A Supreme Court judge has concluded that the Oireachtas had power to establish the parliamentary subcommittee examining the Abbeylara incident and that the committee could make non-binding findings of fact, provided constitutional rights and fair procedures were protected.
Mr Justice Francis D Murphy, delivering his judgment on April 11, 2002, said he would allow the appeal in its entirety. The proceedings arose from a challenge by a group of gardaí to the inquiry being undertaken by the Oireachtas Joint Committee on Justice, Equality, Defence and Women's Rights.
Murphy J said members of the Oireachtas plainly had an implied constitutional right to gather information relevant to their legislative work, while legislation expressly permitted committees in certain circumstances to compel witnesses to attend and produce documents.
The central issue, in his view, was whether such a committee could make findings of fact. He distinguished those findings from binding judicial determinations. A parliamentary committee could express conclusions or views on matters before it, he said, but could not determine legal rights or exercise the administration of justice reserved to the courts.
Where findings could damage a person's reputation, the committee would have to observe natural justice and provide whatever procedural protections the circumstances required, potentially including the full safeguards identified in the Supreme Court's earlier Haughey case.
Murphy J said the Abbeylara inquiry was not a criminal investigation. Its stated issues largely concerned Garda procedures, training, firearms licensing, medical treatment and the circumstances surrounding the fatal shooting of John Carthy. He nevertheless anticipated substantial practical difficulties for elected politicians conducting such an inquiry while maintaining the required degree of impartiality and fair procedure.
He also rejected a challenge based on the absence of written consent when the subcommittee first issued directions under the 1997 legislation. The required committee had already unanimously approved the directions, he found; reducing that consent to writing was a statutory means of recording and proving it rather than the event that created the consent itself.
His judgment therefore favoured allowing the appeal, while leaving open whether difficulties concerning bias or fair procedures might arise as the inquiry proceeded.