The battlelines are drawn; the question now is whether a compromise can be struck between An Garda Síochána and the Public Accounts Committee or if it will again be left to the courts to delineate the boundaries of parliamentary power.
Fundamental principles are in play. The committee is looking into serious matters of public interest – the widespread cancellation of fixed-penalty notices by gardaí – and argues it has the legitimacy and methods to do so fairly and responsibly. Against that, Garda Commissioner Martin Callinan is concerned the politicians are straying into dangerous territory by proposing to hear allegations of serious criminality by gardaí in a setting where speakers enjoy the freedom – parliamentary privilege – to say what they want about named individuals who have no right of reply.
Even within the PAC, there are differing opinions on this. Is the committee, whose function is to scrutinise how public money is spent, overstepping its remit, or does the loss of income to the State that would result from decisions to erase penalty points justify its involvement?
Limelight opportunism
Behind a fair amount of the criticism of the PAC is the sense some of its members are enjoying all of this a little bit too much; that their investigative zeal has as much to do with politicians' keen eye for the limelight as any higher ambitions. One of the PAC's members, Independent TD Shane Ross, has said it will put up "a pretty robust defence" if the commissioner goes to the Four Courts to block the hearing of whistleblower evidence. It will need to, if the judges' previous decisions in this area are anything to go by.
In the case of Maguire v Ardagh (the so-called Abbeylara judgment) in 2002, the Supreme Court, by a five-two majority, held there were significant limitations on the power of Oireachtas committees to hold investigations. It found the Oireachtas could not exercise a "quasi-judicial" function by making findings of fact adverse to the good name of any citizen not a member of the House. The Fine Gael-Labour coalition tried to work its way around the barriers set down in the Abbeylara judgment in a referendum in 2011, but the proposal to give committees more investigative power was rejected.
If Callinan takes legal action, it’s a reasonable bet he’ll argue the committee is going beyond its jurisdiction. He could also argue that the whistleblowers’ evidence would potentially breach the Data Protection Act, or that the inquiry would undermine the principle of the separation of powers.
"I think the Garda Commissioner would be pushing an open door if he went to court," says barrister Ronan Lupton. "In my opinion, the commissioner could go to court and say, 'I want to restrain the PAC inquiring into activities in An Garda Síochána simply because I believe it would interfere with the safe and proper administration of justice.'"
Lupton points to two key Latin maxims: Nemo iudex in causa sua (No one is a judge in his own cause) and Audi alteram partem (Let both sides be heard), adding: "If they breach either or both of those principles, you could be looking at judicial review proceedings."
Labour Senator Ivana Bacik says the commissioner raised "genuine issues of concern" but argues the committee may still find a "middle ground" on which it can hear the whistleblowers' evidence. One suggestion is it hear the testimony in private – an idea that appeared to be gaining ground over the weekend. This would offer some protection to people whose names may be mentioned and help put to rest the suspicion that members see the inquiry as a stage for self-promotion. "That might well be a prudent consideration for the committee at this point," Bacik says.