John Delaney's silence is the fault of the Irish electorate
FAI must be placed on statutory list of public bodies and subject to State control
To understand why former FAI chief executive John Delaney “has the law” on the Joint Oireachtas committee, one needs to go back beyond the Kerins judgment he cited on Wednesday to the Abbeylara case of 2002.
The case arose when the Joint Committee on Justice and Equality sought to investigate whether a fatal shooting by the Garda in Abbeylara amounted to “unlawful killing”. This was unprecedented; which may prompt the observation that “hard cases make bad law”. For what happened next is that the Garda secured a Supreme Court ruling ordering the committee to cease its inquiry.
There was naturally significant political and public fallout, especially later when there were attempts to reform the State’s political organs, in order to make less likely a recurrence of the financial calamity of 2008-2009.
The response was the 30th Constitutional Amendment Bill 2011, which would have amended the Constitution so as effectively to reverse the Abbeylara precedent and broaden the inquiry powers of Oireachtas Committees. But this fell at the referendum hurdle.
The phoenix which arose from the ashes of the proposed amendment was the Houses of the Oireachtas (Inquiries) Act 2013, on which, or the threat of which, Oireachtas powers of investigation ultimately depend . The 2013 Act might be regarded as a legal illustration of the adage that a camel is a horse designed by a committee. In this case, the committee in question was the Supreme Court majority of five, who had decided Abbeylara.
The task facing the draftsman was to include powers to establish appropriate inquiries, so far as could be done without courting the constitutional dangers which were contained in the five judgments, totalling 150 pages. But these were anything but clear and precise.
Given this handicap, the best the draftsman could do in the 2013 Act was to provide for Oireachtas inquiries, only if any of five possible situations exist. These had to be rather narrow not to fall foul of the guidelines given in the judgments.
The closest the Act gets to Delaney, which is not very close, is that it empowers the chief executive of a “public body” to be summoned before a committee of the Dáil to answer its questions. But, for reasons explained later, the FAI is not on the list of bodies which count as “public”.
My view is that the committee could not have put Delaney under an obligation to answer its question
So my view is that the committee could not have put Delaney under an obligation to answer its question. Where I part company with Delaney is that I think he could, if he wished (possibly with the FAI’s consent) have answered the question voluntarily.
Nor would calling up the two most recent cases about the limits of the powers of Oireachtas committees, Kerins and O’Brien, have affected the issue much either way. To begin with, these cases were not about compelling attendance or an answer to the committee’s question; but about the extent of Oireachtas immunity from matters such as privacy or defamation. A sideways point which might be recalled here is that although Kerins seems to have won, in her case, the court did go out of its way to emphasise that the Oireachtas’s immunity is no small matter.
At these bleak conclusions, the reader may throw up their hands and say: how public must “public” be? In considering this, one may usefully categorise the organisations or persons, which an Oireachtas committee might legitimately call to question, into three types.
Although Kerins seems to have won, in her case, the court did go out of its way to emphasise the Oireachtas’s immunity is no small matter
In the first place, there are classic government entities, such as departments or local authorities. In fact, these are caught, however unsatisfactorily, in the 2013 Act.
Second, there are large, even international, business organisations. The Act covers these, but only if the Oireachtas is contemplating making a law, in respect of their activities. The argument against bringing these further into the remit of the Oireachtas is that they are subject to the discipline of the market, augmented by fairly strong competition law. Going further into this would be a long story
Finally, there is the group of voluntary, often charitable or sporting bodies, of which the FAI is among the choicest fish. Traditionally, it has been regarded as inappropriate for these to be subject to State control or influence. Recent experience shows that this is no longer wise, if it ever was; and it would be well to add the FAI to the statutory list of public bodies. Quickly.
To conclude, if you are one of the people who voted against the 2011 constitutional amendment or who formed part of the court majority, in Abbeylara, I hope you will not have the effrontery to blame “the politicians” for what has happened.
David Gwynn Morgan is emeritus professor of law at UCC