THE SUPREME COURT
278/00
Keane CJ.
Murphy J.
McGuinness J.
Geoghegan J.
Fennelly J.

In the Matter of an Application pursuant to Section 4 of The Tribunals of Enquiry (Evidence) (Amendment) Act 1979

BETWEEN

THE HONOURABLE MR. JUSTICE FEARGUS FLOOD SOLE MEMBER OF THE TRIBUNAL OF INQUIRY INTO CERTAIN PLANNING MATTERS AND PAYMENTS
PLAINTIFF
AND

LIAM LAWLOR
DEFENDANT

Ex-Tempore Judgment of Keane CJ delivered on Friday 24th November 2000 

This is an appeal from a judgment and order of the High Court (Mr. Justice Smyth) dated the 24th October 2000 in which it was ordered that the defendant in these proceedings make discovery on oath in accordance with an Order of the Tribunal of Inquiry (of which Mr. Justice Flood, is the Sole Member) into certain planning matters and payments, dated

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8th June 2000 for specified periods which it is not necessary to recite, which also ordered that the defendant should attend before the Tribunal and produce and hand over the documents and records within a specified time and then thirdly ordered that the defendant attend before the Tribunal at a sifting in public to give evidence to the Tribunal in relation to documents and records mentioned in the Order of the plaintiff made on the 8th of June 2000 in respect of the first period, not later than two weeks from that date, on notification to the defendant or his solicitors by the Tribunal as to the exact time and place at least two clear days in advance and thereafter as may be determined by the Tribunal from time to time.

It is the third part of that Order from which the defendant has now appealed to this court, that is, the Order requiring him to attend before the Tribunal at a public sifting. That Order gives in turn effect to the Order purportedly made by the Tribunal in relation to this matter, that is, requiring the production of documents and also requiring the defendant to attend at a public sitting of the Tribunal to give evidence in relation to those documents.

Accordingly this court today is not concerned with the other two requirements of that Order and it is understood, and the court has been so informed, that the defendant in these proceedings has responded to that Order by the production of documents.

However, on the hearing of this appeal Mr. Rogers has submitted to this court that the finding of the learned High Court Judge, Mr. Justice Smyth, was erroneous in law and I think one can reasonable summarise Mr. Rogers’ submissions in this way. He says that the Tribunal, so far as this aspect of the matters it is inquiring into, is still in what he describes as an investigative mode and he says that it is an investigative mode which in fairness both to

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the defendant and to other persons who might be affected by anything he has to say in to the matter, should be heard in private. He says at this stage that the defendant is in a position that he is not aware of any specific allegations being made against him by any person and that it was wrong that these matters should be given currency in public. While he accepts and understands the position that at some stage it might be appropriate for the defendant to be required pursuant to the relevant legislation to attend before the Tribunal in public sitting, he says that that stage had not be reached and that the Tribunal’s Order to the witness to attend and the Order of the High Court in effect giving effect to that Order or requiring that Order to be complied with are not Orders which the Tribunal or the High Court are entitled to make.

It is necessary to say at the outset that there are features of the proceedings by a Tribunal of Inquiry established pursuant Tribunals Act, 1921, and the various Acts which have amended it which are not in dispute and cannot be in dispute at this stage because they are the subject of numerous decisions in recent years of this court and indeed of High Court Judges. It is clear in the first place that the legislation envisages that in general the proceedings of a tribunal of this nature are to be heard in public. Section 2 of the Tribunals of Inquiry (Evidence) Act, 1921, which although amended in various important respects by subsequent legislation, remains the Act which in general terms establishes the procedure says that a Tribunal to which this Act is applicable 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 of the nature of the evidence to be given.

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It is quite clearly envisaged from that provision, and this court has emphasised this aspect of it in a number of its recent decisions on the matter, that in general the proceedings of the tribunal are to be heard in public. This is of paramount importance because the Tribunal is established by a resolution of both Houses of the Oireachtas in order that matters of definite public concern should be investigated by an independent tribunal as a matter of urgency. As has been frequently pointed out, one of the objects and indeed probably the main object of an Inquiry, is to seek to allay public concern arising from matters comprised in the terms of reference of the Tribunal and affecting in general, although not exclusively, the conduct of public life at various levels and the conduct of public administration at various levels. That object of course will be defeated if the Inquiry as a general rule is to be conducted in private rather than in public. It is no doubt for that reason that in the forefront of the procedure established by parliament for the holding of these Inquiries is the requirement that they must be heard in public unless the Tribunal decide for reasons connected to the subject matter of the Inquiry and the nature of the evidence to be given that it or any part of its proceedings should be heard in private.

It is of course the case that the Tribunal, in setting about the task which it has been entrusted with by the Oireachtas, will of necessity hear some matters in private while it assembles evidence and considers whether evidence should be further inquired into, and whether it is in any way relevant to its terms of reference or simply does not arise in relation to its terms of reference and therefore need not be inquired into any further. That is a necessary inquiry process which all tribunals of this nature have to undertake to a greater or less extent and that aspect of their inquiry, of course, is conducted in private and for obvious reasons because it might lead to utterly unsubstantiated or irrelevant allegations being given

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widespread currency which would obviously not be in the public interest or required in any way. The Tribunal will, however, at some stage come to a decision that the evidence of particular persons is required to be given in public at a public sitting of the Tribunal and that was the stage that matters reached in this case.

It has been said more than once by Mr. Rogers in the course of his submissions this morning, that his client has been required, as he puts it, to attend the hearing “on the blind” it were, not knowing what allegations may be made against him. It has to be borne in mind in relation to that submission that the Tribunal at the outset on the 19th May of this year wrote to the defendant s solicitors setting out in detail a number of matters which were quite plainly and unarguably within the Tribunal’s terms of reference and which would raise questions as to the propriety of certain activities in relation to planning matters in the Dublin area, matters in which, according to information coming to the Tribunal, it appeared that the defendant might have been concerned in some way. It was these matters, specifically notified to the defendant, that the Tribunal wished to inquire into and having had considerable correspondence with the defendant’s solicitors regarding these matters and the extent to which they could be inquired into on a voluntary basis with the defendant, the Tribunal ultimately reached the decision that these were matters which required to be treated as part of the inquiry in public which it was conducting in accordance with the resolution of the two Houses. It was on that basis, and expressly on that basis, that the Order was made which was subsequently given effect to by the Order of the High Court which is now the subject of the appeal.

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It is not necessary to stress, because it has been repeatedly said in this court, that the courts in interpreting the relevant legislation, must afford a significant measure of discretion to the Tribunal as to the way in which it conducts these proceedings. It must, of course, observe the constitutional rights of all persons who appear before it or upon whom the decisions of the Tribunal or the manner in which they conduct their business may impinge, but making every allowance for that important qualification, the principle remains as I have indicated. The Tribunals must be afforded a significant measure of discretion as to the manner in which they carry out the important task which has been entrusted to them by the Oireachtas because if that principle is not borne in mind then the very important objectives which the establishment of the Tribunal of this nature was intended to achieve can only be frustrated.

It is worth noting, I think, that in a recent decision of this court arising out of the same inquiry of Bailey v Mr. Justice Flood Supreme Court, 14 April, 2000, in the judgment of the court, delivered by Mrs. Justice Denham on the 14th April of this year, the following paragraph appears which is highly relevant to the issues with which this court is concerned this morning.

“The novel feature of the present case was the argument that the evidence of the Applicants should be heard by the Tribunal in private in the first instance and if it was then established or emerged that the evidence so given was relevant or material the hearing could be repeated in public. Assuming, without deciding) that such a procedure was permissible a decision as to whether that course should be adopted was one which fell to be made by the Tribunal itself. That decision must conform to the standard of reasonableness laid down by this court in 

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The State (Keegan) and the Stardust Victims Compensation Tribunal [1986] IR 642 and O’Keeffe -v-An Bord Pleanála [1993] 1 IR 39.”

There is also a reference to the similar approach taken in England in the case of R -v- Lord Saville [1999] 4 ALL E.R. 860.

Applying those same considerations to the present case, I am quite satisfied that the Tribunal was entirely within its rights in seeking in the first instance to inquire from the defendant in private and in correspondence and so on through his solicitors whether he could give them assistance in this matter and that having exhausted, as the Tribunal saw it, that line of approach, it was then entirely a matter for the Tribunal as to whether it then invoked its power of requiring the person concerned to attend before them in public and to give evidence on oath as to these matters. Applying again the principle that the courts will entrust a significant measure of discretion to bodies entrusted with various jurisdictions, be they tribunals or otherwise, namely, that the court will not interfere with them save where the decision reached is irrational or flies in the face of common sense I entertain no doubt that this was a decision which the Sole Member of the Tribunal was perfectly entitled to arrive at and one which was entirely within his discretion to arrive at and that no ground has been shown on which the High Court should have refused to make the Order.

I am satisfied that the Order made by the High Court was correct and I would dismiss the appeal.