Back to Chapter 3. The Banking Inquiry in Numbers

Chapter 4. Constitutional and Statutory Framework for Oireachtas Inquiries

Pathway to the 2013 Act

4.1	In its 2002 Abbeylara judgement⁴, the Supreme Court held that the Houses of the Oireachtas have no inherent constitutional power to make findings which impugn the good name of individuals who were not members of the Oireachtas. This judgement effectively sounded the death knell for parliamentary inquiries over the next decade.
4.2	Building on various analyses conducted in the intervening period⁵, the March 2011 Programme for Government contained a commitment to hold a Referendum to amend the Constitution “to reverse the effects of the Abbeylara judgment to enable Oireachtas committees to carry out full investigations”.
4.3	The Bill to amend the Constitution was passed by the Houses on 22 September 2011. However, the proposal to amend the Constitution was rejected by Referendum held on 27 November 2011 with 812,008 votes in favour (46.6%) and 928,175 votes against (53.3%).
4.4	The Government subsequently decided to introduce legislation setting out a comprehensive statutory framework for parliamentary inquiries within the current Constitutional parameters. The Houses of the Oireachtas (Inquiries, Privileges and Procedures) Bill 2013 was published by the Minister for Public Expenditure and Reform in May 2013 and was enacted on 24 July 2013. The Minister commenced the Act on 25 September 2013⁶.
4.5	The Act required the Houses of the Oireachtas to adopt internal rules (“Standing Orders”) to facilitate the holding of inquiries: the relevant Standing Orders were adopted by both Houses by early February 2014, clearing the way for the establishment of the first parliamentary inquiry under the new legislation.

The Abbeylara principle

4.6	It is important to emphasise, as the Minister for Public Expenditure and Reform did in the debate on the 2013 Act, that there has been no change to the Constitutional framework for parliamentary inquiries. The Abbeylara principles and general principles of fair procedures still apply to the work of Oireachtas inquiries.
4.7	These principles are reflected throughout the 2013 Act, which contains many provisions designed to ensure fair procedures to protect the good names of persons and institutions throughout the inquiry process, from compelling documents and witnesses, to considering evidence, to drafting the inquiry report.
4.8	From a public perspective, the general constitutional principles governing the work of parliamentary inquiries can be difficult to explain and understand. They are certainly onerous on parliamentary Joint Committees and create complexity both internally, in running and managing the inquiry, but also in communicating the work of the inquiry to an external audience.
4.9	As the first post-Abbeylara inquiry, it is the firm belief of the Joint Committee that, while the Constitutional framework creates challenges and complexity, there is a clear place for, and value to be gained from, parliamentary inquiries into significant issues of public policy.

Powers of the Joint Committee to make findings

4.10	The 2013 Act provides for a number of different types of parliamentary inquiry. The Banking Inquiry is an “inquire, record, report” inquiry under section 7 of Part 2 of the Act (a so-called “Part 2 Inquiry”), where the primary purpose is to record evidence and report on the evidence⁷.
4.11	As a Part 2 inquiry, the Banking Inquiry had very limited power to make findings of fact, which could only be made where the evidence on which the finding is based was not contradicted⁸. The Joint Committee could make recommendations arising from findings of fact⁹.
4.12	The inquiry could make findings which impugn a person’s good name only where this had not been contradicted, including by the person themselves. A person also includes an institution. Based on this restriction, such a finding is unlikely, if ever, to arise in practice. However the Joint Committee could outline material contradictions in evidence, allowing the public to draw their own conclusions on conflicting evidence.
4.13	The only exception to the “uncontradicted” rule for findings of fact is for a finding of “relevant misbehaviour”, which is essentially a finding of non-cooperation with the inquiry. The Joint Committee did not make any formal findings on this ground, however this report details areas where the Joint Committee was critical of individual and institutional engagement with the inquiry.
4.14	The most important and core function of an “inquire, record, report” inquiry is the power to make findings that any matter relating to “systems, practices, procedures or policy or arrangements for the implementation of policy” ought to have been carried out differently¹⁰. The inquiry can also make recommendations on such findings¹¹.
4.15	The standard of proof for making findings of fact is the balance of probabilities¹². The Joint Committee must give reasons in writing for any such findings¹³. The Act requires the final report to set out the evidence and the findings of fact including of relevant misbehaviour¹⁴.
4.16	Section 7 inquiries have very limited power to make findings of fact (i.e. only where there is uncontradicted evidence) yet these inquiries have the same onerous obligations in terms of fair procedures and consultation as other Part 2 Inquiries with much more significant powers to make findings of fact. Even though it had very limited powers to make findings, the Banking Inquiry had to meet a high bar in terms of its procedures and processes in order to protect the good name of institutions and witnesses.
4.17	Serious consideration should be given to creating a specific type of “inquire, record, report” inquiry, solely with power to make findings in relation to systems, practices, procedures or policy, and with no power to make findings of fact in relation to a person who was not a member of the Houses. Fair procedures requirements should then be set at an appropriate level for this limited power to make findings. The current limitation that findings can only be made on uncontradicted evidence could therefore be removed, because this new type of inquiry should not affect a person’s good name.
4.18	The Joint Committee recommends that the 2013 Act be amended to create a specific type of “inquire, record, report” inquiry, with power to make findings in relation to systems, practices, procedures or policy only. While this type of inquiry would have no power to make findings of fact in relation to a person who was not a member of the Houses, it would be subject to less onerous obligations in terms of fair procedures and consultation as a result.

Criminal or civil liability and criminal proceedings

4.19

The Joint Committee’s statutory role reflects the separate and distinct constitutional roles of the Houses of the Oireachtas and the Courts. The Joint Committee could not make findings of criminal or civil liability¹⁵ (for example it could not make findings that a person was guilty of professional negligence).

4.20

Equally, in order to respect the role of the Courts and judicial process, the Joint Committee could not compel evidence if the evidence or document could, if given to it, reasonably be expected to prejudice any criminal proceedings pending or in progress in the State or any criminal investigations being conducted in the State¹⁶. This had a number of impacts on the work of the Banking Inquiry, details of which are outlined in this Volume.

Bias

4.21	The 2013 Act contains specific provisions to deal with bias arising in the conduct of parliamentary inquiries.
4.22	It is open to any person to make a submission to the Committee on Procedure and Privileges (CPP) of the relevant House claiming that a perception of bias might arise in a reasonable person in relation to a member appointed to take part in a Part 2 Inquiry, and this process could ultimately result in the removal of such member from the Joint Committee and compromise the Inquiry.
4.23	The Act and Standing Orders¹⁷ also allow a member of an Inquiry Committee to recuse themselves where they believe a perception of bias arises. This procedure was not formally invoked during the Banking Inquiry.
4.24	The Joint Committee was mindful of the rules in relation to bias in the conduct of the inquiry. On a limited number of occasions, individual members of the Joint Committee privately advised the Chairman and Joint Committee Clerk of their view that a perception of conflict of interest on their part could arise with the witness listed, and that they therefore did not wish to participate in the questioning of that witness to avoid any perception of bias.
4.25	The Joint Committee also agreed a protocol on management of conflict in relation to deliberations on the report. Any Joint Committee member who felt that there was a risk of perception of conflict of interest in relation to report content on a witness or institution was advised to notify the Clerk to the Joint Committee and the Chairman to that effect and to adopt a passive role in Joint Committee deliberations on that content¹⁸.
4.26	The Joint Committee welcomes the fact that no submissions in relation to bias have been made to the CPPs since the Joint Committee obtained its formal powers as a Part 2 Inquiry Committee¹⁹.

Cabinet confidentiality

4.27	Cabinet confidentiality is provided for in Article 28.4.3 of the Constitution and is a binding obligation which cannot be waived either by individual members of the Government or by a later subsequent Government.
4.28	In preparing the relevant proposal, the Joint Committee initially had concerns that Cabinet confidentiality and the relevant provisions of the Act²⁰, could restrict the extent to which the Joint Committee could consider certain matters relevant to the Inquiry.
4.29	Having taken legal advice, the Joint Committee was satisfied that, while Cabinet confidentiality protects the contents and details of discussions at meetings of the Government, it does not extend to the actual decisions made, or the documentary evidence used in the run up to the decision. Documents which were created for another purpose and which were used by Cabinet in making its decision are, in a similar vein, not covered by Cabinet confidentiality.
4.30	Initial concerns about Cabinet confidentiality did not impact on the work of the Inquiry in terms of public hearings. In the absence of a detailed compliance review (see Chapter 7 for details), the Joint Committee is not in a position to assess whether there was a material impact in terms of documentation.

Chapter 4 Footnotes
4. Martin Maguire and others Applicants v. Seán Ardagh and others, Ireland and the Attorney General Respondents [2001No. 329 JR; S.C. Nos. 324, 326, 333 and 334 of 2001]: Supreme Court 11 April 2002.

5. In his speech on the Thirtieth Amendment of the Constitution Bill (Seanad Éireann, 22 September 2011), the Minister for Public Expenditure and Reform highlighted the work of the Law Reform Commission: Consultation Paper on Public Inquiries [LRC CP 22-2003], and the work of the Joint Committee on the Constitution: Article 15 of the Constitution: Review of the Parliamentary Power of Inquiry [Fifth Report, January 2011 – A11/0140].

6. S.I. No. 362 of 2013.

7. Section 7(1)((a) and (b)

8. by a witness or any other person in the inquiry or in a court, tribunal or commission – see Section 7(1)(c) and s.7(2)

9. Section 7(1)(d)

10. Section 17(3)(a)

11. Section 17(3)(b)

12. Section 27(a)

13. Section 27(b)

14. Section 33(1).

15. Section 17(2)(b)

16. Section 71(1)(c)

17. Section 21(3) , Dáil Standing Orders 97A & 97B and Seanad Standing Orders 85A & 85B