Much of the comment on the High Court ruling in the Oireachtas subcommittee inquiry has focused on the supposed fact that, if the High Court ruling is upheld in the Supreme Court, there will have to be a constitutional amendment. But this assumption rather misunderstands the 95-page judgment.
The central point of the judgment was certainly that the Oireachtas had no power to set up inquiries which are likely to lead to findings of fact or expressions of opinion adverse to the good name of non-members of the Oireachtas. This result depended on two lines of reasoning.
First, on a very literal reading, it was held that the Committees of the Houses of the Oireachtas Act 1997 did not bestow a wide power of this type. Secondly, neither was there any such inherent power of this kind in the Constitution.
But the important point is that the High Court seems to have left open the possibility that, even without a constitutional ammendment, the Oireachtas might, by passing a wider and more carefully drawn law, give itself the necessary investigating power which it had apparently failed to do in the 1997 Act.
But any constitutional amendment would be for the future. Indeed, given the perceived unpopularity of politicians with the public and the popularity of judges, it seems likely that this would be the very distant future.
Turning to Friday's judgment and the chances of a successful appeal, while there were a number of procedural points on which the committee's action was found to be flawed, the central feature of the case was that a future inquiry, involving the conduct of an individual, would be beyond the powers of a committee.
The vital point is that the Houses of the Oireachtas have two functions. The first is that they are the law-making body. In addition to this, the Government is responsible to the Dβil, as the Constitution says in Article 28: the government shall be responsible to Dβil ╔ireann to exercise this power effectively. The Dβil requires information, which it obtains in various ways, including: Dβil questions, statements by ministers, and debates.
It bears noting that none of these is expressly mentioned either in the Constitution or in legislation. One wonders, therefore, why it was necessary to find express mention of the power to hold an inquiry.
It is also vital to appreciate that the garda∅ are State servants, funded out of monies under the control of the Dβil and providing a central governmental function, for which the Minister for Justice is - on policy matters anyway - answerable to the Dβil.
One could perhaps understand the ruling if it were to the effect that the Oireachtas could not investigate private businesses or individuals, such as the banks and their customers' payment of DIRT. But the garda∅ are plainly on the public side of any public/private division.
If this decision is allowed to stand, it might mean that the Comptroller and Auditor-General, whose area of competence is the same as that of the Dβil Public Accounts Committee, could not investigate the payment to garda∅ who took their salary while falsely claiming to have flu (thus committing the offence of obtaining money by false pretences); or the extravagant expenditure on tyres for Garda vehicles.
There seems to be good reason why the Supreme Court might depart from the narrow reading given by the High Court to the 1997 Act, which after a gestation period of 10 years in the Oireachtas, was plainly intended to give ample powers of investigation to Oireachtas committees.
Other wider consequences are likely to follow if the decision is upheld.
The need for more full judicial inquiries, under the tribunals of inquiry legislation, will not only remove judges from their main duties in the higher courts, but will also drag them further into areas of political controversy which might have been left to the Oireachtas.
Long term, such reliance undermines democracy. The citizenry, instead of trusting their representatives, think that they have to rely on the judges.