A High Court decision yesterday upholding two significant challenges by the Fianna Fail TD Mr Liam Lawlor to orders by the Flood tribunal is expected to have serious implications for the tribunal's work.
The tribunal is appealing the matter to the Supreme Court. A date for the appeal will be fixed on Tuesday.
In a reserved judgment, Mr Justice Kearns granted Mr Lawlor's application to quash two tribunal orders directing him to appear before tribunal lawyers in private session and answer questions and to swear an affidavit detailing any companies in which he had an interest between 1987 and 1994.
The judge refused the TD's application to quash a third order directing him to produce documents covering payments made to him by Arlington Securities plc and/or Mr Thomas Gilmartin and other documents regarding his bank/building society accounts between 1987 and 1994.
He awarded costs to Mr Lawlor but put a stay on that award in the event of an appeal.
During an eight-day hearing last month it emerged that the central issue in the case was the interpretation of Section 4 of the Tribunals of Inquiry Evidence Act, 1979, which states: "A tribunal may make such orders as it considers necessary for the purposes of its functions and it shall have, in relation to their making, all such powers, rights and privileges as are vested in the High Court or a judge of that court in respect of the making of orders."
Mr Justice Kearns upheld Mr Lawlor's claim that the section should be construed as entitling a tribunal to make such orders as it considered necessary but, in the making of those orders, tribunals only had the powers of the High Court and no greater powers.
The tribunal had argued that Section 4 should be read disjunctively so as to mean that a tribunal might, within the law, make any order it regarded as relevant to its terms and necessary for the performance of its functions, subject only to the limitation that the order was made on an opinion held in good faith, factually sustainable and not unreasonable.
Tribunal counsel argued that the second part of the section merely described certain features regarding the making of orders by the High Court.
Mr Justice Kearns disagreed. He said the power contended for by the tribunal would require the enactment of legislation. He found there were no disjunctive words in Section 4 and held the second part of the section was merely explanatory of the first.
He held there was a syntactical ambiguity in Section 4 arising from the words "in respect of the making of orders" because there was a possibility that the words could apply either to the scope and range of the order or to the mere mechanical and incidental features of the making of the order.
Ordinary canons of statutory construction, particularly those of common sense, suggested that tribunals had the powers of the High Court, and only those powers, to order certain things.
He also held that the construction argued for by the tribunal invoked canons on strict construction and doubtful penalisation because the effect of Section 4, taken in conjunction with Section 3 of the 1979 Act, might have penal implications for a person who failed to comply with such an order as that directing Mr Lawlor to attend before tribunal lawyers and answer questions. He also held that a power of such substance could not be delegated by the tribunal chairman to any other person.
"If either the tribunal or Oireachtas feel that the present powers of tribunals are inadequate for the proper discharge of the functions of a tribunal, legislation can be introduced to widen and extend powers along the lines of investigations undertaken under the Companies Act, 1990," he added.
Dealing with the second order directing Mr Lawlor to produce documents regarding certain payments to him and relating to accounts in financial institutions between 1987 and 94, the judge held the tribunal had jurisdiction to make that order.
He rejected Mr Lawlor's arguments that the order was a "trawl" and lacked fair procedures in that the tribunal had given him insufficient details about the allegations against him and their sources.
As the order was made as part of the preliminary work of the tribunal, there could be no question of requiring the tribunal to disclose its hand fully and provide all the information in its possession at that stage.
Quashing the third order directing Mr Lawlor to swear an affidavit detailing any companies in which he had an interest between 1987 and 94, the judge found the tribunal had no jurisdiction to compel any person, and particularly a person against whom adverse allegations were being raised, to swear such an affidavit.
In the light of his finding that tribunals have only the powers of the High Court in making orders, and as the High Court could not direct such an affidavit, neither could the tribunal. A clear statutory mandate was required for such an order.
The judge said the same right - the right to silence - was compromised by that order and the first one.
If he was wrong on the jurisdiction point, the judge also found the concept of fair procedures did apply when a person was compelled to commit himself to a sworn affidavit in the absence of knowledge of the body of detailed evidence against him. An affidavit made in such circumstances formed part of the evidence before the tribunal and could be used at any public hearing, not least to cross-examine Mr Lawlor.
Without knowing the full details of the case against him, Mr Lawlor would be seriously disadvantaged at any public hearing had he sworn an affidavit at an earlier stage which was significantly deficient in any respect for reasons of which he might not have been aware at the time.
Afterwards, Mr Lawlor said he and his lawyers had always co-operated with the tribunal but he was entitled to be given details of allegations, if there were any, being made against him before being required to respond to them.
"I don't know what, if anything, I'm being accused of," he said. "I've no problem answering questions, but I need to know what they are." If details were put in the post to him on Monday, he would respond on Tuesday.
Mr Lawlor said he had no desire to delay the work of the tribunal or the courts, but it was about time the rules of the High Court were applied to the work of the tribunal.
