The Judicial Power
Decisions of Government as to the appointment of judges to committees, tribunals of inquiries and boards have been upheld as valid (Haughey v. Moriarty). Similarly, administration of justice type functions have been held to be validly conferred on judges.
Neither the legislature nor the executive may interfere with the courts in their judicial / adjudicative functions. In Buckley v. Attorney General, the Sinn Féin Funds case, the Oireachtas purported to intervene directly in proceedings that were coming before the court regarding the ownership of assets held by trustees of the Sinn Féin organisation, since the early 1920.
The leaders of then Sinn Féin brought a High Court action against the trustee Power and the Attorney General seeking a declaration that the funds were the property of the party, and the payment of the funds to its honorary treasurers. The Sinn Féin Funds Act purported to provide that further proceedings in the matter should be stayed (terminated), without costs. It was held to be an unlawful usurpation of the powers of the courts.
A number of instances have occurred where legislation has been passed purporting to validate State’s unlawful acts, that have happened typically occurred because of oversight or by reason of a law being later found invalid. It appears that such laws are potentially constitutionally valid.
In Howard v OPW, a law was upheld as valid on the basis that it did not purport to validate what is unconstitutional or cause specific injustice. In this case, the High Court had held that the State’s development of land without planning permission on the assumption that it was not banned by the Planning Acts, had been incorrect. However the OPW lacked power to carry out development in question.
The State Authorities (Development and Management) Act retrospectively exempted the OPW (and other State bodies) from planning permission and conferred power of development. The validating Act provided that it should not conflict with the constitutional rights of any persons and should be subject to such limitations as are necessary to secure that it did not so conflict, but shall be otherwise be of full force and effect. The plaintiffs in the original Act were held not to suffer specific injustice, notwithstanding that it reversed the earlier judgment.
Executive Directing Judges
In Kaslow v. DPP, the Supreme Court reversed an earlier decision and held that the power of the DPP to direct a person to be sent forward for trial after the District Court had found there to be an insufficient case to answer, was unconstitutional. It involved the District Court judge’s judicial power and an attempt by the executive to reverse it was unconstitutional.
In some cases, legislation purports to make a certificate issued by the executive, conclusive as to a particular matter. This appears valid in so far as it relates to an evidential burden. If it, however, purports to determine the matter entirely, it is likely to be invalid as a usurpation of the power of the judiciary.
In the State (McElhinney) v Kelleher, the refusal of a collections licence was the subject of an appeal to the District Court. However, a Garda affidavit that the monies would be used for illegal or immoral purposes or organisation was deemed to be conclusive. This was held to contravene the separation of powers.
The role of Oireachtas Committees has been greatly enhanced over the last 30 years. The Committee of the Houses of the Oireachtas (Privilege and Procedure) Act 1976, the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act 1997 and standing orders regulate the proceedings of House Committees. The Acts are replaced by the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013.
House Committees are established by resolution of the House or both Houses in the case of Joint Committees. Different types of inquiries may be conducted by Committees. They are restricted in making findings of fact which impugning a person’s good name, in consequence of the separation of powers.
Enquiries may be made in relation to any matter including and in relation to the legislative functions of the House, the conduct of a member and holding the Government of account. This may include the proposed removal of officeholders, judges, and the President.
Limitation of Committees’ Powers
In Maguire v Ardagh, there was an enquiry by the Joint Committee on Justice and Equality, into an incident in which a person was shot dead by members of Garda Síochána. The Supreme Court found that the Committee had no inherent authority to undertake the investigation and had only the statutory powers conferred by the 1997 legislation.
The Supreme Court held that the Committee could not inquire into the truth of matters of fact concerning the events. The Supreme Court did not accept there was an inherent jurisdiction in legislatures in the Oireachtas to hold inquiries and summons witnesses etc. This required statutory provisions.
There are privileges for what members and witnesses say in inquiries. There are powers to compel persons to attend, give evidence, produce documents and discover documents. Witnesses may be examined under oath and cross-examined.
A civil servant, member of Defence Forces or an Garda Síochána may not question or express an opinion on the merits of policy or on the objectives of a Government policy or Minister or of the Attorney General.
Right to Good Name
Persons have the constitutional right to protect their good nameIn the seminal case on fair procedures, in re Haughey, it was held that a witness before a Oireachtas tribunal should be given a copy of evidence reflecting on his good name, be permitted by counsel to cross-examine accusers and be allowed to give rebutting evidence and be allowed to address the Committee in his defence.
Where a witness is before the Committees, whose reputation is impugned; he or she must be allowed to cross-examine those making accusations. It is not sufficient that the Committee allows cross-examination at the end of oral evidence and affords a limited time for cross-examination.