Oireachtas Inquiries

Table of Contents

Purpose of Act

The purpose of the House of the Oireachtas (Inquiries, Privileges and Procedures) Act is to establish a comprehensive statutory framework for the Oireachtas to conduct inquiries within the current constitutional framework as set down by the Supreme Court in Maguire v Ardagh [2002] 1 IR 385 (The Abbeylara judgment). The Abbeylara case decided that Oireachtas inquiries do not have the power, in general, to make findings of fact adverse to the good name of any person who is not either a Member of the Houses or directly accountable to the Houses. Additionally, there are many legitimate inquiries that the Houses can undertake which would not infringe on the good name of private citizens.

The Act represents a very important step in the process of clarifying the role of the Houses of the Oireachtas in securing accountability through investigations into matters of significant public importance. The approach represents the best assessment of what is constitutionally permissible based on:

the tenor of the Supreme Court judgments in the Abbeylara case;
the conclusions of the report of the Joint Oireachtas Committee on the Constitution (January 2011) on the parliamentary power of inquiry which drew on the advice of several constitutional experts;
the comprehensive legal advice obtained by the Department of Public Expenditure and Reform from the Office of the Attorney General and counsel both in advance of and subsequent to the October 2011 referendum.

The Act provides specific statutory underpinning for five general types of Oireachtas inquiries ranging from inquiries limited to recording and reporting evidence to inquiries of an adjudicative nature where this flows from the existing constitutional powers of the Oireachtas. It is anticipated that the Act would facilitate a Banking Inquiry, however, the primary purpose of the Act is to create a legislative framework for Oireachtas inquiries, outside the normal day to day work of the Oireachtas and Oireachtas Committees, which is of general application.

The legislation provides that an inquiry may not take place unless the House or Houses concerned have passed a resolution in accordance with the rules and standing orders of the Houses. The Act contains explicit requirements to observe fair procedures and contains provisions in relation to the behaviour of Members to avoid any perception of bias. Access to the courts for directions in respect of any dispute is clearly provided for in the Act.

This legislation replaced the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997. The Act will amend and simplify the law on compellability of witnesses, which will apply both to inquiries and to committees conducting other committee business which have power to send for persons, papers and records.

There are extensive provisions in relation to costs contained in the Act including:

the creation of a panel of legal cost accountants who may be appointed by the Minister to act as a ‘‘Parliamentary Legal Costs Adjudicator’’ for the adjudication of parliamentary costs;
provisions for the Oireachtas Commission to prepare guidelines in respect of payment of costs;
a requirement for an estimate of costs to be incurred in conducting an inquiry to be placed before the House(s);
the making of an award of costs against a third party who fails to comply with a direction or requirement or otherwise obstructs an investigation.

The Act provides for application for costs where the good name of a witness may be at issue.

It provides for a qualified statutory privilege for private papers of Members and official documents of the Houses. These provisions are intended to apply in all circumstances and are not restricted to inquiries carried out under the Act. It also provides for qualified privilege for confidential communication from members of the public who wish to draw wrongdoing to the attention of Members of the Houses of the Oireachtas without having their identities disclosed.

Types of Inquiries that may be Conducted

There are five separate types of inquiry within existing constitutional parameters under Part 2 of the 2013 Act.
There may be an inquiry limited to recording and reporting evidence and making findings of uncontested fact or findings of relevant misbehaviour (i.e., non-cooperation with the Inquiry).
There is a provision for an inquiry relating to the exercise of any one or more legislative functions including whether there is a need for new legislation.
There is an inquiry in relation to the removal of certain officeholders as provided for in the Constitution or in other legislation.
There is a power of inquiry relating to the conduct of a Member of either House of the Oireachtas.

Dáil Éireann has the power to undertake an inquiry into the conduct of a current officeholder, senior civil servant or a CEO of a public body who is liable to be held to account by Dáil Éireann by virtue of the terms of his or her contract or statutory appointment.

There is a parliamentary mechanism whereby a proposal by a committee to conduct an inquiry is assessed by the individual or committee designated by the rules and standing orders of the House(s).

There is provision for the setting of terms of reference of a Part 2 inquiry.

The Act outlines the finding of failure to co-operate with a Part 2 inquiry that a committee conducting a Part 2 inquiry is entitled to make.

Inquiries to Observe Fair Procedures

Fair procedures are to be observed when a committee is conducting an inquiry pursuant to the Act. The Act limits findings of fact which directly impugn a person’s good name to certain categories of people.

The Act governs the privileges and immunities of a person giving evidence to, or who produces or sends documents to a House or committee conducting a Part 2 inquiry. The 2013 Act

permits the committee designated by the rules and standing orders of the House(s) to issue guidelines, consistent with the Act, relating to the procedures of Part 2 inquiries.
authorises the Chairperson of an inquiry to issue directions in relation to compliance with the Act.
prohibits a Member of the House(s) from sitting on a committee where a perception of bias might arise in a reasonable
sets out certain rights of witnesses to the
outlines the obligations on the Chairperson where the good name of a person is directly impugned.
outlines the rights of persons in respect of whom the House is entitled to make findings that directly impugn their good
contains rights for persons not covered above who, in the course of a Part 2 inquiry, are referred to by name or in such other manner as to be capable of being

The committee conducting a Part 2 inquiry is to give notice of intention to exercise powers in relation to compellability and affords the person an opportunity to make submissions.

The 2013 imposes the civil standard of burden of proof on a committee making a finding of fact and requires it to give reasons for findings adversely affecting the good name of a person. It obliges a committee conducting a Part 2 inquiry to inform witnesses of its powers and to advise them of their rights and obligations prior to giving evidence.

The 2013 Act defines evidence that is not admissible in certain proceedings. It outlines circumstances in which documents or information must be preserved.

The 2013 Act makes provision for Part 2 inquiries to be held in public. It contains offences in relation to Part 3.

Reports and Certain Confidential Documents Concerning

Part 2 Inquiries

There is provision for the form and content of a final report to be prepared at the conclusion of a Part 2 inquiry. There may be interim reports.

A draft of a report is to be provided to certain people. The disclosure of a draft report is prohibited.

There are provisions for the confidentiality of documents relating to a Part 2 inquiry.

Where a person receives a draft report which they believe contains commercially sensitive material they may make a statement requesting that the relevant information be omitted.

There is a procedure whereby a request can be made by a person who has received a draft report to a committee to amend a draft report in certain circumstances. There are provisions for the publication of a final report and also interim reports.

There are contains offences in relation to Part 4.

A committee, prior to conducting a Part 2 inquiry, is to prepare a report containing an estimate of the sum of Part 2 inquiry legal costs and Part 2 inquiry expenses to be incurred in conducting the inquiry.

The Act provides for the appointment of a panel of legal costs accountants willing and able to act as a parliamentary legal costs adjudicator in certain circumstances. The Act governs the powers of the parliamentary legal cost’s adjudicator.

Inquiry legal costs

The Oireachtas Commission may issue guidelines in respect of Part 2 inquiry legal costs. There is provision for the recoupment of third party costs in specified circumstances.

The Oireachtas Commission may direct certain persons in relation to the payment of costs in specified circumstances. There is a provision for the payment of Part 2 inquiry legal costs by the Oireachtas Commission.

The 2013 Act prohibits the initiation of proceedings for the recoupment of costs until three months following the delivery of the Act of costs or, if the Act of costs is referred for adjudication, until the costs are finally certified. There is provision for an application for assessment of Part 2 inquiry legal costs. Certificates of costs may be issued.

The The Oireachtas Commission may issue guidelines in respect of Part 2 inquiry expenses. There is provision for payment by the Oireachtas Commission of Part 2 inquiry expenses.

The Oireachtas Commission may direct certain persons in relation to the payment of expenses in specified circumstances.

Private Act legal costs

The Oireachtas Commission may issue guidelines in respect of private Act legal costs. There is provision for the award of private Act legal costs to a promoter. There is provision for the award of private Act legal costs to petitioners.

The 2013 Act prohibits the initiation of proceedings for the recovery of any private Act legal costs until three months following the delivery of the Act of costs or, if the Act of costs is referred for adjudication, until the costs are finally certified.

There are provisions relating to the adjudication of private Act legal costs with issuance of certificates of costs. The provisions of Part 5 shall, with all necessary modifications, apply to the ascertainment or adjudication of any other parliamentary costs.

The Oireachtas Commission may specify the form of documents required for the purposes of this Part. There are offences in relation to Part 5.

Compellability, Privileges and Immunities in relation to Part 2 Inquiries

Part 6 of the 2013 Act will only apply to a committee whilst it is conducting a Part 2 inquiry and on which a power to send for persons, papers and records is conferred by the House(s).

The 2013 Acc

outlines the powers of a committee in relation to obtaining evidence.
allows Irish citizens abroad and non-nationals in Ireland to be subject to compellability.
makes provisions allowing for certain officeholders and members of the judiciary to be compelled to appear before and provide evidence to a committee in certain
prohibits a committee from procuring evidence that is r
provides for the exemption of certain evidence.
makes provision for declarations to be issued in relation to certain exempt evidence which was the subject of a direction in certain circumstances.
makes provision for circumstances where a direction is given to a person in his or her capacity as an employee or as a representative of a House or committee.

There are offences in relation to Part 6.

Compellability, Privileges and Immunities Other Enquiries

Chapters 2 and 3 of Part 7 only apply to a committee which has the power to send for persons, papers and records while it is exercising compellability powers and conducting committee business that is not a Part 2 inquiry.

There is provision which

governs the privileges and immunities of a person giving evidence to, or who produces or sends documents to a committee.
empowers the Oireachtas Commission to issue guidelines relating to the procedures of committees not conducting a Part 2 inquiry.
contains rights for persons who, in the course of ordinary committee business, are referred to by name or in such other manner as to be capable of being identified.
defines evidence that is not admissible in certain
contains offences in relation to Part 7 Chapter

Directions that may be given by a committee conducting other committee business and related matters

The Act

outlines the powers of a committee to obtain documents
allows Irish citizens abroad and non-nationals in Ireland to be subject to compellability.
prohibits a committee from procuring certain evidence t
provides for the exemption of certain evidence
makes provision for declarations to be issued in relation to certain exempt evidence which was the subject of the direction above in certain circumstances.
makes provision for circumstances where a direction is given to a person in his or her capacity as an employee or as a representative of a House or committee.
contains offences in relation to Part 7 Chapter

Oireachtas Commission may pay expenses of witnesses etc.

The Oireachtas Commission may pay the reasonable expenses of a witness in proceedings before a committee.

Privilege and Immunity

A member of either House shall not be amenable to any court and authority other than the House by which the relevant committee was appointed in respect of any utterance in or before a committee. It also provides that certain documents may be privileged. There are restrictions on the evidence of certain persons.

Applications to the High Court .

There may be an application to the High Court for directions in relation to relevant proceedings where a person is of the opinion that any matter relating to the proceedings is not being inquired into or otherwise dealt with in accordance with the Act.

An application may be made to the High Court when a committee is of the opinion that a report could prejudice any criminal proceedings.

There may be a direction by the Oireachtas Commission to a person to pay Part 2 inquiry costs, Part 2 inquiry expenses or private Act legal costs shall not take effect until it is confirmed by the High Court.

The High Court may authorise the commencement of proceedings for the recovery of costs prior to the expiration of three months following the delivery of notice.

A parliamentary legal costs adjudicator may refer a question of law arising in the context of an application for an adjudication of Part 2 inquiry costs or private Act legal costs to the High Court for the opinion of the Court.

A committee may apply to the High Court where a person fails to comply with a direction. There is an appeal to the High Court against certain directions

A committee may apply to the High Court to request the disapplication of certain provision in certain circumstances.

The High Court has the discretion to hear certain matters related to the Act otherwise than in public if the Court is satisfied that it is just and reasonable to do so. The Court has discretion to make such related orders as it considers just and reasonable in the circumstances in any application made to it pursuant to the Act.

Privileges in Relation to Private Papers and Confidential Communications

The 2013 Act provides qualified privilege for the private papers of members and for confidential communications to members. It outlines circumstances where communication may or may not be disclosed. It provides for the determination of what constitutes a private paper or confidential communication.

Guidelines may be developed by the Houses of the Oireachtas. Arrangements apply to the private papers or confidential communications of former or deceased Members of the Houses. There is provision for the protection of private papers during the giving of evidence.

There are applicable offences in relation to Part 10.

Privilege in Relation to Official Documents

There is power to make rules designating categories of official documents. There is qualified privilege for official documents of the Houses. There is protection of official documents during the giving of evidence. There are offences in relation to Part 11.

The Act governs the power of either of the Houses of the Oireachtas and any committee to examine witnesses and administer oaths. It gives a committee power to require evidence on oath. It contains offences in relation to Part 12.

Miscellaneous

There is provision for offences by bodies corporate. There provision for proceedings in court.

A prosecution for an offence under the Act may be brought only by or with the consent of the DPP.

The discontinuation of a Part 2 inquiry or the termination of other committee business or the dissolution of either House will not prevent any court proceedings from being taken or terminate any on-going court proceedings.

The 2013 Act contains restrictions on the Freedom of Information Acts 1997 and 2003.