Politicians are set for a collision course with the courts following the landmark High Court decision to restrict sharply the scope of Oireachtas investigations.
The court yesterday upheld a challenge by 36 members of the Garda Emergency Response Unit against the conduct of the inquiry into the killing of John Carthy in Abbeylara, Co Longford, in April 2000. Oireachtas inquiries cannot make "findings of fact or expressions of opinion" which damage the good name of citizens who are not TDs or senators, the three judges found.
Members of the Abbeylara inquiry committee, which is headed by Fianna Fβil TD Mr Seβn Ardagh, are expected to agree on Tuesday to appeal the ruling to the Supreme Court.
The court decision provoked deep concern among senior Oireachtas figures, who warned a constitutional amendment would be necessary if the judgment cannot be reversed.
Fine Gael TD Mr Alan Shatter, said the ruling immediately halted the Abbeylara inquiry and another headed by Fianna Fβil TD Mr Seβn Doherty into overspending on CI╔'s mini-CTC signalling contract.
It affected "profoundly" the operation of the Oireachtas's committee system, he went on. "It creates the spectre that the DIRT inquiry that was so successful has a taint of constitutional illegality."
Last night, the Taoiseach, Mr Ahern said the 94-page reserved judgment was "very detailed" and would have to be "studied closely" by the Attorney General and other senior legal advisers.
Mr Justice Morris, Ms Justice Carroll and Mr Justice Kelly said the Oireachtas had "no inherent power" to set up inquiries that would damage reputations, or rule on facts. Such powers were not granted by either the 1937 Constitution, or the Constitution of the Free State of 1922 and were "neither normal or necessarily exercised in other democratic states".
The inquiry had acted in excess of the powers given to it by the Dβil and Seanad and in excess of authority conferred by 1997 legislation that compels individuals to appear before Oireachtas committees. Its proper task was to consider and report on the report provided by Garda Commissioner, Mr Pat Byrne, to the full Committee on Justice, Equality, Defence and Women's Rights, they found.
Furthermore, the judges rejected arguments that a court examination of the garda∅'s complaints breached the constitutional separation of the roles of the courts and the Oireachtas.
The Abbeylara inquiry has already questioned senior garda∅ about the operation and the subsequent internal investigation and was about to begin hearing from garda∅ who were at the scene.
The general secretary of the Garda Representative Association, Mr P.J. Stone said the inquiry committee should "hang their heads in shame" for the way it conducted its work. The garda∅, who were represented in court by Mr John Rogers SC, challenged the inquiry's jurisdiction after they were ordered on April 12th to give evidence.
Labour TD Mr Pat Rabbitte said the true victors would be those "who benefit from operating in secrecy, far from the public gaze" unaccountable to both the public and politicians. "If this had been the law at the time, the DIRT inquiry would have been impossible and the widespread collusion by the banks in tax evasion would never have been the subject of detailed and rigorous public scrutiny."
In a circular to TDs and senators, the parliamentary legal adviser, Ms Lia O'Hegarty, urged caution. "In order to maximise the chances of success in an appeal: the less said, the better," she wrote.
Meanwhile, it is understood the Government is to hasten the establishment of the independent Garda inspectorate and order it to investigate both Abbeylara and allegations of Garda corruption in Donegal. Headed by a judge, the 70-strong inspectorate could be operating by June 2002 to investigate allegations against garda∅.
Its reports will go to Government and will be made public.