferred on them by s.12 of the Adaptation of Enactments Act 1922, the Executive Council made two orders adapting or modifying the relevant provisions of the 1921 Act. The first (the Tribunals of Inquiry (Evidence) Act 1921 Adaptation Order 1930) (SRO No. 48 of 1930) provides at para. 3 that:-

“The reference contained in s.s.(1) of the s.1 of the Tribunals of Inquiry (Evidence) Act 1921 to His Majesty shall be construed as a reference to the Governor General of the Irish Free State

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acting on the advice of the Executive Council of the Irish Free State and the said Act shall have effect accordingly.”

The second (The Tribunals of Inquiry Evidence) Act 1921 Adaptation Order 1936) (SRO No. 25 of 1936) provides that:-

“s.s. (1) of s.1 of the Tribunals of Inquiry (Evidence) Act 1921 shall be and is hereby adapted by the insertion therein of the words ‘A Minister who is for the time being a member of the Executive Council of Saorstat Éireann’ in lieu of the words ‘a Secretary of State’ now contained therein and the said section shall be construed and have effect accordingly.”

Section 2(1) of the Executive Power (Consequential Provisions) Act 1937 (which was enacted following the abolition of the office of Governor General) provides that:

“Every power, function, duty and jurisdiction which... was... capable of being exercised... by the Representative of the Crown... shall be... transferred to and (as the case may be)

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capable of being exercised by or required to be performed by the Executive Council...”

Following the enactment of the present Constitution, that power was vested - and remains vested - in the Government by virtue of s.4(1) of the Constitution (Consequential Provisions) Act 1937. While sections 6 (1) of the Executive Powers (Consequential Provisions) Act 1937 empowered the Executive Council to transfer by order to any “Executive Minister” any of the powers of the Executive Council, that power appears never to have been exercised so as to transfer the power of the Executive Council to appoint a tribunal under the 1921 Act to the President of the Council.

Article 52 of the Constitution of the Irish Free State makes it clear that the President of the Executive Council was to be one of the Ministers forming the Executive Council and this was given statutory

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form in s.1 of the Ministers and Secretaries Act 1924. Accordingly, it would appear that the effect of the Adaptation Order made in 1936 was to include the President of the Executive Council (and subsequently the Taoiseach) among the Ministers in whom the power to appoint a Tribunal under the 1921 Act was vested.

However, the 1921 Act itself did not provide any such role for the Prime Minister; the powers could be exercised only by the Government or one of the Secretaries of State, among whom the Prime Minister was not included. It would seem, accordingly, that the adaptation or modification effected by the second Order was more in the nature of an amendment of the 1921 Act and the terms of the parent Act require examination in order to determine whether the Order was intra vires the powers of the Executive Council.

S.12(1) of the Adaptation of Enactments Act 1922 provided that:-

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“The Executive Council of Saorstát Éireann may from time to time by order make all such general or specific adaptations of or modification in any British statute which in the opinion of the Executive Council are necessary in order to enable such statute to have full force and effect in Saorstát Éireann.”

The Executive Council did not avail of this power so as to exclude the President of the Executive Council from the Ministers in whom were to be vested the powers under the 1921 Act. If the office of President of the Executive Council had corresponded exactly to the position of the British Prime Minister, a question might arise as to whether the power of adaptation could be exercised so as to confer on a particular office holder a power which it was not the intention of the relevant legislation that he or she should enjoy. But it is unnecessary to consider whether, in such circumstances, the Adaptation Order might have to be construed so as to exclude the President, because it is quite clear that there were significant

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differences between the office of President of the Executive Council newly created by the 1922 Constitution and the office of Prime Minister in Great Britain. As Professor Basil Chubb has pointed out in Cabinet Government in Ireland at p. 25: -

“...The President of the Executive Council was apparently not intended to have the position of a British Prime Minister: on the contrary, the wording of the Constitution suggested a desire to give him a lesser status. As we have seen, he was not intended to have a free hand in choosing his colleagues and was required to resign if defeated. Moreover, the right to obtain a dissolution of the Dáil in circumstances in which his Government remained undefeated - an important tactical weapon for a leader - was not accorded to him, since it was a power entrusted to the Executive Council as a whole. As Professor Nicholas Mansergh observed:-

‘The effect is to deprive the head of the Council of those powers which par excellence distinguish his position from that of his colleagues.

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It is, accordingly, clear that the expression “a Secretary of State” was effectively modified so as to include the President of the Executive Council. By virtue of s.3 of the Constitution (Consequential Provisions) 1937, the references to the President in the Adaptation Order are to be read as a reference to the Taoiseach.

The powers under the 1921 Act are thus exercisable by the Government or any Minister, including the Taoiseach.

Resolution and Order
Irrespective of the question of the jurisdiction of the Houses of the Oireachtas to pass a resolution and of the Taoiseach to make the Order complained of it was claimed and submitted on behalf of the Plaintiffs/Appellants that:-

(1) “In passing the said resolution and identifying the matters to be inquired into, the Dáil and Seanad acted in breach of the Constitution

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in directing the Taoiseach to establish the Tribunal of Inquiry” and that:-

(2) The alleged definite matters of urgent public importance which are identified in the aforesaid resolutions, are not in fact either definite matters or matters of urgent public importance, particularly in the light of the findings of the Report of the Tribunal of Inquiry (Dunnes Payments) which has already given recommendation in relation to the subject matter of the said resolutions.

(3) The resolutions are ultra vires the provisions of the 1921 Act, and

(4)	The terms of reference are so vague or ambiguous as to be ultra vires of the Act.”

The provisions of the Constitution relied on by the Plaintiffs/Appellants are:

Article 40.1 which provides that:-

“All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.”

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Article 40.3 which provides that:-

“1. 	The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

2.	The State shall in particular, by its laws protect as best it may from unjust attack and in the case of injustice done, vindicate the life, person, good name and property rights of every citizen.”

Article 15.5 provides:-

“The Oireachtas shall not declare acts to be infringements of the law which were not so at the date of their commission.”

Article 15.13 of the Constitution provides that:-

“The members of each House of the Oireachtas shall, except in case of treason as defined in this Constitution, felony or breach of the peace, be privileged from arrest in going to and returning from, and while within the precincts of, either House, and shall not, in respect of any utterance in either House, be amenable to any Court or any authority other than the House itself.”

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The resolutions passed by both Houses of the Oireachtas enjoy the presumption of constitutionality.

As stated by Finlay C.J. in the course of his judgment in the Goodman case at page 586: -

“I am satisfied that the presumption of constitutional validity which has been applied by this Court, in a number of cases, to statutes enacted by the Oireachtas, and to Bills passed by both Houses of the Oireachtas and referred to this Court by the President, applies with equal force to these resolutions of both Houses of the Oireachtas. It seems to me inescapable that having regard to the fact that the presumption of constitutional validity which attaches to both statutes and bills derives, as the authorities clearly establish from the respect shown by one organ of State to another, and by the necessary comity between the different organs of State, that it must apply in precisely the same way to a resolution of both Houses of the Oireachtas, even though it does not constitute legislation.”

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Finlay, C.J. emphasised, however, that the presumption of constitutional validity also, in application to these resolutions, must contain the principle set out by the decision of the Supreme Court in East Donegal Co-operative Livestock Mart Ltd. .v. Attorney General [1970] 1 IR 317 in the judgment delivered by Walsh J. where at p. 341 he stated as follows:-

“At the same time however, the presumption of constitutionality carries with it not only the presumption that the constitutional interpretation or construction is the one intended by the Oireachtas but that the Oireachtas intended that proceedings, procedures, discretions and adjudications which are permitted provided for, or prescribed by an Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice.”

He then stated that:-

“In applying this principle to these resolutions and the issues arising in this case, (viz, the Goodman case) clearly, in so far as

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the applicants contend for a constitutional invalidity in the resolutions setting up the Inquiry, this Court must presume that the proceedings of the Inquiry and the rulings and conduct of the Inquiry by the Tribunal will be in accordance with constitutional justice.”

These passages clearly establish that the resolutions passed by both Houses of the Oireachtas enjoy the presumption of constitutionality and that this Court must presume that the proceedings of the Inquiry will be conducted in accordance with constitutional justice.

In view of the presumption of constitutional validity enjoyed by the Resolutions, the onus is on the Plaintiffs/Appellants to clearly establish that the terms thereof contravene the provisions of the Constitution.

In the first instance it was submitted on behalf of the Plaintiffs/Appellants that the resolution of Seanad Éireann was invalid

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because the Seanad had not been properly convened in accordance with the provisions of Article 18.8 of the Constitution which provides that:-

“A general election for Seanad Éireann shall take place not later than 90 days after a dissolution of Dáil Éireann and the first meeting of Seanad Éireann after the general election shall take place on a day to be fixed by the President on the advice of the Taoiseach.”

It does not appear to be in issue that the President did fix the date of the first meeting of Seanad Éireann after the general election.

The validity of such order however was challenged on the basis of the alleged failure of An Taoiseach to so advise the President.

The Order fixing the sitting of Seanad Éireann was made by the President in the exercise of the powers and functions of her office.

Article 13.8 of the Constitution provides that:-

“1. The President shall not be answerable to either House of the Oireachtas or to any Court for the exercise and performance

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of the powers and functions of his office or for any act done by him in the exercise and performance of these powers and functions.”

This ground of challenge to the validity of the Resolutions must fail.

While the resolutions passed by both Houses of the Oireachtas enjoy the presumption of constitutionality and are entitled to due respect from the judicial organ of Government, the Court is empowered to intervene if the terms of the resolutions and the nature of the Inquiry established in pursuance thereof infringes, without justification the constitutional rights of any person, including the Plaintiffs/Appellants herein.

The Legislature and the Executive are both organs of the State and, as such, are subject to the provisions of the Constitution and in particular to Article 40.3 thereof. In Article 40.3 the State guarantees in

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its laws to respect, and as far as practicable, by its laws to defend and vindicate the personal rights of the citizen. It also guarantees by its laws to protect as best it may, from unjust attack, and, in the case of injustice done, to vindicate the life, person, good name and property rights of every citizen.

In the course of his judgment in Norris .v. Attorney General [1984] IR 36, McCarthy J. stated:-

“I agree with the view expressed by O’Byrne J. in Buckley and Ors. (Sinn Fein) .v. The Attorney General that the power of the State to act for the protection of the common good or to decide what are the exigencies of the common good is not one which is peculiarly reserved for the legislative organ of government, in that the decision of the legislative organ is not absolute and is subject to and capable of being reviewed by the Courts. In concrete terms, that means that the legislature is not free to encroach unjustifiably upon the fundamental rights of individuals or of the family in the name of the common good, or

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by act or omission to abandon or neglect the common good or protection or enforcement of the rights of individual citizens.”

The Court also agrees with this view.

Such obligations obviously extend to the passing of resolutions of both Houses of the Oireachtas which have been favoured with the presumption of constitutional validity.

It is submitted on behalf of the Plaintiffs/Appellants that the Resolution passed by both Houses of the Oireachtas, and in particular the inquiries directed in (a), (b), (c), (d) and (i) thereof were invalid and ultra vires the jurisdiction vested in the Houses of the Oireachtas because the terms thereof:-

(1)	were arbitrary vague and oppressive;

(2)	did not identify either a definite matter nor indeed any matter of urgent public importance;

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(3)	were not in aid of the legislative process;

(4)	violated the constitutional right to privacy enjoyed by the persons affected thereby including the “connected persons”;

(5)	discriminated against the first named Plaintiff/Appellant, thereby violating his constitutional right to equality of treatment;

(6)	violated the Plaintiffs/Appellants’ right to fair procedure;

(7)	violated the constitutional privileges of the first named Plaintiff/Appellant as Taoiseach or as a Minister;

and

(8)	empowered the Tribunal to adjudicate on matters of ethics which should not properly be the subject of an adjudication by a tribunal of this nature.

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Nature of Inquiry in the Present Case

Before dealing with these specific grounds, it is necessary to outline the nature of the Inquiry in the present case.

It is claimed on behalf of the Plaintiffs/Appellants that the inquiry mandated by the Resolution and Order made in the present case is ultra vires the 1921 Act with the result that it was not within the competence of the Taoiseach to make an order applying the provisions of the 1921 Act to the Tribunal. The provisions of the 1921 Act, it is urged, can only be invoked in aid of the legislative process and as a last resort.

In support of that objection, it was argued that, if the intention of, establishing the Tribunal was to reform the political system as to the making of payments to politicians or political parties, the terms of reference would not have been confined to the private finances of the appellants and Mr. Lowry. A tribunal such as the present could not be

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legitimately established, it was said, to satisfy what was described as the ‘prurient interest’ of the media and the public or to punish the first named appellant and Mr. Lowry. In particular, reference was made to the decision of the United States Supreme Court in Watkins v. US [1956] 354 US 178, in which Warner J. stated:-

“In conducting investigations, Congress is not a law enforcement or trial agency and no inquiry is an end in itself but it must be related to a legitimate task of Congress.”

It may be the case - and is almost invariably the case - that a tribunal established under the 1921 Act is empowered to make recommendations as to legislative or administrative reforms which appear to it to be desirable having regard to its findings. That is so in the case of the tribunal now under consideration. But it is by no means the only purpose for which such a tribunal may be established. In the report of the Royal Commission of Tribunals of Inquiry 1966 in the United

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Kingdom, under the Chairmanship of Lord Justice Salmon, as he then was (hereafter “the Salmon Report”), the following passage appears at para. 27: -

“The exceptional inquisitorial powers conferred upon a tribunal of inquiry under the Act of 1921 necessarily exposed 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 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.”

And again at para. 28: -

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“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, if it exists, shall be exposed so that it may be rooted out; or if it 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 public investigation by a inquisitorial tribunal possessing the powers conferred by the Act of 1921.”

Those considerations are also applicable in this jurisdiction. There are various models which may be availed of by the Oireachtas and the Executive in the form of Commissions or Committees, in the latter case, either within the Oireachtas or external to it, for the purpose of advising them as to the desirability of legislation on particular topics. The

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essential purpose, however, for which a Tribunal is established under the 1921 Act is to ascertain the facts as to the matters of urgent public importance which it is to enquire into and report those findings to parliament or the relevant Minister.

It may or may not be empowered to make recommendations as to reforms in the law which appear desirable in the light of its findings. Historically, however, both in the United Kingdom and Ireland the principal function of such tribunals has been to restore public confidence in the democratic institutions of the State by having the most rigorous possible inquiry consistent with the rights of the citizens into the circumstances which gave rise to the public disquiet. It is clear from the Salmon Report and the helpful study of the work of such tribunals in England by George W. Keeton Trial by Tribunal that prior to the enactment of the 1921 Act the only machinery available to enquire into

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major political scandals was an investigation by a select committee of parliament. The inherent defects in that procedure were recognised as long ago as 1888 when the Special Commission Act 1880 was passed in order to enable a Commission to enquire into the allegations that Parnell and other leading members of the Irish parliamentary party had been involved in criminal activities. They were graphically illustrated in the Marconi Affair in 1912 when the select committee - and the House of Commons itself - divided along strict party lines in considering whether prominent members of the then liberal government had improperly profited from certain transactions resulting from the award of contracts by the government to the Marconi company.

The underlying policy of the 1921 Act as subsequently amended is thus not in doubt. It is to provide the machinery, wholly independent of the political process, whereby matters of grave public concern may be

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investigated and the true facts brought to light. Such an inquiry, generally but not necessarily conducted by one or more judges, typically takes the form of an investigation such as the present into circumstances which have raised the possibility of corruption or other impropriety in public life. The terms of the legislation, however, do not restrict the Oireachtas and the Executive to initiating such an inquiry to that area: the “definite matters” of “urgent public importance” can obviously extend to disasters involving loss of life and serious injury such as were the subject of the Whiddy Island Disaster Report [1979] and the Stardust Fire Report [1982].

The submission that the establishment of the inquiry in the present case was ultra vires the 1921 Act since, as was claimed, it is not in aid of the legislative process is unsustainable. Nor does it derive any support from the decision of the United States Supreme Court in Watkins v. US,

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which was concerned with the very different procedures available to Congress in that jurisdiction.

As to the submission that the powers under the 1921 Act should only be used as a “last resort”, there is no room for doubt but that matters referred to in the terms of reference are “of urgent public importance”. 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 Another v. Hamilton [1992] 2 IR 543 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 State to another and from the

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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”. The submission that the Oireachtas should have availed of other forms of inquiry, such as a select committee of one or both Houses, is, accordingly, also unsustainable.

(1)	“Arbitrary, vague and oppressive

It was submitted on behalf of the Plaintiffs/Appellants that the terms of the resolution were ultra vires the powers of both Houses of the Oireachtas as being “arbitrary, vague and oppressive” and that they did not identify a matter of urgent public importance.

The learned High Court Judge in the course of his judgment expressed his views as to how the terms of reference set out in the

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resolution should be interpreted. The Court does not find it necessary to express any opinion as to whether the terms of reference are capable of more than one construction and, if so, whether that adopted by the learned High Court Judge is correct, because the Court is satisfied that it is not the function of the High Court or this court to interpret the terms of reference of the Tribunal at this stage. The interpretation of the terms of reference of the Tribunal is, at this stage, entirely a matter for the Tribunal itself.

The Salmon Report stated at para 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.”

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The Court adopts that as a correct statement of the law and practice applicable to such tribunals in this jurisdiction. Accordingly, it does not find it necessary to decide whether any of the terms of reference are properly characterised as “vague” it will be for the Tribunal to determine, assuming that they are capable of more than one interpretation, which is to be the interpretation to be preferred in the light of the circumstances then prevailing.

The terms of the Resolution passed by both Houses of the Oireachtas clearly indicated the matters which they considered of urgent public importance.

This fact is clear from the recitals at the beginning of the Resolution which state:-

“Bearing in mind serious public concern arising from the report of the Tribunal of Inquiry (Dunnes Payments) published on 25 August, 1997 which established that irregular payments were

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made to and benefits conferred on certain persons who were members of the House of the Oireachtas between 1 January 1986 and 31st December 1996 (namely the first-named Plaintiff/Appellant and Mr. Michael Lowry).

And noting that the said Tribunal established that money was held on deposit in certain Irish banks by offshore banks in memorandum accounts (“the Ansbacher accounts’) for the benefit of Irish citizens including Mr. Charles Haughey (the history of which deposits is set out in Chapter 6 of the Report of the said Tribunal) and noting further that the Dunnes Payments Tribunal was unable by reason of its terms of reference to investigate the source of the Ansbacher accounts, other than in respect of sums paid by certain persons referred to in the said terms of reference.”

The disclosures contained in the said Report undoubtedly caused public disquiet, which was recognised by both Houses of the Oireachtas who considered it necessary for the purposes of allaying such public disquiet to resolve as provided in the said Resolution.

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It cannot be suggested that the matters referred to therein were not of urgent public importance and that it was not within the jurisdiction of both Houses of the Oireachtas so to regard them and of the Taoiseach to appoint a Tribunal, whose principal function was to restore public confidence in our democratic institutions by having the most rigorous possible inquiry, consistent with rights of the citizens concerned into the circumstances which have given rise to the public disquiet in the present case.

In passing such resolutions, the Houses of the Oireachtas cannot be said to be acting arbitrarily or in abuse of power, as submitted on behalf of the Plaintiffs/Appellants in this case.

Having regard to the circumstances outlined in the report of the Dunnes Payments Tribunal and the effect thereof as outlined in the

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recitals to the Resolution, the Court is satisfied that the terms of the resolution were neither arbitrary nor oppressive.

It is however submitted on behalf of the Plaintiffs/Appellants that the terms of the resolutions and the inquiries directed as a result thereof violated their constitutional right to privacy.

Right to Privacy

There is no doubt but that the terms of reference of the Tribunal of Inquiry and the exceptional inquisitorial powers conferred upon such tribunal under the 1921 Act (as amended) necessarily expose the Plaintiffs/Appellants and other citizens to the risk of having aspects of their private life 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.

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There is no doubt but that the Plaintiffs/Appellants enjoy a constitutional right to privacy. What is in dispute in this case is the extent of such right to privacy and in particular whether it extends to the right to confidentiality in respect of banking transactions and whether the exigencies of the common good outweigh, in the circumstances of this case, such right to privacy.

The Constitution does not guarantee or in any way expressly refer to a right of privacy. The right to privacy in marriage was however upheld in the McGee case [1974] IR 284.

In the course of his judgment in Kennedy & Anor. .v. Ireland [1987] IR 587 Hamilton P. stated (at page 592): -

“Though not specifically guaranteed by the Constitution the right of privacy is one of the fundamental personal rights of the citizen which flow from the Christian and democratic nature of the State. It is not an unqualified right. Its exercise may be

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restricted by the constitutional rights of others, or by the requirements of the common good and it is subject to the requirements of public order and morality.”

The right to privacy is not in issue: the issue is the extent of that right and whether that right extends to the confidentiality of a person’s banking transactions.

For the purposes of this case, and not so holding, the Court is prepared to accept that the constitutional right to privacy extends to the privacy and confidentiality of a citizen’s banking records and transactions. This is a right which is recognised at Common Law.

As stated by Lynch J. in the course of his judgment in National Irish Bank Ltd. and Anor. .v. Radio Telefís Éireann Supreme Court, 20th March, 1998, unreported): -

“There is no doubt but that there exists a duty and a right of confidentiality between banker and customer as also exists in

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many other relationships such as for example doctor and patient and lawyer and client. This duty of confidentiality extends to third parties into whose hands confidential information may come and such third parties can be injuncted to prohibit the disclosure of such confidential information. There is a public interest in the maintenance of such confidentiality for the benefit of society at large.

On the other hand, there is also a public interest in defeating wrong doing and where the publication of confidential information may be of assistance in defeating wrong doing then the public interest in such publication may outweigh the public interest in the maintenance of confidentiality.”

Just as such public interest in defeating wrong doing may outweigh the public interest in the maintenance of confidentiality, the exigencies of the common good may outweigh the constitutional right to privacy.

The exigencies of the common good require that matters considered by both Houses of the Oireachtas to be of urgent public

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importance be enquired into, particularly when such enquiries are necessary to preserve the purity and integrity of our public life without which a successful democracy is impossible.

In this case both Houses of the Oireachtas deemed it expedient that a Tribunal of Inquiry be established to enquire into the matters set forth in the resolutions.

The effect of such resolutions is undoubtedly to encroach upon the fundamental rights of the Plaintiffs/Appellants in the name of the common good.

The encroachments on such rights is justified in this particular case by the exigencies of the common good.

Such encroachment must however be only to the extent necessary for the proper conduct of the inquiry.

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Both Houses of the Oireachtas are entitled to assume that the Tribunal will conduct its investigation in accordance with the principles of constitutional justice and fair procedures and will only interfere with the constitutional rights of the Appellants when, and only to the extent that, it is necessary for the proper conduct of the inquiry.

Consequently, this ground of appeal must also fail. Right to Equality of Treatment

It was further submitted on behalf of the first named Plaintiff/Appellant that the said resolutions discriminated against him thereby violating his constitutional right to equality of treatment.

In the course of his judgment, the learned trial judge stated that:-

“In the light of the findings of the Dunnes Payments Tribunal, it is bordering on the absurd to suggest that Mr. Haughey is being unfairly or unconstitutionally discriminated against as compared with other ex-Taoisigh, ex-Ministers,

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ex-TDs or as against political parties or as against other Ansbacher account holders. The position of Mr. Haughey in public life, the nature and the amounts of the gifts to him by Mr. Dunne, and the lifestyle evidence singled him out and he cannot complain, in my view, that he is in some way or other being discriminated as against others.”

The Court agrees with the views expressed by the learned trial judge and is satisfied that the terms of the resolutions complained of do not unjustifiably discriminate against the first named Plaintiff/Appellant.

Right to Fair Procedures

It was further submitted that the said resolutions and the appointment of the Tribunal in pursuance thereof were ultra vires the jurisdiction vested in the Houses of the Oireachtas and the Taoiseach in that they violated the Plaintiffs/Appellants right to fair procedures.

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It has been held in In re Haughey [1971] IR 217 that there is a constitutionally protected guarantee of basic fairness of procedures. It has also been held that:-

“The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with and so forth”. (See Russell .v. Duke of Norfolk [1949] 1 All ER 109 at 118 per Tucker J. approved in Kiely .v. Minister for Social Welfare (No. 2) [1977] IR 267 at 281 per Henchy J.)

Both Houses of the Oireachtas in passing the Resolution and the Taoiseach in appointing the Tribunal in pursuance of the said Resolution and in providing that the 1921 Act (as amended) should apply to the inquiry were entitled to assume that the Tribunal would conduct its inquiry and all necessary proceedings in relation thereto in accordance with fair procedures and the principles of constitutional justice.

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There was, consequently, no breach of fair procedures on the part of either the Houses of the Oireachtas or the Taoiseach. Consequently, this ground of appeal also fails.

Parliamentary Privilege

It was submitted on behalf of the first named Plaintiff/Appellant that the resolutions and order hereinbefore referred to violated the constitutional privileges of the first-named Plaintiff/Appellant as Taoiseach or as a Minister.

It was submitted on his behalf that his decisions as a public office holder are not amenable to scrutiny in a tribunal of inquiry as the only forum which can scrutinise same is a parliamentary inquiry under Article 15.10 of the Constitution and that the Tribunal of Inquiry, established in this case, is not a parliamentary inquiry.

Article 15.10 of the Constitution provides that:-

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“Each House shall make its own rules and standing orders, with power to attach penalties for their infringement, and shall have power to ensure freedom of debate, to protect its official documents and the private papers of its members, and to protect itself and its members against any person or persons interfering with, molesting or attempting to corrupt its members in the exercise of their duties.”

It has already been held by the Court in its decision on the validity of the terms of the 1921 Act (as amended) having regard to the provisions of the Constitution, that this Article does not, in any way, limit the jurisdiction of both Houses of the Oireachtas to pass the resolutions passed by them or the power of the Taoiseach to appoint a Tribunal to inquire into the matters regarded by both Houses of the Oireachtas as of urgent public importance.

The matters of exceptional public importance therein referred to relate, inter alia, to any acts done or decisions made by the first-named

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Appellant in the course of his ministerial offices to confer any benefit on any person making a payment referred to in paragraph (a) or any person who was the source of money referred in paragraph (b) or any other person in return for such payments being made or procured or directed any other person to do such an act or to make such a decision.

The terms of reference do not relate to or include utterances made by the first-named Plaintiff/Appellant in either House.

Consequently, he is not entitled to the benefit of the provisions of Article 15, sub-Article 13 of the Constitution which applies in respect of any utterance in either House.

The sub-Article provides that:-

“The members of each House of the Oireachtas shall, except in case of treason as defined in this Constitution, felony or breach of the peace, be privileged from arrest in going to and returning from, and while within the precincts of, either House, and shall

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not, in respect of any utterance in either House, be amenable to any court or any authority other than the House itself.”

In the course of his judgment in Attorney General .v. Hamilton [1993] 2 IR 250, O’Flaherty J. took the view that the effect of Article 15.13 was that:-

“If a Dáil Deputy is summoned before a tribunal of inquiry to explain utterances made by him in the House, he is no more amenable to it than he is to any court. Not only can he not be disciplined; he cannot be made to explain his utterances.”

The said provisions do not apply to acts done or decisions made by a member of either House of the Oireachtas.

It is quite clear that the privilege thereby granted relates only to utterances made in either House and do not relate, in any way, to acts done or decisions made.

As stated by the learned trial judge:-

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“Privilege can undoubtedly be claimed in respect of utterances in the Dáil. But there are thousands of acts, utterances and decisions which a Taoiseach or Minister may make that are not covered by Dáil privilege. Indeed, the very separation of executive from the legislature underlines that point. If there is any evidence sought by the Tribunal which is claimed to be covered by the constitutional privilege, that can be debated upon and ruled on in due course. But to argue that all acts done and decisions made by Mr. Haughey as Taoiseach or as a Minister would be protected by the Dáil privilege is, in my view, wholly unstateable.”

The Court agrees with that passage from his judgment and is satisfied that the said Dáil privilege does not relate to acts done and decisions made by the first-named Plaintiff/Appellant as Taoiseach or as a Minister.

This ground of appeal must also be dismissed.

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Matters of Ethics

It was submitted on behalf of the first-named Plaintiff/Appellant that the terms of the resolution passed by both Houses of the Oireachtas was ultra vires their powers because it empowered the tribunal to adjudicate on matters of ethics which, it was submitted, should not properly be the subject of an adjudication by a tribunal of this nature.

When dealing with this issue in the course of his judgment, the learned trial judge quoted and accepted the written submission made by the State on this issue.

He quoted it in full as follows:-

“The reason that the tribunal is confined to determining whether payments were made in circumstances giving rise to reasonable inference that the motive for making the payment was connected with any public office held by Mr. Haughey or that had the potential to influence the discharge of such office is clear. Such recommendations as may be made by the Tribunal

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encompassed the object of ensuring the integrity of public administration. The integrity of public administration is adversely affected, not merely by payments made for particular political favours , but also by payment made in circumstances giving rise to a feeling on the part of body politic or a section thereof that the motive for making the payment was connected with a public office held by the recipient even if the motive for making that payment was not connected with such office. The point hardly needs elaboration, but ethical behaviour in public office surely incorporates more than simply refusing to take bribes, it demands in an office holder that he conduct him or herself in such a manner as does not give rise to an apprehension or inference on the part of those making up the democratic society in which we live that the motive for making a particular payment was connected with any public office.”

He stated that he agreed with every line of that passage.

It is important to emphasise once again the nature and role of the Tribunal of Inquiry established in this case by order of An Taoiseach.

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It is not to conduct a trial of the first-named Plaintiff/Appellant for alleged breaches of ethical behaviour as Taoiseach or as a Minister for the Government; neither does it involve an adjudication by the tribunal on such behaviour.

The role and purpose of the tribunal of inquiry is clearly set forth in the terms of the resolution passed by both Houses of the Oireachtas. It is “to enquire urgently into and report to the Clerk of the Dáil and make such findings and recommendations as it sees fit, in relation to the definite matters of urgent public importance set forth in the terms of the said resolutions.”

The role of the Tribunal is to inquire into the matters of urgent public importance and to report thereon to the Clerk of the Dáil.

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Its role is purely investigative and consists of ascertaining and making findings in relation to the said matters of urgent public importance.

The tribunal of inquiry is required to make such recommendations as it sees fit. The making of such recommendations does not involve an adjudication on the behaviour, ethical or otherwise, of the first-named Plaintiff/Appellant.

Consequently, this ground of appeal also fails.

Appointment of Judge of the High Court as sole member of the Tribunal

It was further submitted on behalf of the Plaintiffs/Appellants that the appointment by the Taoiseach of a Judge of the High Court as sole member of the Tribunal was ultra vires his powers as such appointment constituted an infringement of the separation of powers established by the Constitution.

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As earlier pointed out the tribunal is not administering justice. Neither is it exercising an executive or legislative function. At the request of the legislature it is enquiring into certain matters of public importance. When it has performed its task it will send its findings and its recommendations to the Houses of the Oireachtas. Both Houses are not bound to accept any of the findings or any of the recommendations made by the Tribunal. In due course the members of the Dáil and the Seanad will no doubt debate the findings and the recommendations of the Tribunal. They may accept some of the findings and reject others or they may accept the findings but not the recommendations. Or they may even accept the recommendations but not the findings. In no sense therefore is the tribunal acting as a legislature, an executive or a Court of Law. The question of the separation of powers or a breach of the separation of powers or of the Constitution does not therefore arise.

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Whether the Taoiseach or the Government ought to invite a judge to be a sole member or other member of such a tribunal is a policy matter on which the Appellants, like other citizens, are entitled to have their opinions. But it is a policy matter on which it would not be appropriate for this Court to express an opinion. This Court realises however the importance of the work which such tribunals may have to carry out in our system of Government and sees no constitutional or legal objection to a judge being a member, or the sole member, of such a tribunal provided he or she is willing to serve and provided his or her absence from his or her normal duties does not impose an undue strain on the work of his or her Court and has the approval of its President.

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Alleged Breaches of Fair Procedures by the Tribunal in the conduct of the Inquiry

It is now necessary to deal with the Plaintiffs/Appellants allegations that the Tribunal is not being conducted in accordance with the principle of fair procedures.

In the Statement of Claim delivered on their behalf it is alleged that:-

“The first named Defendant has acted ultra vires his powers in that he has

(a)	Purported to redraw his terms of reference by purporting to interpret the word ‘substantial’ as being equivalent to ‘£500’;
(b)	Made orders for discovery in relation to the financial affairs of all of the Plaintiffs without

(i)	notifying any of the Plaintiffs of the application for Orders for discovery;
(ii)	providing the Plaintiffs or any of them with an opportunity to be represented in relation to the

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making of any order for discovery affecting documents private to them;
(iii)	 providing the Plaintiffs with copies of all orders for discovery made by him in such time as would enable the Plaintiffs or any of them to make any representation in relation to the making of the said Order prior to the party to whom the said Order was directed being required to comply with same.
(c)	Agreed with the Government Chief Whip acting on behalf of the Government and Fianna Fáil Parliamentary Party how correspondence should be dealt with;
(d)	Indicated that he will refuse to accept submissions from any party to the Tribunal save such party has been granted representation by the Tribunal.

The first named Defendant in the conduct of the Tribunal of Inquiry has acted in breach of the Plaintiffs’ constitutional rights and has abused his powers as chairman in that he has:

1.	In breach of the Plaintiffs’ rights to fair procedures

a)	Refused to identify his understanding of the remit of the inquiry as identified by the terms of reference provided for in the resolutions of the Dáil and

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Seanad, and in particular how he has decided that the word ‘substantial’ equates to £500.

b)	Made orders for discovery in relation to the financial affairs of all of the Plaintiffs without

(i)	notifying any of the Plaintiffs of the application for orders for discovery;
(ii)	providing the Plaintiffs or any of them with an opportunity to be represented in relation to the making of any order for discovery affecting documents private to them;
(iii) 	providing the Plaintiffs with copies of all orders for discovery made by him in such time as would enable the Plaintiffs or any of them to make any representation in relation to the making of the said Order prior to the party to whom the said Order was directed being required to comply with same.

c)	Failed to provide the Plaintiffs with orders made or requests for information made by the Tribunal directed to Government Departments, Ministers or TDs seeking evidence or information concerning the

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Plaintiffs’ affairs either personal or as a TD, Minister or Taoiseach.

d)	Failed to provide all correspondence between the Tribunal and TDs concerning the receipt by them of monies or benefits in kind as referred to in the Tribunals terms of reference together with all replies or correspondence relevant to same.

e)	Failed to provide copies of all correspondence or orders made against any political party seeking information concerning donations covered by the period referred to in the terms of reference.

f)	Agreed with the Government Chief Whip acting on behalf of the Government and Fianna Fáil Parliamentary party how correspondence should be dealt with.

g)	Failed to provide a list of all meetings between the Tribunal and the persons from whom the Tribunal is seeking information concerning the Plaintiffs or any of them.

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h)	Indicated that he will refuse to accept submissions from any party to the Tribunal save such party has been granted representation by the Tribunal.

2.	In breach of the Plaintiffs’ right to equality, conducted his inquiries in a biased and discriminatory fashion.

Further, the Tribunal in conducting its proceedings in private is acting ultra vires the provisions of the said Act.”

High Court Judgment in relation to the issues raised in the Statement of Claim

The learned High Court Judge summarised the issues in relation to this aspect of the case as being an allegation made on behalf of the Plaintiffs/Appellants

“that the Tribunal is not being conducted in accordance with fair and constitutional procedures and that there is no constitutional justification for the tribunal carrying out its work otherwise than in public up to now.”

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It is necessary to set forth in some detail the conclusions of the learned trial judge on the issues raised on this aspect of the case. He stated that:-

“Finally, I turn to the issues relating to the actual conduct of the proceedings in the tribunal so far. I have already touched on one important matter in this connection and that is the obligation on the part of the tribunal to explain the terms of reference at least on a provisional basis if fair procedures require that that be done.”

He then quoted from paragraph 77 to 79 of the Report of the British Royal Commission on Tribunals of Inquiry which paragraphs were under the general heading “Terms of Reference”.

Paragraph 79 of the said report provided that:-

“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

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further interpretation it may have placed on the terms of reference in the light of the facts that have emerged.”

The learned trial judge adopted those views with one modification and stated:-

“At this stage the Moriarty tribunal is engaged in an evidence gathering exercise and in that context I do not think that the requirement of fair procedures would dictate that there be some kind of formal public hearing in which the tribunal would give a preliminary explanation of its terms of reference, but persons intimately affected by the inquiry and in particular in the context of this case, Mr. Haughey and the relevant members of his family ought at the very least to have been written to personally or through their agents clarifying any serious ambiguity in the terms of reference particularly relating to dates.”

The learned trial judge then went on to consider what he described as 

“the more specific question of whether the discovery orders ought to have been made without advance notice of a proposal to make them to the

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plaintiffs insofar as their bank accounts were being sought from the banks or at least without some opportunity to object being given.” He stated:-

“I think that the Tribunal probably took the view that as it was not seeking these documents directly from the Plaintiffs but rather from their banks it was not necessary to give the Plaintiffs any notice or any opportunity to object to the discovery orders. While I can understand that point of view, I am bound to say that I do not think it was a fair procedure in all the circumstances of this inquiry.”

The learned trial judge then went on to deal with the question whether the Tribunal would be prima facie entitled to make orders of discovery in relation to the bank accounts, having regard to the constitutional right to privacy of the Plaintiffs/Appellants.

He then stated:-

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“But it is a completely different matter as to whether the Plaintiffs were entitled to receive advance notice of an intention to make discovery orders against their banks and/or ought to have been given an opportunity to make representations against such orders being made.”

He then proceeded to differentiate between the position in this regard of the first-named Plaintiff/Appellant and the other Plaintiffs/Appellants being “connected persons” within the definition of “connected persons” as contained in the Ethics and Public Office Act, 1995.

Having considered the position of the “connected persons” he then stated that:-

“It follows, therefore, that the ‘connected persons’ have to be treated, in my view, rather differently from the person with whom they are connected.”

He further stated:-

“On the evidence before me I would be of the view that the second, third, fourth and fifth named Plaintiffs ought to have

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received prior notice of an intention to make the discovery order against the banks to enable them to raise objections, or at the very least ought to have been served with copies of the discovery orders with an accompanying note giving them a right to reply to the Tribunal to have the orders varied or discharged.”

With regard to the decision in this regard of the first-named Plaintiff/Appellant, the learned trial judge stated:-

“The position on Mr. Haughey is somewhat different from that of a ‘connected person’. The Tribunal would have been entitled to expect that he would know that discovery orders would obviously be made or at least would be likely to be made against his banks having regard to the terms of reference. But due to the ambiguities he could not be expected to know the period for which discovery would be sought. I think, therefore, that in the absence of clarification of the terms of reference by the tribunal, Mr. Haughey also was entitled to an opportunity in some form to object to the discovery orders on his banks. By letter of 12th December 1997 from the Solicitors for the Tribunal to the Solicitors for Mr. Haughey, Mr. Haughey was invited to

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apply to have the discovery orders varied or discharged. He declined the invitation. But having done so he cannot legitimately complain about unfairness.”

He then went on to say that:-

“Even though I do not believe that fair procedures were adopted in and about the obtaining of the discovery orders against the banks in relation to the other Plaintiffs’ accounts, I do not think that the unfairness which occurred was sufficiently fundamental to render void the proceedings so far of the tribunal. I am particularly bearing in mind that the accounts required went back only to 1974. An order quashing the discovery orders should be refused as a matter of discretion. I am satisfied that the Tribunal acted bona fide and I am equally satisfied that the Plaintiffs have now had an opportunity of airing their legitimate complaints. I think it would be pointless to declare void the discovery orders and force the Tribunal to embark on a new and cumbersome procedure before it would be able to get back whatever bank accounts it now has. The Tribunal at present is at an investigative stage only and none of the information in the bank accounts will be used in the public

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forum unless it is relevant. Otherwise it will be kept confidential.”

On the issue with regard to the fact that the Tribunal had been carrying on its proceedings in private, the learned trial judge stated:-

“It is inherent in the nature of an enquiry of this kind that all the preliminary work will be done in private. The express prohibition on refusing to allow the public or any portion of the public ‘to be present at any of the proceedings of the Tribunal’ contained in 1921 Act refers, in my view, to the actual hearings following on the investigations and even then the Tribunal is empowered to hear evidence in private if 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. The private conduct of its investigations and evidence gathering so far by the Tribunal is not prohibited by the Act or even if there were any doubt about this, apparently the sole member has made an order permitting the proceedings to be held with in private.”

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The learned trial judge then refused the specific declarations and orders sought in the amended statement of claim but made the following limited declarations:-

“1. 	A declaration that the Plaintiffs were entitled, if they so request, to have a prima facie explanation from the tribunal of any relevant ambiguities arising in the terms of reference.

2.	a declaration that the second, third, fourth and fifth named Plaintiffs and each of them was entitled to be given a reasonable opportunity to object to orders of discovery by the Tribunal in respect of their bank accounts.”

The Plaintiffs/Appellants have appealed to this Court against the refusal of the learned trial judge to make the declarations sought by them and in this Court, on this aspect of the case, seek

1.	A declaration that the first named Defendant/Respondent, the sole member of the Tribunal of Inquiry, in the manner in which he is conducting the tribunal of inquiry is acting in breach of the

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Plaintiffs/Appellants constitutional rights and/or ultra vires the power conferred on him by the Tribunals of Inquiry (Evidence) Acts, 1921 to 1997; and

2.	an order quashing the orders of discovery made by the first named Defendant/Respondent in so far as same relate to the affairs of the Plaintiffs/Appellants, or, in the alternative, a declaration that the said orders are of no legal effect.

Before dealing with the issues raised in this aspect of the appeal, it is necessary to refer to portions of the correspondence exchanged between the Plaintiffs/Appellants and their solicitor and the solicitor to the Tribunal between the 5th day of November 1997 and the 18th day of December 1997 when proceedings were instituted on behalf of the Plaintiffs/Appellants.

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By letter dated the 8th November 1997, the solicitor to the Tribunal sought from the first named Plaintiff/Appellant the information outlined therein and enclosed a copy of the terms of reference.

A reply thereto was sought on or before the 14th November 1997.

By letter dated the 14th day of November 1997, the first named Plaintiff/Appellant replied as follows:-

“I am in receipt of your letter of 5th November 1997. 

I was a member of Dáil Éireann from 1957 to 1992. I regret that, because of the length of time involved, 35 years, the absence of records and difficulties in remembering, it would be almost impossible for me to supply the kind of detailed information sought.

I am furthermore concerned as to the constitutionality of the terms of reference and indeed as to whether it is constitutionally appropriate for a judge of the High Court to enquire into matters political. It was never envisaged that the

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Tribunals of Inquiry (Evidence) Act of 1921 together with the Tribunals of Inquiry (Evidence) (Amendment) Act 1979 would be used in this way.

I am however seeking assistance and advice on your request and on the matters raised above.”

Subsequent to the 19th day of November 1997, all correspondence on behalf of the first named Plaintiff was dealt with by his solicitor.

In the course of such correspondence the first named Plaintiff/Appellant’s solicitor, inter alia, wrote as follows:-

“The tribunal in its letter under reply indicates that it is in the process of inquiring ‘into matter of urgent public interest’ concerning our client. The Tribunal has not to date indicated to our client the matters of urgent public interest concerning our client which it is enquiring into. We formally invite the Tribunal to identify for the benefit of our client and ourselves ‘all matters of urgent public interest’ arising from the terms of reference as they affect our client, which the Tribunal have interpreted as being within their remit.”

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By further letter dated the 28th November 1997, the Plaintiff’s solicitor stated, inter alia, that:-

“We note that you have not availed of the opportunity of explaining to our client your interpretation of the terms of reference as they may affect our client.”

On the 2nd day of December 1997, the solicitor to the Tribunal wrote to the first named Plaintiffs/Appellants’ solicitor as follows and in this case it is necessary to set out the full terms of the said letter because of the matters therein contained:-

“I refer to your letter dated the 28th November last received by facsimile transmission. Advertisements were placed in newspapers setting out the Terms of Reference of the Tribunal and notified any person wishing to be represented to appear before the Tribunal sitting at George’s Hall, Dublin Castle at 2 p.m. on Friday, 31st October 1997 to apply for representation. No application for representation was made by or on behalf of your client notwithstanding the fact that he was named in the Terms of Reference.

Given the nature of its task, the Tribunal itself has had to assume the task of endeavouring to collect evidence and information which might lead to evidence. In this regard, and

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conscious of the fact that financial institutions and other persons would be required to disclose information and documents of a confidential nature, the Tribunal is of the opinion that it is in the public interest expedient that this aspect of its proceedings be conducted in private. Therefore the Tribunal has exercised its discretion under section 2(a) of the Tribunal of Inquiry (Evidence) Act, 1921 as amended by the Tribunal of Inquiry (Evidence) (Amendment) Act, 1979.

The Sole Member of the Tribunal at the public sitting of the Tribunal on the 31st October 1997 stated that there would be no derogation from the principles of natural justice which will have to be observed in the appropriate manner in any issues that may from time to time arise and it will be imperative that the Tribunal’s workings ensure that people whose interests or businesses or reputations are in jeopardy are given full and ample opportunity of defending their interest in those regards. The Sole Member of the Tribunal also stated that it is not the wish or intention of the Tribunal to serve either as a witch hunt or a fudge; it is the wish and intention of the Tribunal to inquire diligently, fairly and adequately into the matters referred to it and to report as promptly as possible upon those matters with any recommendations that may seem appropriate.

The Tribunal has set about its task of endeavouring to collect evidence and information which might lead to evidence and has and will make such Orders as it considers necessary for the purpose of its functions pursuant to Section 4 of the 1979 Act. The Tribunal has made the Orders referred to in your letter. Those Orders contain the provision in accordance with

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constitutional and natural justice that the person against whom the Order is made or any person interested in any of the documents falling within the Order for discovery has liberty to apply to the Tribunal to vary or discharge the Order. No application has been made by or on behalf of your client to vary or discharge the said Orders. Your client is invited to make such an application to the Tribunal if he so wishes.

Turning to the second page of your letter the Tribunal will not enter into debate about its Terms of Reference. Submissions may be made to the Tribunal on behalf of any person who has been granted representation.

As already indicated, the Tribunal has exercised its discretion that this aspect of its proceedings be conducted in private. The information requested by you on page 2 of your letter cannot be given, other than to inform you that Orders for discovery have been made against the institutions/persons listed below and your client may have an interest in documents falling within the said Orders:

1.	ACC Bank plc;
2.	AIB Capital Markets plc;
3.	AIB Finance Limited;
4.	Allied Irish Banks plc;
5.	Anglo Irish Bank Corporation plc;
6.	Ansbacher Bankers Limited;
7.	The Governor and Company of the Bank of Ireland;
8.	Bank of Ireland Finance Limited;
9.	Guinness & Mahon (Ireland) Limited;
10. Investment Bank of Ireland Limited;

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11.	Irish Permanent plc.;
12.	The official liquidator of Merchant Banking Limited (in liquidation);
13.	National Irish Bank Limited;
14.	National Irish Investment Bank;
15.	Mr. Jack Stakelum;
16.	Ulster Bank Limited.

Again the Tribunal invites your client to apply to vary or discharge the said Orders if he so wishes.
Subject to clauses (iii) and (iv) of the Terms of Reference, when the Tribunal is possessed of sufficient information it will continue its public sittings and will make its findings and report on matters which occur during those public sittings. Written submissions may be entertained by the Tribunal in respect of recommendations.
The intention of your client to co-operate fully with the Tribunal is noted but please note that the Tribunal cannot accept that such co-operation be conditional in the way you suggest.

The Tribunal awaits your reply but in the meantime its work will continue.”

It is clear from the terms of the said letter that the Tribunal considered that the requirements of fair procedures in the making of the impugned orders for discovery were complied with by affording any

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person interested therein or affected thereby the opportunity of applying to the Tribunal to vary or discharge the order.

In addition, the Tribunal stated that “it will not enter into debate about its Terms of Reference” and that “submissions may be made to the Tribunal by any person who has been granted representation,” thereby implying that the Tribunal would not entertain submissions to it on behalf of any person who had not been granted representation.

By letter dated 9th December 1997, the Plaintiff’s solicitor noted as follows:-

“We note that you will not enter into debate concerning the Tribunal’s Terms of Reference unless or until a person has been granted representation. This is an absolute denial of a person’s constitutional right to have his good name protected and vindicated. You point out that our client is named in the Terms of Reference. It is clear beyond doubt that such a person is clearly entitled to make representation concerning such Terms of

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Reference and to seek clarification or understanding of what the Tribunal considers is contained within its remit. We therefore repeat our request for the Tribunal’s interpretation of its Terms of Reference in respect of

a)	our client

b)	Ansbacher Accounts

c) 	All TDs and Ministers who have held public office. We cannot accept that where our client is named in the Terms of Reference and the Tribunal inquiring into matters that concern our client, that he is not entitled to be made aware of the nature of all these inquiries as they may impact on him.”

On this issue the solicitor to the Tribunal wrote on the 12th December 1997 as follows:-

“As already indicated the Tribunal is not prepared to enter into debate with you on the jurisprudence of tribunals of inquiry.”

By letter dated the 18th December 1997, the solicitor to the Tribunal wrote to the first named Plaintiffs/Appellants’ solicitor in the following terms:-

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“The Tribunal has been charged by the Oireachtas with inquiring into the matters referred to it in a manner that is as expeditious as is consistent with a fair examination of these matters. It is aware of its duties and entitlements pursuant to the Tribunals of Inquiry (Evidence) Act, 1921 and Tribunals of Inquiry (Evidence) (Amendment) Act, 1979 and otherwise as is provided by law. Save as thereby provided and mindful of its duties in the context of fair procedures, it is not disposed to have necessary and pertinent aspects of investigations at this juncture directed, supervised or curtailed by your client. Neither is it disposed towards discussing or debating its ‘interpretation’ of the Terms of Reference set forth in the Resolution of the Oireachtas.”

It is clear from the said correspondence that while the Tribunal was seeking information from the first named Plaintiff/Appellant the first named Plaintiff/Appellant was seeking clarification of the terms of reference.

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The solicitor to the Tribunal was not willing to clarify the terms of reference or, on behalf of the Tribunal, to enter into any discussions with regard thereto.

The sole member of the Tribunal had adopted the attitude that he would not entertain submissions from any party who had not been granted representation before the Tribunal.

The first named Plaintiff/Appellant alleged that irrespective of the question as to whether he had been granted representation or not he was entitled to make submissions to the Tribunal in view of the nature of the inquiries being conducted by the Tribunal into what he alleged were his “private affairs”.

Submissions on behalf of the Plaintiffs/Appellants

The relevant submissions on behalf of the Plaintiffs/Appellants herein may be summarised as follows:-

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1.	The Tribunal in the conduct of its proceedings has acted ultra vires the 1921 Act (as amended) and in breach of the Plaintiff’s constitutional rights to fair procedures in that it has:

(a)	held its sittings in private;
(b)	failed to identify its terms of reference; and
(c)	made orders for discovery in breach of the rights of the Plaintiffs.

2.	In making the said orders for discovery the Tribunal unjustifiably violated the Plaintiffs/Appellants right to privacy in regard to their banking transactions.

3.	The Tribunal has acted ultra vires and in violation of the Plaintiffs/Appellants constitutional rights in that it has refused to identify its understanding of the remit of the inquiry as identified by the Terms of Reference provided for in the resolutions of the Dáil and Seanad and made orders for discovery in relation to the financial affairs of the Plaintiffs/Appellants without

(i)	notifying any of the Appellants of the application for orders for discovery;

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(ii)	providing the appellants or any of them with an opportunity to be represented in relation to the making of any order for discovery effecting documents private to them;

(iii)	being willing to provide the Appellants with copies of orders for discovery made by the Tribunal in such time as would enable the Appellants or any of them to make representations in relation to the making of the order prior to the party to whom the order was directed being required to comply with same.

It was submitted that the conduct of the Tribunal in this regard was an abuse of power and in breach of the Plaintiff’s/Appellant’s constitutional right to fair procedures in that:-

(a)	The orders for discovery were made without reference to them; and
(b)	they were not given the earliest opportunity possible of assembling evidence.

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It was submitted that this constituted a particularly serious breach of fair procedures, having regard to the fact that the Tribunal was inquiring into matters going back over an extremely lengthy period, thereby making it even more important for the Plaintiffs/Appellants to be given the earliest possible opportunity of investigating the matters which the Tribunal was concerned.

Nature and powers of the Tribunal of Inquiry

The Tribunal of Inquiry has been lawfully established pursuant to the resolutions of both Houses of the Oireachtas and the order made by An Taoiseach.

The provisions of the 1921 Act, as amended, apply to the Tribunal and it has been held by this Court in its decision pronounced earlier that the provisions of the said Act are not invalid having regard to the provisions of the Constitution.

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The role of the Tribunal is investigative and the Tribunal is charged with the responsibility of inquiring into the matters of urgent public importance set forth in the said resolutions and make findings thereon.

Included in the powers conferred on the Tribunal of Inquiry is the power to

(a)	enforce the attendance of witnesses and to examine them on oath, affirmation or otherwise;
(b)	compel the production of documents; and
(c)	make such orders as it considers necessary for the purposes of its functions.

While the giving of such powers to the Tribunal was held by this Court to be valid having regard to the provisions of the Constitution, it was held that the relevant sections must be construed within the

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constitutional framework and in particular with regard to fair procedures.

Investigations in Private

Section 2 of the 1921 Act 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.”

This section clearly recognises the right of the public or any portion of the public to be present at any of the proceedings of the Tribunal and prohibits the Tribunal from refusing to allow them to be present 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.

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A question arises as to the meaning of the term “the proceedings of the Tribunal”.

It was submitted on behalf of the Plaintiffs/Appellants that “proceedings” relate to all activities of the Tribunal including the preliminary investigation of the matters relating to the terms of reference.

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;

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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.

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

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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 witnesses giving such evidence being subject to cross-examination and the other matters at the 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.

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Infringement of constitutional right to privacy

With regard to the submission made on behalf of the Plaintiffs/Appellants that the impugned orders of discovery infringed the constitutional right to privacy of the Plaintiffs/Appellants and their right to confidentiality in respect of their banking transactions, the Court come to the following conclusions.

For the reasons already set forth in the course of this judgment dealing with the constitutional right to .privacy the Court is satisfied that the orders per se did not unjustifiably encroach upon the constitutional rights of the Plaintiffs/Appellants and at this stage repeats the statement already made by the Court that:-

“The encroachment on such rights is justified in this particular case by the exigencies of the common good.”

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The question however remains as to whether in the making of the said orders the Tribunal complied with the requirements of fair procedures.

While the Tribunal is entitled to conduct the preliminary stage of its investigations in private, and to make such orders as it considers necessary for the purposes of its functions, that does not mean that in the making of such orders, it was not obliged to follow fair procedures.

In the making of such orders the Tribunal had 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.

Fair procedures require that before making such orders, particularly orders of the nature of the orders made in this case, the person or persons likely to be affected thereby should be given notice by the Tribunal of its intention to make such order, and should have been

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afforded the opportunity prior to the making of such order, of making representations with regard thereto. Such representations could conceivably involve the submission to the Tribunal that the said orders were not necessary for the purpose of the functions of the Tribunal, that they were too wide and extensive having regard to the terms of reference of the Tribunal and any other relevant matters.

Such a procedure was not adopted in this case and the learned trial judge held that in the making of such orders the Tribunal did not act in accordance with the requirements of fair procedures.

The Court is satisfied that the learned trial judge was correct in his findings that the orders sought to be impugned herein made by the Tribunal were made in contravention of the requirements of constitutional justice and that fair procedures were not adopted by the Tribunal in the making of such orders.

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Such failure was not remedied by the insertion in such orders of the provision that the person to whom the order was directed or any person affected thereby had the right to apply to the Tribunal to vary or discharge that order.

This is particularly so having regard to the circumstances of this case, the nature of the orders made and the time scale within which compliance therewith was ordered.

There may be exceptional circumstances, such as a legitimate fear of destruction of documents if prior notice was given, where the requirements of fair procedures in this regard may be dispensed with. No such circumstances exist in this case.

Each of the Plaintiffs/Appellants is entitled to the benefit of fair procedures and the Court is satisfied that the learned trial judge erred in

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differentiating between the rights of the first-named Plaintiff/Appellant and the remaining Plaintiffs/Appellants.

The learned trial judge refused, as a matter of discretion, to quash the said discovery orders stating that:-

(i)	the Tribunal had acted bona fide;
(ii)	the Plaintiffs had now an opportunity of airing their legitimate complaints;
(iii)	it would be pointless to declare void the discovery orders and force the Tribunal to embark on a new and cumbersome procedure before it would be able to get back whatever bank accounts it now has.

While this approach by the learned trial judge may enjoy the attractiveness of being pragmatic and, indeed, realistic, it does not have regard to the seriousness of the breach of the Plaintiffs/Appellants’ right

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to fair procedures and the courts obligation to defend and vindicate the constitutional rights of the citizen.

The vindication of such rights requires that the impugned orders of discovery made by the Tribunal other than in accordance with fair procedures be quashed and that the Tribunal be deprived of the benefit of such orders and the Court will so order.

The following statement made by Ó Dálaigh C.J. in the course of his judgment in In re Haughey [1971] IR 217 at page 264 is particularly apt:-

“The provisions of Article 38.1 of the Constitution apply only to trials of criminal charges in accordance with Article 38; but in proceedings before any tribunal where a party to the proceedings is on risk of having his good name, or his person or property, or any of his personal rights jeopardised, the proceedings may be correctly classed as proceedings which may affect his rights, and in compliance with the Constitution, the

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State, either by its enactments or through the Courts must outlaw any procedures which will restrict or prevent the party concerned from vindicating these rights.”

The quashing by the Court of the said Orders made by the Tribunal does not preclude the Sole Member of the Tribunal from making similar orders in the future should it consider that the making of such orders is necessary for the purposes of its functions, provided that in the making thereof he applies fair procedures as outlined herein. Right to have Terms of Reference explained

The Court has already in the course of its judgment referred to paragraph 79 of the Salmon Report and adopted it as a correct statement of the law and practice applicable to such tribunals in this jurisdiction and adopted that as a correct statement of the law and practice applicable to such tribunals in this jurisdiction.

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The Tribunal has not taken an early or any opportunity of explaining in public its interpretation of its terms of reference.

Having regard to the terms of the resolution passed by both Houses of the Oireachtas and the fact that he is named therein and likely to be affected, one way or the other, by the findings of the Tribunal, the first-named Plaintiff/Appellant is entitled to an explanation by the Tribunal of its terms of reference, certainly so far as they relate to him.

In the correspondence herein before recited, the Solicitors for the Plaintiffs/Appellants sought such an explanation but such explanation was refused by the Tribunal.

In this regard, it is necessary to refer only to one paragraph from the letter dated the 2nd day of December, 1997 written by the Solicitor to the Tribunal, which states as follows:-

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“Turning to the second page of your letter the Tribunal will not enter into debate about its Terms of Reference. Submissions may be made to the Tribunal on behalf of any person who has been granted representation.”

One can understand why the sole member of the Tribunal declined to enter into private correspondence with the solicitors on behalf of the Plaintiffs/Appellants as to the interpretation to be placed upon the terms of reference. But for the reasons the Court has given the Plaintiffs/Appellants were entitled to such explanation which can, under the legislation and in accordance with the practice recommended by the Salmon Report, be given at an early public sitting of the Tribunal. Whether the Plaintiffs/Appellants attend that hearing of the tribunal in person or apply for leave to be represented at the hearing are not matters with which this Court is at this stage concerned.

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In view of the stance being taken by the Tribunal in this regard, the Court is satisfied that the Plaintiffs/Appellants are entitled to 

a Declaration that the Sole Member of the Tribunal of Inquiry is obliged to explain to the Plaintiffs/Appellants its interpretation of its Terms of Reference in so far as they relate to the Plaintiffs/Appellants.

The Court accepts that such explanation may not be final and that it may be necessary for the Tribunal to explain any further interpretation it may place on the Terms of Reference in the light of facts as they may emerge.

The Plaintiffs/Appellants are entitled to this explanation and to seek clarification in respect thereof even though they have not sought or been granted representation before the Tribunal.