Wednesday, April 27, 2011

Vincent Browne on Oireachtas Inquiry into Banking Crisis

Vincent Browne has an interesting op-ed in the Irish Times today arguing against an Oireachtas inquiry into the banking crisis. I've had plenty to say on this topic in the past on this blog and in the media, and I am in substantial agreement with many of Vincent's arguments. I disagree with his prescription for a judicial inquiry. Based on previous experience in the U.S., I think an independent commission would be superior to a judicial inquiry. This commission, as I've previously argued, should have a set timetable - 1 year for instance - and be given a fixed budget. It should be comprised of experts - some with a strong legal/prosecutorial background - and be manifestly free of conflicts of interest. It should be mandated to produce a report in that time-frame.

In the light of prevailing fears about the unconstitutionality of Oireachtas inquiry powers, it might be useful to have a close look at the language in the Abbeylara case. Chief Justice Keane wrote a superb dissent that is well reasoned and scholarly in its analysis of comparative constitutional law. Some extracts:

The Oireachtas, like any other body or person in the country, is entitled to keep itself informed and, for that purpose, to initiate inquiries, provided that, in so doing, it does not infringe the law. That is not in any way in dispute in this case. Nor was it seriously contended on behalf of the applicants that the Oireachtas was precluded from establishing a fact-finding committee to investigate and reach conclusions on particular matters which might be relevant to the exercise by them of their legislative function. Thus, it was conceded that there could be no legal inhibition on their establishing a committee to investigate and report to them on a particular topic of scientific controversy in order that they might consider the possibility of and, if thought appropriate, enact, legislation dealing with the topic. The challenge in these proceedings is to the establishment of a body, such as the sub-committee, charged with what the Divisional Court and the written submissions on behalf of the applicants describe as "adjudicative functions", the conclusions of which may affect the good name and reputation of persons, such as the applicants, who are not members of either House of the Oireachtas. The description of those functions as an "adjudication" is, in my view, inappropriate and calculated to mislead. The latin root of the word and the definition to be found in the Oxford English Dictionary (Vol. 1), make it clear that one of its primary meanings is "a judicial sentence or award". The report of a body such as the sub-committee is, however, entirely devoid of any legal effect (that is not say, of course, that it is devoid of factual effect. If I drive my car carefully down the street but injure a pedestrian who walks in front of it, my driving will have serious factual consequences. It will remain devoid of legal effect.) Its findings do not determine any legal rights or obligations and represent no more than the opinions its members have formed on the material placed before them, whether in documentary or oral form. Unlike the orders of courts established under the Constitution or awards and determinations of the many tribunals which are not courts but exercise quasi-judicial functions, the findings of a body such as the sub-committee can be wholly ignored or disregarded by persons referred to in their report without the slightest possibility of any legal sanction being imposed upon them as a result.

... they clearly considered themselves entitled to reach a conclusion ... which, in a court of law, might support a verdict of unlawful killing. But the fact that the sub-committee could arrive at such a finding does not mean that they would be "adjudicating" on the issue, as that expression is properly understood, still less that they were arriving at a finding which was in any way whatever equivalent to the verdict of a court in criminal proceedings or, for that matter, the judgment of a court in civil proceedings arising out of the same event.
What seems to have been entirely lost sight of, however, is that a finding of fact - or more accurately, an opinion arrived at by a body such as the sub-committee on the oral or documentary evidence placed before it - is no more than that: it cannot as a matter of law be equated with the verdict of a court of competent criminal jurisdiction or the judgment of a court of competent civil jurisdiction. Such judgments and orders are, under the Constitution, the exclusive prerogative of the courts established under the Constitution, save for those limited matters of a non-criminal nature in respect of which what are normally described as quasi-judicial determinations may be made by bodies other than courts under Article 37 of the Constitution.
The right of persons in the position of the applicants to their good name must be balanced against the right, and indeed the duty, of the Oireachtas to inquire into and inform themselves as to matters which are relevant to the discharge by them of their constitutional functions. It is accepted by the Attorney General that not merely must the inquiry proposed to be conducted by the Oireachtas relate to the discharge by it of its constitutional function: the employment of this instrument, affecting as it may the constitutional rights of persons outside the Oireachtas, must be proportionate to the objective to be achieved. 

The chief justice quoted Costello J. in Goodman International v. Mr. Justice Hamilton  [1992] 2 I.R. 542:
"The terms of reference in this case require the Tribunal to inquire into the truth or falsity of a number of allegations of wrongdoing including assertions that the criminal law has been breached. But in inquiring into these allegations and in reporting its opinion on them theTribunal is not imposing any liabilities or affecting any rights. It is not deciding any controversy as to the existence of any legal right. It is not making any determination of any rights or liabilities. It is not imposing any penalties. It may come to the conclusion that some or all of the allegations of wrongdoing are true,but this opinion is devoid of legal consequences . Its functions of inquiring, reporting and recommending cannot therefore be regarded as the 'administration of justice'."
Goodman International v. Mr. Justice Hamilton  [1992] 2 I.R. 542 is put beyond any doubt by the judgments in this court. Finlay C.J., in addition to upholding the view of Costello J. as did the other members of the court, that such an inquiry was in no sense a "trial" but was rather a "simple fact finding operation reporting to the legislature", also referred to the resolution as one which "directed the tribunal" to inquire into the specified matters. Even more emphatically, if that were possible, the same view was expressed by Hederman J who said at p. 597:-
"While Article 15, s. 10 of the Constitution provides that each House of the Oireachtas shall make its own rules and standing orders, with power to attach penalties for their infringement, and provides that each house shall have power to ensure freedom of debate, to protect its official documents and the private papers of its members and to protect itself and its members against any person or persons interfering with, molesting or attempting to corrupt its members in the exercise of their duties, it does not provide for the establishment of parliamentary tribunals. But in any parliamentary democracy it is essential that the parliament should have powers to initiate inquiries…" [emphasis added]
Hederman J. also cited at p. 598  Watkins v. United States  (1957) 354 U.S. 178 as authority for the proposition that:-
"The [United States] Supreme Court has held that the power to conduct investigations 'is inherent in the legislative process'."
The High Court's treatment of very persuasive U.S. authority holding that congress has the power to conduct inquiries had been thoroughly baffling. Keane CJ was of the same view:

Counsel for the applicants sought to distinguish this powerful current of authority in the Unites States Supreme Court on two grounds. First, they argued that, as in England, the cases proceeded on the basis that the power to inquire which was inherent in the legislative process could not exist without the consequential power to secure the attendance of witnesses and the production of documentary evidence. Since that consequential power was not inherent in, or expressly conferred, on the Oireachtas, they urged, the power of inquiry, to which it was consequential, could not exist either.
The Divisional Court was impressed by this argument: I have to say, with respect, that I find it bafflingly illogical. If the power to inquire is pointless and meaningless without the consequential power (and it is highly debatable whether that is so - if a civil servant of any rank had been requested to appear before an inquiry being conducted by the Committee of Public Accounts before the passage of the Act of 1997, could it be seriously suggested that he or she would have fearlessly refused to do so?), the consequence should be either a finding by the courts that it exists as a necessary consequence of the inherent power (as in England and the United States) or the enactment of legislation conferring it (as in Ireland). To treat it as a ground for supposing that the bare power to inquire does not exist in the first place is, to put it mildly, mystifying.

Justice Murphy's dissent also deserves quotation:
... the right of members of the Oireachtas, whether individually or collectively, to obtain information is implicit in the Constitution and the right, in certain circumstances, to compel members of the public to provide such information under oath is expressly conferred by statute. The real concern, as I see it, relates to the power or duty of a sub-committee of the Oireachtas "to make a finding of fact"....
The Oireachtas cannot usurp the functions of the courts (see Buckley and others (Sinn Féin) v. Attorney General and another  [1950] I.R. 67). Neither can any other person or body exercise the judicial function which the Constitution exclusively vested in the judiciary (see  In re Solicitors Act, 1954  [1960] I.R. 239). Similarly the courts have no jurisdiction to substitute for impugned legislation a form of enactment which it considers desirable or to indicate to the Oireachtas the appropriate form of enactment which should be substituted for the condemned legislation (see  Somjee v. Minister for Justice  [1981] I.L.R.M. 324 and  MacMathúna v. Attorney General  [1995] 1 I.R. 484. The legislature cannot confer on itself, or any other person or body, a power or duty, in whatever terms expressed, which would amount to the exercise of the judicial function.
If, for example, the Committee of Public Accounts continued with the inquiry which, on the 1st December, 1970, Dáil Éireann had directed it to undertake, and upheld the contention of Chief Superintendent John P. Fleming to the effect that Mr. Padraig Haughey was guilty of a criminal offence, that conclusion would not have enabled the committee, or indeed any court of law, to impose any penalty by reference to that finding or conclusion.
I would readily infer that the Oireachtas had power to confer on a sub-committee a power to make findings of fact in the sense that those findings represented the views of the committee or a majority of them on any matter which might be in controversy. The fact that the findings might of themselves have serious repercussions, or that the publication thereof might cause damage to the reputation of witnesses or other members of the public, is regrettable but unavoidable. This contingency is adequately provided for by the well established requirement that any such witness must be afforded such protection as the circumstances require extending if necessary to what is described as "the full panoply of the  Haughey  rights ( re Haughey  [1971] I.R. 217)". I accept therefore that a sub-committee of the Oireachtas may be empowered to gather information, compel witnesses to attend before it and to make findings of fact on any issue properly raised before it. More particularly I am satisfied that such power can be exercised without the enactment of further legislation. It is not challenged by the applicants that a right to conduct an inquiry challenged in these proceedings could be validly taken or conferred by legislation enacted in that behalf.

Justice Murray's judgment, part of the majority of the court, provides support for the view that an appropriately limited inquiry by an Oireachtas committee might be constitutional:

I think the Attorney General is correct when he submits that there is nothing in the Constitution to inhibit or prohibit the Oireachtas from conducting or initiating inquiries as such . The fact that the Houses of the Oireachtas may conduct or initiate inquiries to obtain information or ascertain facts does not derive from an inherent power peculiar to its role and function as a representative democratic parliament, although its desire to do so in any particular case would indeed be related to such functions. But once an inquiry is conducted within the law and the Constitution, it seems to me it is axiomatic that the national parliament, like many other even private bodies, may conduct an inquiry for their own purposes. It is not restricted from doing so.
It is difficult to envisage then that the Constitution of 1922 or that of 1937 would, silently, ordain that the Oireachtas should have power to establish and conduct inquiries and make findings as to the personal culpability of individual citizens for serious wrongdoing. As I have pointed out earlier, when the Constitution gave specific and special powers to the Oireachtas to adjudicate on the conduct of its own members and on other persons and office holders who were not members, it did so explicitly. I think it can be fairly said that if the Constitution intended to confer far reaching powers on the Oireachtas to inquire and make findings of fact or express opinions as to the personal culpability of individual citizens for serious wrongdoing, it would have also done so in an explicit manner.
In the circumstances of this case, we are only concerned with an inquiry which may make findings of personal culpability impugning the good name of an individual citizen. I do not see any reason why the Oireachtas cannot conduct inquiries of the nature which they have, for practical purposes, traditionally done, including inquiries into matters concerning the competency and efficiency in departmental or public administration as well as such matters as those concerning the proper or effective implementation of policy and to make findings accordingly. Also, in the case of a particular office holder, such as the chief executive of a semi-state body, who is by virtue of his appointment, whether by statute or contract, answerable to the Houses of the Oireachtas, different considerations arise and I do not consider that the order proposed to be made by this court affects such a situation.
Furthermore, as Hardiman J. illustrates in his judgment in considering the New Zealand experience, it is possible for a parliamentary committee to conduct an in-depth investigation of a large police operation and make extensive findings and recommendations of great public and legislative import without the necessity of making findings of personal culpability of individual police officers.

Justice Hardiman's opinion seems to be animated largely by the secondary or collateral consequences of any findings made by the parliamentary committee. He repeatedly cites the inquiry by the US House Un-American Activities Committee in this regard. His chief concern seems to be that even though the committee's conclusions are "legally sterile" - in the sense that they carry no legal consequences in terms of punishment - they nevertheless have the potential to destroy individuals' lives. In other words, the findings are expressively overdetermined and different audiences might impose collateral sanctions upon those held to be "guilty." Surely, this risk exists even in the case of judicial findings of guilt? While a convict's judicially imposed punishment might terminate upon the expiry of the sentence, is it not the case that the convict bears the stigma of conviction and collateral consequences for the remainder of his life? I am not persuaded that Justice Hardiman's argument does the job. In any case, this does not rule out an inqury if it makes no "findings" about culpability? Deposing individuals in public serves an informational purpose and could educate parliament about responses to the financial crisis. Surely that is permissble and very necessary for the conduct of the legislative function? After all good public policy and a sound system of financial regulation can only be formulated upon the basis of evidence?

Some extracts from Hardiman J.'s opinion:
(on the phrase "findings of fact") I have no doubt that the phrase, according to its ordinary and natural meaning, describes a rigorous analytical process leading to factual conclusions, conducted by a body uniquely equipped or authorised to do so. It is the diametric opposite, in my view, of the sort of opinion expressed about a work of art or music: matters of taste and artistic impression are known to vary from person to person and not to be susceptible of rigorous, objectively justifiable, demonstration. When it is recalled that the hypothetical finding of fact in this case might involve a finding as serious as "unlawful killing", made by a parliamentary sub-committee acting under the authority of both Houses, I believe that it is quite fanciful to consider that a reasonable man or woman in the street would not regard a report so phrased as a solemn finding of demonstrated wrongdoing. If, in relation to one of the applicants, it was found as a fact by this parliamentary group that he or she had unlawfully killed the deceased man, I do not believe that the alleged technical status of such finding as being (contrary to its obvious and natural meaning) merely an opinion would at all avail him or her in the eyes of the ordinary reasonable member of the community. 

Is this just a quibble as Justice Hardiman suggests? Surely there is a difference between a "finding" in such a context and a conviction for unlawful killing?

Justice Hardiman goes on to rule:
It is not disputed by the garda applicants that the findings of the sub-committee, no matter how adverse, could not bind another tribunal or in themselves impose civil or criminal legal liability. But in light of the grave consequences which I am satisfied a finding of responsibility in any degree for Mr. Carthy's death would carry, I believe that the proposed inquiry can fairly be described as an adjudicatory one.
To be brought by compulsory process before a committee claiming those powers and to be on risk of that parliamentary committee making a "finding of fact" that a particular person shot the deceased man and that such shooting was an unlawful killing, in my view, can only be regarded as a form of accountability.
The salient lesson from the Houses Un-American Activities Committee cases is that a person can be ruined simply by exposure and condemnation as much as by conviction. This, indeed, according to the minority in  Barenblatt v. Unites States  (1958) 360 U.S. 109 was the principal purpose and effect of the committee's activities. It is important, I believe, to realise that a body making findings of fact and authoritative pronouncements, but without the power to make actual orders or impose penalties, has its being and its effects wholly in the sphere of public opinion and private reputation. Black J.'s dissenting judgment contains a detailed prospectus of how a pronouncement that is "legally sterile" can destroy the life of a citizen. And yet, Black J. lamented, "The court still sits". The same point has been recently made by the distinguished scholar Ronald Dworkin (Dworkin: New York Review of Books 28th February, 2002). Looking back at these events from a safe distance, but also seeking to find some lessons for the post-September 11th world, Dworkin reflected that after the Second World War the United States had created "… A red scare that destroyed the lives of many of its citizens because their political opinions were unpopular. Much of this was unconstitutional but the Supreme Court tolerated almost all of it. We are ashamed now of what we did then: we count the court's past tolerance of … McCarthyism as amongst the worst stains on its record".
Justice Hardiman also left open the possibility that parliament could pass a law allowing it to conduct an inquiry:
It was said many times on behalf of the respondents that, even if the applicants were correct in law in saying that there was no inherent power to hold this inquiry, their proceedings were nonetheless in some sense futile because that position could be rectified by the passing of "a two section Act". I wish emphatically to express my agreement with the judgment of Geoghegan J. in this regard. That point is quite irrelevant to the case made on behalf of the gardaí which must necessarily be based on the state of the law as it now is. If the court were to be influenced by the possibility of future legislation it would, ironically, be trespassing into the legislative area by assuming that the Oireachtas would legislate in some particular fashion. A statutorily conferred power to hold an inquiry such as that proposed might raise quite different issues to those raised by the claimed inherent power: it is quite impossible to anticipate what issues might arise under legislation which does not exist, and it is improper to attempt to do so.
This is already a post that has gone on for too long. I'll save comments on Justice Geoghegan's judgment for another occasion.

In conclusion, I think an inquiry by the Oireachtas would be sub-optimal. An independent commission of inquiry would be a superior alternative.