Oireachtas Joint Committee on the Constitution – Review of the
Parliamentary Power of Inquiry under Article 15 of the Constitution
Submission of the Law Society of Ireland
1. General Introduction
The Law Society of Ireland welcomes the opportunity to make a submission to
the Joint Oireachtas Committee on the Constitution in the context of a review
of the parliamentary power of inquiry under Article 15 of the Constitution.
Article 15 of the Constitution is sparse in detail in relation to the legislative arm
of government. However, any implicit powers in Article 15 or otherwise
which the Oireachtas possesses - such as a limited power to hold
parliamentary inquiries - have been informed by the judicial arm of
government and set out in case law . Such a limited power to hold an inquiry
must be informed by and subject to other Articles of the Constitution.
Well known to members of the Oireachtas Joint Committee is the doctrine of
the separation of powers – the division of the functions of government among
the three great institutions of state – the legislative, executive and judicial.
None of the three branches of government are absolutely separate from one
another but the doctrine, in general, ensures inter alia that the Oireachtas
legislates and the judiciary adjudicates.
In the general constitutional scheme, the question arises whether it would be
in the interests of responsible government for Article 15 to be amended to
empower the Oireachtas to adopt an adjudicatory function (in addition to its
legislative role) over and above that already granted to the Oireachtas under
the Constitution for example, impeachment for misbehaviour of the
President of Ireland (Article 12.10), removal from office of a judge for stated
misbehaviour or incapacity (Article 35.4.1) or removal of the Comptroller and
Auditor General for stated misbehaviour or incapacity (Article 33.5.1).
Members of the Committee will be aware that Oireachtas authority to conduct
investigations is not explicitly recognised in the Constitution but a limited
power to conduct an inquiry has been held by the courts to be auxiliary to the
legislative function. See Goodman International v. Hamilton (No 1) [1992] 2 IR
542 and Maguire v. Ardagh [2002 1 IR 385.
It is submitted that if amendments were made to Article 15 strengthening the
inquiry functions of the Oireachtas, judicial review challenges may be
inevitable given the significance of fundamental rights guaranteed by the
Constitution and rights expressed in international covenants on human rights
2. Tests for Parliamentary Inquiries
In the sphere of constitutional law, tests have emerged which have received
significant recognition in the context of the nature and scope of parliamentary
inquiries.
One such test is known as the ‘Kilbourn Test’ where the US Supreme Court in
Kilbourn v. Thompson, 103 US 168 (1881) considered the nature of the
inherent power of Congress to hold inquiries. The Supreme Court of the United
States in Kilbourn established several limits to the scope of Congressional
investigations, set out as follows:
 Inquiries must not ‘invade areas constitutionally reserved to the courts
or the executive’.
 Inquiries must deal ‘with subjects on which Congress (Parliament) could
validly legislate’;
 The resolution authorising the investigation must specify ‘ a
congressional (parliamentary) interest in legislating on that subject’;
 In general, the ‘private affairs of individuals’ are not valid subjects for
inquiry.
Frequently persons refer to examples of investigations conducted by the
Houses of Congress of the United States as constituting a model form of
inquiry. The US Constitution does not explicitly empower Congress to carry out
such investigations. The US Supreme Court held in McGrain v Daugherty, 273
US 136 (1927) that the investigatory power of the US Congress was ‘an
essential and appropriate auxiliary to the legislative function’ thus making it
implicit in the grant of legislative powers to Congress under the Constitution of
the United States.
Views have been expressed that the Congressional inquiries in the United
States have achieved a benefit to society and have also been greatly abused.
So, as a feature of a democracy, in relation to a parliamentary inquiry, a
delicate balance must be struck, particularly in the context of the doctrine of
separation of powers and the fundamental rights of citizens.
3. Difficulty in Framing any Amendment
It would be difficult to frame any amendment to Article 15 granting greater
powers of inquiry to Houses of the Oireachtas as it would not be intended to
deprive those appearing before such an inquiry of their legal rights. This issue
arose in a case decided by the US Supreme Court in Watkins v. United States
354 US 178 (1957) referred to in Maguire v Ardagh cited above.
In Watkins, the US Supreme Court held that it cannot simply be assumed that
every congressional investigation is justified by a public need that overbalances
any private rights affected. To do so would be to abdicate the responsibility
placed by the Constitution upon the judiciary to ensure that Congress does not
unjustifiably encroach upon an individual’s right of privacy or abridge his
liberty of speech, press, religion or assembly. There are direct parallels in the
Irish Constitution.
The difficulty of drafting an amendment strengthening the powers of inquiry of
the Oireachtas is reflected in another dictum in Watkins where the US
Supreme Court held, inter alia, that while every reasonable indulgence of
legality must be accorded to the actions of a coordinate branch of government,
such as the Congress, such deference cannot yield to an unnecessary and
unreasonable dissipation of precious constitutional freedoms.
The Oireachtas would have to bear in mind the imperative expressed in Article
40.3.2 of the Constitution of Ireland which is worthy of quotation here:
‘The State shall, in particular, by its laws protect as best it may from
unjust attack and, in the case of injustice done, vindicate the life, person,
good name and property rights of every citizen.’
The vindication of the ‘good name and property rights’ of the citizen are
particularly relevant in the context of any inquiry under Article 15 or any
possible amendment.
4. Criticisms of Parliamentary Inquiries
Several criticisms have been made in various literature concerning
parliamentary inquiries. These criticisms may be summarised here:
 Investigations become too broad in scope;
 Too much publicity
disproportionate;
attaches to inquiries
which may
be
 Political considerations appear to influence lines of inquiry as
parliamentarians participating in an inquiry are selected from those who
support the administration in power and those who oppose it.
5. Conclusion
A serious erosion of the doctrine of separation of powers may be an inevitable
consequence if the existing powers of the Oireachtas to hold inquiries
pursuant to Article 15 of the Constitution are ‘strengthened’ by way of an
amendment.
For the reasons set out above, the Law Society considers that it would not be
in the public interest to extend the existing powers of the Oireachtas by an
amendment to Article 15 of the Constitution of Ireland.
16th December, 2010