Tribunals and The Erosion of The Right To Privacy
Paul Gallagher SC
In this paper I propose to consider the right of privacy in the context of a particular type of Tribunal, namely a Tribunal of Inquiry governed by the Tribunals of Inquiry (Evidence) Act 1921 as amended. The 1921 Act was expressed to be "an Act to make provision with respect to the taking of evidence before and the procedure and powers of certain Tribunals of Inquiry". The 1921 Act did not provide for the establishment of a Tribunal of Inquiry but rather governed its procedures and determined its powers. The establishment of a Tribunal of Inquiry, as the Supreme Court pointed out in HAUGHEY & ORS. -V- MR. JUSTICE MORIARTY & ORS. ("Haughey No. 2") is made pursuant to the inherent jurisdiction of the Houses of the Oireachtas to resolve that it is expedient that a Tribunal be established to enquire into what they consider to be urgent matters of public importance.
A Tribunal so set up has very significant inquisitorial powers that were described by Lord Justice Salmon in the Report of the Royal Commission of Tribunals of Inquiry 1966 in the United Kingdom ("the Salmon Report") in the following terms. (This description was quoted with approval by the Supreme Court in the HAUGHEY NO. 2):
"The exceptional inquisitorial powers conferred upon a Tribunal of Inquiry under the Act of 1921 necessarily exposed the ordinary citizen to the risk of having aspects of his private life uncovered which would otherwise remain private, and to the risk of baseless allegations made against him. This may cause distress and injury to reputation. For these reasons, we are strongly of the opinion that the inquisitorial machinery set up under the Act of 1921 should never be used for matters of local or minor public importance, but always be confined to matters of vital public importance concerning which there is something in the nature of a nation-wide crisis of confidence. In such cases we consider that no other method of investigation would be adequate."
In any consideration of the effect of Tribunal of Inquiry on the right to privacy, it is well to bear in mind this judicial recognition of the exceptional inquisitorial powers which a Tribunal has and the inevitable exposure of the ordinary citizen to the risk of having aspects of his private life uncovered and to having baseless allegations made against him which might injure his reputation.
The Supreme Court in HAUGHEY NO. 2 also accepted the Salmon Report's recognition of the important role of Tribunals of Inquiry in restoring public confidence. The Salmon Report emphasised the importance of this role in the following terms:
"The inquisitorial procedure is alien to the concept of justice generally accepted in the United Kingdom. There are, however, exceptional cases in which such procedures must be used to preserve the purity and integrity of our public life without which a successful democracy is impossible. It is essential that on the very rare occasions when crisises of public confidence occur, the evil, if it exists, shall be exposed so that it may be rooted out; or if it does not exist, the public shall be satisfied that in reality there is no substance in the prevalent rumours and suspicions by which they have been disturbed. We are satisfied that this would be difficult if not impossible without public investigation by an inquisitorial tribunal possessing the powers conferred by the Act of 1921."
The Supreme Court's acceptance that the considerations identified above are also applicable in this jurisdiction and its recognition of the exceptional inquisitorial powers enjoyed by Tribunals of Inquiry are particularly relevant to the privacy issues discussed in this paper.
The title of the topic which I have been asked to address assumes a right to privacy and raises only the issue of the extent of the encroachment on that right by Tribunals of Inquiry. However, any analysis of the extent of that encroachment necessarily involves an examination of the extent of the right to privacy under our system of law or at least under our system of constitutional law.
The notion of a right to privacy is potentially a broad one into which different senses of privacy are conflated. Sometimes privacy is territorial: people have a right to privacy in the territorial sense when they are entitled to do as they wish in a certain specified space - inside their home for example. Sometimes privacy is a matter of confidentiality: we say that people may keep their political convictions private, meaning that they need not disclose how they have voted. Sometimes, however, privacy means something different from either of these senses: it means sovereignty over personal decisions. The issues raised in MCGEE -V- ATTORNEY GENERAL , relating to the use of contraception within marriage and NORRIS -V- ATTORNEY GENERAL relating to the legality of homosexual acts are aspects of the latter type of privacy. Privacy can also relate to the protection of one's reputation. It is really privacy in the sense of confidentiality and reputation that is of concern to us in the present context. Though a right to privacy need not necessarily derive from the Constitution, it seems appropriate to consider in the main the constitutional aspects of that right. If the relevant rights of privacy have a constitutional basis and are subject to erosion, then that erosion is not mitigated by identifying other non-constitutional sources of those rights.
Unlike some constitutions, the Irish Constitution does not explicitly recognise any right to privacy. It could be said that the notion of a constitutional right to privacy derives from the Supreme Court decision in IN RE HAUGHEY ("HAUGHEY NO. 1"). In that case the Supreme Court recognised the constitutional right to protect one's good name and the concomitant right to ensure that investigation procedures protected that right.
The concept of a right to privacy is explicitly recognised in the decision of the Supreme Court in MCGEE -V- ATTORNEY GENERAL. Budd J. described the right in the following expansive terms:
"Whilst the "personal rights" are not described specifically, it is scarcely to be doubted in our society that the right to privacy is universally recognised and accepted with possibly the rarest of exceptions, and that the matter of marital relationships must rank as one of the most important of matters in the realm of privacy.."
The concept of a right of privacy was developed in subsequent cases. In MURPHY -V- PMPA INSURANCE COMPANY LIMITED , Doyle J. recognised an unspecified natural right, akin to a right of privacy, in relation to the obligation of insurers to preserve the confidentiality of information furnished to them by the insured.
In NORRIS -V- ATTORNEY GENERAL the majority of the Supreme Court held that the State's interest in the general moral well-being of the community enabled it to regulate the field of private morality and held that any right to privacy or a right "to be let alone" can never be absolute. They accordingly rejected the contention that laws penalising homosexual acts infringed any right to privacy. However, Henchy J. in a dissenting judgment reaffirmed the extent and importance of a right to privacy in the following terms:
"A right of privacy inheres in each citizen by virtue of his human personality, and that such right is constitutionally guaranteed as one of the unspecified personal rights comprehended by Article 40.3."
He went on to say that a right of privacy is:
"A complex of rights, varying in nature, purpose and range, each necessarily a facet of the citizen's core of individuality within the constitutional order. ……… There are many other aspects of the right of privacy, some yet to be given judicial recognition. It is unnecessary for the purpose of this case to explore them. It is sufficient to say that they would all appear to fall within a secluded area of activity or non-activity which may be claimed as necessary for the expression of an individual personality, for purposes not always necessarily moral or commendable, but meriting recognition in circumstances which do not endanger consideration such as state security, public order or morality, or other essential components of the common good."
The concept of a constitutional right to privacy was developed further in KENNEDY -V- IRELAND in which the plaintiffs complained of unjustifiable tapping of their telephones by the State and sought damages for this breach of the right to privacy. The plaintiffs succeeded and Hamilton P. (as he then was) held:
"The right to privacy is not an issue, the issue is the extent of that right or the extent of the right "to be let alone". Though not specifically guaranteed by the Constitution, the right of privacy is one of the fundamental personal rights of the citizen which flow from the Christian and democratic nature of the State. It is not an unqualified right. Its exercise may be restricted by the constitutional rights of others, or by the requirements of the common good, and it is subject to the requirements of public order and morality. ……… The nature of the right of privacy must be such as to ensure the dignity and freedom of an individual in the type of society envisaged by the Constitution, namely a sovereign, independent and democratic society. The dignity and freedom of an individual in a democratic society cannot be ensured if his communications of a private nature, be they written or telephonic, are deliberately, consciously and unjustifiably intruded upon and interfered with. I emphasise the words "deliberately, consciously and unjustifiably", because an individual must accept the risk of accidental interference with his communications and the fact that in certain circumstances the exigencies of the common good may require and justify such intrusion and interference. No such circumstances exist in this case."
In KANE -V- GOVERNOR OF MOUNTJOY PRISON the Supreme Court again accepted the existence of a general constitutional right of privacy while rejecting a claim by the applicant that his constitutional rights had been unlawfully interfered with by police surveillance of his movements. No precise definition was given of the qualifications which circumscribed the right.
The extent of the qualifications to the constitutional right of privacy became more apparent in subsequent cases, many of which dealt with investigations or aspects of the administration of justice. In DESMOND -V- GLACKIN (NO. 2) the Court had to consider an aspect of the Companies Act investigation into the controversial purchase of property by Telecom Eireann in Ballsbridge. One of the issues in that case was the use of information obtained by the Inspector indirectly through the Central Bank. It was alleged that the use of such information breached the duty of confidentiality imposed by the Constitution. O'Hanlon J. felt that in the particular circumstances the protections afforded by the common law and by the Constitution were probably coextensive. He said what had occurred there was the disclosure of such information by the Minister for Finance to another Minister of Government and the further disclosure of the information by him to an inspector appointed by him for the purpose of carrying out statutory functions under the Act of 1990 - the investigation of the affairs of two named companies as a matter of public interest. The information was given in the belief that it had a material bearing on the matters which were the subject of the inspector's investigation, and was actually sought by the inspector before the necessary steps were taken to make it available to him. O'Hanlon J. concluded in terms that were to find an echo in more recent cases as follows:
"There appears to me to be clear public interest in having all the information needed by the Inspector for the purposes of his investigation made available. I do not detect the existence of any significant public interest of equal or near-equal weight in denying access by the inspector to this source of information. The knowledge on the part of persons involved in transactions requiring them to make disclosure to the Central Bank under the Exchange Control Acts 1954 - 1962, that particulars of such transactions may, in unusual and exceptional circumstances be made available to an inspector appointed under the Act of 1990 and may - if he finds the information relevant to the subject-matter of his investigation - be made public at some stage, may be upsetting for the persons concerned but it cannot (without illegality) diminish in any way the free flow of information to the Central Bank under the Exchange Control Acts."
O'Hanlon J. also held that the making available of such information did not breach any duty of confidentiality arising under the provision of the Central Bank Acts 1942-1989 or the Official Secrets Act 1963.
In M -V- DRURY the plaintiff sought to restrain the defendant from publishing or communicating to any person any matter or fact pertaining to her family life. The second, fourth and sixth defendants had published articles which purported to express the eleventh defendant's (the plaintiff's husband) opinion that his marriage had broken down by reason of an alleged adulterous relationship between his wife, the plaintiff, and a Roman Catholic priest, and his intention to bring proceedings against the Roman Catholic Church seeking compensation for the breakdown of the marriage. Restraint was sought on the basis that what was involved was a proposed disclosure of matters relating to the intimate family relationship of husband and wife and that such disclosure should not be permitted having regard to the judgment in MCGEE -V- ATTORNEY GENERAL. O'Hanlon J. refused to restrain the publication and rejected such claim in the following terms:
"There are extreme cases where the right to privacy (which is recognised as one of the personal rights, though unspecified, guaranteed protection by the Constitution ………. ) may demand the intervention of the Courts. An example might be the circumstances illustrated in Argyle -v- Argyle [1967] Ch. 302 where confidential communications between husband and wife during their married life together were protected against disclosure. Generally speaking, however, it seems desirable that it should be left to the legislature, and not to the Courts to "stake out exceptions to freedom of speech" (in the words of Lord Denning)
In the present case the Court is asked to intervene to restrain the publication of material, the truth of which has not as yet been disputed, in order to save from the distress that such publication is sure to cause, the children of the marriage who are all minors. This would represent a new departure in our law, for which, in my opinion, no precedent has been shown, and for which I can find no basis in the Irish Constitution, having regard in particular to the strongly expressed guarantees in favour of freedom of expression in that document."
The issue of privacy arose again in ROE -V- BLOOD TRANSFUSION SERVICE BOARD this time in the context of the administration of justice. Article 34(1) of the Constitution provides that justice shall be administered in Courts established by law and that it shall be administered in public. The Plaintiff had contracted the Hepatitis C virus as a result of being treated with infected blood products and claimed damaged for personal injuries. She wished to sue in an assumed name. Laffoy J., following the earlier decision of Mr. Justice Hamilton in THE CLAIMANT -V- THE BOARD OF ST. JAMES' HOSPITAL (which dealt with a similar application by a number of haemophiliacs who alleged that they had been affected by the HIV virus as a result of infected blood products) refused the application. She said that where the true identity of a plaintiff in a civil action was known to the parties to the action and to the Court but was concealed from the public, members of the general public could not see for themselves that justice was being done. As a result the Court had no jurisdiction to allow the plaintiff to prosecute the proceedings under an assumed name as this would be in contravention of Article 34, Section 1. Laffoy J. also had regard, in arriving at that conclusion, to the decision of the Supreme Court in RE R LIMITED which dealt with the entitlement to hold proceedings brought under Section 205 of the Companies Act 1963 in camera. In that case Walsh J. had said:
"The issue before this Court touches a fundamental principle of the administration of justice in a democratic state, namely the administration of justice in public. Article 34 of the Constitution provides that justice shall be administered in Courts established by law and shall be administered in public save in such special and limited cases as may be prescribed by law, the actual presence of the public is never necessary but the administration of justice in public does require that the doors of the Courts must be open so that members of the general public may come and see for themselves that justice is done. It is in no way necessary that the members of the public to whom the Courts are open should themselves have any particular interest in the cases or that they should have had any business in the Court. Justice is administered in public on behalf of all of the inhabitants of the State."
The decision in RE: R LIMITED and the later decision in IRISH PRESS PLC -V- INGERSOLL IRISH PUBLICATIONS LIMITED are of a special significance in emphasising the limitations on the right to privacy in the context of the administration of justice, even where the Court is given a discretion to hear proceedings in private. Section 205(7) of the Companies Act 1963 grants such a discretion to the Court in the following terms:
"If, in the opinion of the Court, the hearing of proceedings under this section would involve the disclosure of information the publication of which would be seriously prejudicial to the legitimate interests of the company, the Court may order that the hearing of the proceedings or any part thereof shall be in camera.."
In IN RE: R LIMITED Mr. Justice Walsh held that the section could not be invoked
"simply to conceal from the public evidence of wrongful activities on the part of the company, or any member of the company, or employees of the company, or anybody dealing with the company or the good name of any such persons or anybody else. …….. In seeking to avail of the protection apparently afforded by the subsection, the parties seeking it must be able to satisfy the Court that not only would the disclosure of information be seriously prejudicial to the legitimate interests of the company but it must also be shown that a public hearing of the whole or of the part of the proceedings which it has sought to have heard other than in a public court, would fall short of the doing of justice."
More recently the Supreme Court considered the right to privacy in HAUGHEY NO. 2. The Supreme Court recognised the potential which a Tribunal of Inquiry had for intrusion into the citizen's private life and also recognised the constitutional right to privacy. The Court said:
"There is no doubt but the terms of reference of the Tribunal of Inquiry and the exceptional inquisitorial powers conferred upon such a Tribunal under the 1921 Act (as amended) necessarily exposed the plaintiffs/appellants and other citizens to the risk of having aspects of their private life uncovered which would otherwise remain private, and the risk of having baseless allegations made against them. This may cause distress and injury to their reputations.
There is no doubt but that the plaintiffs/appellants enjoy a constitutional right to privacy. What is in dispute in this case is the extent of such right to privacy and in particular whether it extends to the right to confidentiality in respect of banking transactions and whether the exigencies of the common good outweigh in the circumstances of this case, such a right to privacy. ……...
The right to privacy is not in issue: the issue is the extent of that right and whether that right extends to the confidentiality of a person's banking transactions.
For the purposes of this case, and not so holding, the Court is prepared to accept that the constitutional right to privacy extends to the privacy and confidentiality of a citizen's banking records and transactions. This is a right which is recognised at common law."
The doubt as to the extent of the constitutional right to privacy is not surprising insofar as that right is one of the unspecified rights in the Constitution and therefore the Constitution does not explicitly define its extent. What is perhaps of more concern is the implicit doubt expressed by the Supreme Court as to whether the right extended to the privacy and confidentiality of a citizen's banking records and transactions. If the constitutional right to privacy does not extend to those documents and transactions, that means that the constitutional right to privacy, outside perhaps the area of personal morality, is significantly restricted. It also means that the protection of that right in the context of Tribunals or other legislative interventions is very seriously weakened.
It had of course already been held by the Supreme Court earlier in 1998 in NATIONAL IRISH BANK LIMITED & ANOR. -V- RADIO TELEFIS EIREANN that there existed at common law a duty and right of confidentiality between banker and customer and that there was a public interest in the maintenance of such confidentiality for the benefit of society at large. The Supreme Court also went on to hold that there was a public interest in defeating wrongdoing and where the publication of confidential information might be of assistance in defeating wrongdoing, the public interest in such publication might outweigh the public interest in the maintenance of confidentiality. Obviously, however, the extent of the protection which the right enjoys could be very significantly affected by whether it is a constitutional or just a common law right.
It is clear from the above decisions that the extent of the constitutional right to privacy is uncertain. If it does not self-evidently extend to the privacy and confidentiality of a citizen's banking records and transactions, there must be serious concern as to the extent of the constitutional protection actually enjoyed. The nature and substance of the right to privacy is fundamentally dependent on its extent. There is no right to privacy independent of its components. If the constitutional right to privacy is uncertain, the potential for intrusion on that right by the legislature and by Tribunals of Inquiry is very much greater. Uncertainty as to the nature of the right means that if the right is to be vindicated, it is much more likely that it will be necessary to have recourse to the Courts to do so. The lack of a clear definition of the right to privacy militates against its vindication in a non-Court context because the very lack of clarity allows scope for dispute as to its nature and extent. This is quite apart from any issue as to whether such a right must be qualified in a particular case by other exigencies such as those of the common good.
This lack of definition of the right of privacy is all the more serious in the context of Tribunals of Inquiry. This is so for two reasons. These Tribunals by virtue of the nature of the subject matter into which they are enquiring will almost certainly have the potential, as was recognised by the Supreme Court in HAUGHEY NO. 2 to expose citizens to the risk of having aspects of their private life uncovered which would otherwise remain private and to the risk of having baseless allegations made against them. Secondly, the body charged with carrying out a successful investigation is the same body which decides in the first instance whether or not particular information should be exposed to public scrutiny and whether or not allegations (which might ultimately be baseless) should be made public.
The concern in the latter regard is heightened by the Supreme Court decision in REDMOND -V- FLOOD in which the Supreme Court made it clear that a Tribunal can proceed to a public inquiry even where there is not a prima facie or strong case against a particular citizen. The Court held :
"An inquiry under the Tribunals of Inquiry (Evidence) Act 1921 is a public inquiry. The Court in the passage quoted accepted that it is proper for a Tribunal to hold preliminary investigations in private. This would enable the Tribunal, inter alia, to check on the substance of the allegations and in this way would protect the citizens against having groundless allegations made against them in public. But the Court was not suggesting that the Tribunal should proceed to a public inquiry only if there was a prima facie case or a strong case against a particular citizen. It was suggesting that the allegation should be substantial in the sense that it warranted a public inquiry. The Tribunal is not obliged to hold a private inquiry before proceeding with its public inquiry. The allegations made against the applicant in this case could be false. At this stage we simply do not know. But they are grounded on a sworn affidavit. In these circumstances it appears to this Court that the Tribunal was entitled to decide that they were of sufficient substance to warrant investigation at a public inquiry. Indeed it would have been surprising if the Tribunal had decided otherwise."
The fact is that most of the Tribunals do hold a private inquiry before proceeding with the public inquiry. The statement that they are not obliged to do so and that the Tribunal is not required to be satisfied that there is a prima facie case before an allegation is made public means that in reality there is no legal protection (other than the good judgment of the Tribunal) against the risk of having baseless allegations made against the citizen with the resultant distress and injury to reputations.
The potential for injury to reputations by the making of baseless allegations was also recognised by the Supreme Court in the context of a different type of tribunal, in BARRY -V- MEDICAL COUNCIL . There the Supreme Court had to consider disciplinary enquiries by the Medical Council against a doctor. The statutory scheme under which these enquiries were carried out was of course quite different from the statutory scheme for a Tribunal of Inquiry and the Court held that the scheme gave to the Fitness to Practice Committee a discretion as to whether or not its hearing should be in private. The Court also referred to the statutory provision which provided that the findings of the Fitness to Practice Committee and the decision of the Medical Council in any report made to it by the Committee should not be made public without the consent of the doctor who had been the subject of the inquiry unless such doctor had been found guilty of professional misconduct or unfit to engage in the practice of medicine. Mr. Justice Barrington said:
"Clearly the purpose of this provision is to protect the reputation of practitioners who have not been found guilty of professional misconduct or unfit to engage in the practice of medicine."
I believe that this recognition of the serious danger which can be done to one's reputation as a result of the making of baseless allegations is not reflected in the protection accorded by the Courts to people who are either the subject matter of Tribunals of Inquiry or who are witnesses at such Tribunals. The rights of cross-examination and other procedural rights recognised in HAUGHEY NO. 1 do not adequately protect one's reputation against the making of such baseless allegations. They are of course important protections in the ultimate vindication of one's good name. If however, as has been recognised, the making of baseless allegations can cause distress and injury to reputations (irrespective of whether those allegations are ultimately upheld), it follows that those procedural rights will not redress the injury suffered by the citizen in such circumstances. As a matter of common sense and practice we are all aware that by the time one's good name is vindicated in the ultimate report of the Tribunal, very significant damage may already have been done to that good name by reason of the lapse in time since the making of the allegation. In most cases the lapse in time will be months, and in many cases years. The ultimate report in those circumstances may be ineffective in dislodging people's recollection of the allegations, particularly where the ultimate vindication of the good name is only part of the detail in a lengthy report. Such detail may never be given the publicity which the original allegations were given. In any event if, what is disclosed in public is confidential information, the ultimate report provides no redress for that intrusion into the citizen's right of privacy.
There is another feature of Tribunals which can significantly affect the right to privacy. This is the apparent power of a Tribunal to at least hear hearsay evidence, even if ultimately it might be inappropriate for the Tribunal to base any of its findings thereon. In GOODMAN INTERNATIONAL -V- MR. JUSTICE HAMILTON Hederman J. said:
"The applicants challenge four procedural rulings which have already been made by the Sole Member of the Tribunal, seeking an Order prohibiting the continuance of the Tribunal otherwise than according to the following claimed procedural rulings:
(a) that the only evidence admissible is evidence admissible in a Court of law;
(b) that certain evidence should be heard in private;
(c) that statements of evidence should be prepared and furnished to the interested party;
(d) that the Tribunal having collected the allegations into which it will enquire has made a constitutionally invalid section of the matters into which it will enquire.
With regard to the first there was a fear that there might be an overuse of hearsay evidence. This because, undoubtedly, in the material furnished to the solicitors for the applicants there was included much hearsay, but the Tribunal will doubtless adopt the same approach as the Tribunal of Inquiry into dealings in GREAT SOUTHERN RAILWAYS STOCK (PRL 6792; [1943])…….. While it sifted through rumour and hearsay it relied only on admissible evidence for its findings.
In the course of this inquiry it may be necessary for the Tribunal to relax the rules of evidence in regard to some particular party - including the applicants. It would be very unwise for this Court to attempt to fetter the discretion which the Tribunal undoubtedly possesses to regulate its own procedure. Similarly, in regard to whether any evidence should be taken in private - that would be a matter for the Tribunal to rule on as the occasion requires. …………..".
The acceptance that the Tribunal can rule on its own procedure and can admit hearsay evidence obviously expands very greatly the potential for the making of baseless allegations. Furthermore, because those allegations may be made on a hearsay basis, the ability to challenge them by cross-examination may well be significantly limited.
However, the real undermining of the right to privacy comes, in my view, from the very basis on which Tribunals can be established. As mentioned already, the Supreme Court has held that the Houses of the Oireachtas have an inherent jurisdiction to establish enquiries into matters of urgent public importance. The Supreme Court recognised in HAUGHEY NO. 2 that the powers of both Houses of the Oireachtas in this regard are not absolute. The resolutions of both Houses however enjoy the same presumption or constitutional validity as has been applied by the Court to statutes enacted by the Oireachtas. That fact and the fact that the Courts must recognise the legislature's discretion in identifying what are matters of public importance, means in reality that the possibility of successfully reviewing a resolution of the Houses of the Oireachtas to establish an inquiry are very limited. All the Inquiries established by the Houses of the Oireachtas to date were certainly validly established. It is these validly established Tribunals which have such potential to interfere with rights of privacy.
One is reminded of the Catch-22 phenomenon derived from the famous book of that name by Joseph Heller. Yossairn, the hero of that book, was constantly trying to get excused from flying bombing missions for the US Airforce in Italy during the Second World War. One could be excused from flying such missions if one were mad but if anyone asked to be excused from the bombing missions, there was an irrebuttable presumption that one was not mad because only mad people would want to fly those missions in the first place.
The Catch-22 with Tribunals of Inquiry is that if they can only be set up to enquire into matters of urgent public importance, then by definition the essential purpose of the Tribunal involves the element of public interest in defeating wrongdoing or enquiring into important matters of national or public interest, matters have been held on so many occasions to be sufficient to outweigh the right of privacy and more particularly the right of confidentiality. The Supreme Court in HAUGHEY NO. 2 said :
"The exigencies of the common good require that matters considered by both Houses of the Oireachtas to be of urgent public importance be inquired into, particularly when such inquiries are necessary to preserve the purity and integrity of our public life without which a successful democracy is impossible.
In this case both Houses of the Oireachtas deemed it expedient that a Tribunal of Inquiry be established to enquire into the matters set forth in the resolutions.
The effect of such resolutions is undoubtedly to encroach upon the fundamental rights of the plaintiffs/appellants in the name of the common good.
The encroachments on such rights is justified in this particular case by the exigencies of the common good.
Such encroachment must however be only to the extent necessary for the proper conduct of the inquiry.
Both Houses of the Oireachtas are entitled to assume that the Tribunal will conduct its investigation in accordance with the principles of constitutional justice and fair procedures and will only interfere with the constitutional rights of the appellants when, and only to the extent that, it is necessary for the proper conduct of the inquiry."
With respect however, the conduct of the investigation in accordance with the principles of constitutional justice and fair procedures does not solve the privacy problem identified above. Those procedures may help one to ultimately vindicate one's good name but it does not protect one from the "distress and injury to reputations" caused as a result of the making of baseless allegations. The Supreme Court has already held that a Tribunal is the master of its own procedure and can enquire into allegations even where the prima facie validity of those allegations has not been established. It follows therefore that there is in reality little protection for one's reputation in the face of baseless allegations.
This encroachment is made even more serious by the terms of the 1921 Act itself. Section 2(a) provides:
"A Tribunal to which this Act is so applied as aforesaid -
(a) shall not refuse to allow the public or any portion of the public to be present at any of the proceedings of the Tribunal unless in the opinion of the Tribunal it is in the public interest expedient so to do for reasons connected with the subject matter of the inquiry or the nature of the evidence to be given."
This statutory provision gives to the Tribunal a discretion, which is undoubtedly difficult to judicially review, with regard to hearings in private. Even this discretion is very seriously qualified and the circumstances in which it would be appropriate for the Tribunal (apart from the preliminary private investigation) to hear evidence in private are very limited and the test which an applicant must satisfy before a Tribunal could direct evidence to be heard in private is clearly a very difficult one.
Against this legislative and judicial background, those rights of privacy which in Mr. Justice Henchy's words are inherent in each citizen by virtue of his human personality and which comprise a complex of rights which are a facet of the citizen's core of individuality, are needlessly and unnecessarily threatened.
As mentioned already, the Supreme Court has recognised in HAUGHEY NO. 2 that the encroachment on the constitutional right to privacy must be "only to the extent necessary for the proper conduct of the inquiry". If that is so, there does not appear to be any reason in principle why greater protections (than presently exist) could not be accorded to the right of privacy while yet protecting the fundamental purpose and efficacy of Tribunals of Inquiry.
The Supreme Court has determined in GOODMAN INTERNATIONAL -V- MR. JUSTICE HAMILTON that a Tribunal of Inquiry does not involve the administration of justice. The constitutional requirement therefore to have the proceedings heard in public imposed by Article 34, Section 1, in respect of Court proceedings does not apply. Similarly the constitutional limitations on the right to privacy recognised by the High Court in ROE -V- BLOOD TRANSFUSION SERVICE BOARD and other cases in the context of Court proceedings is not a consideration for Tribunals. Neither is there any overriding reason (in the case of a Tribunal) as there is in the context of a similar discretion in relation to Court proceedings why a statutory discretion or mandate to hear certain aspects of Tribunal evidence in private should be construed in a limited or qualified way. This means there is nothing to prevent the legislature introducing legislation which would specifically entitle Tribunals to hear certain aspects of the evidence in private and which would not impose on those wishing a private hearing such a difficult threshold (as is imposed by Section 21(2) of the 1921 Act). Furthermore, a legislative requirement that the Tribunal be satisfied that there is a prima facie basis for allegations (or at least a serious basis for the allegations) before they are aired in public would be constitutionally permissible and would not materially diminish the effectiveness of Tribunals given their very substantial inquisitorial powers.
There is no reason why these matters could not be explored in a private hearing where there is a reasonable basis for doubting the reliability of the allegations and where the consequences of making them in public would be very serious. We should not allow the wording of Section 2(a) of the 1921 Act to fix in stone the procedures of these Inquiries, particularly where that wording was fashioned in another age when a constitutional right of privacy was unheard of and where there was no mass media capable of instantaneously publicising every allegation and making the subject of the allegation instantly recognisable as a wrongdoer across the nation's televisions. It is also worth remembering that very effective investigations are carried out under the Companies Acts where only the report and not every baseless allegation is published. While I am not advocating that Inquiries be so restricted, it is clearly possible to fashion an effective inquiry while modifying its procedures to provide adequate protection for privacy.
It is equally open to the Courts to review the constitutionality of Section 21(2) of the 1921 Act to see whether the obligation which it imposes on a Tribunal to hear evidence in public does go further than is necessary in the encroachment of the rights to privacy.
One's approach to the desirability of the protection of privacy in these matters should not be coloured by the knowledge that these Tribunals have been effective in unearthing wrongdoing or that many people who claim such privacy rights may themselves have been guilty of wrongdoing. In the history of the State some of the most important constitutional rights have been established and vindicated in cases where the plaintiffs seeking to establish those rights have been wholly unmeritorious. While the rooting out of wrongdoing is undoubtedly an essential part of democracy, it is equally an essential part of that democracy that the fundamental rights of a citizen are protected, notwithstanding public demand for results and a lack of public sympathy for the people invoking those constitutional rights. Fundamental rights are designed, at least in part, to provide protection against the emotions of the majority and against high running feelings of antagonism amongst the public.
While the European Convention on Human Rights is not part of the law of this State, it is now part of the law of the European Union and therefore indirectly forms part of the fundamental rights protection which the citizens of Ireland enjoy in those areas within the competence of the European Union. The right to privacy is recognised by Article 8 of the European Convention which provides:
"(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
In Resolution 428 (1970) of the Consultative (Parliamentary) Assembly of the Council of Europe, which contains the Declaration concerning the Mass Media and Human Rights, this right has been defined as follows:
"The right to privacy consists essentially in the right to live one's own life with a minimum of interference. It concerns private, family and home life, physical and moral integrity, honour and reputation, avoidance of being placed in a false light, non-revelation of irrelevant and embarrassing facts, unauthorised publication of private photographs, protection from disclosure of information given or received by the individual confidentially."
These rights are of course, even under the European Convention, subject to qualifications. In any ordered society rights of privacy must be subject to qualification. The real test for society is ensuring that those restrictions on the right to privacy go no further than is necessary for the achievement of the other proper objectives of a democratic society.
In its frenzy to root out supposed wrongdoing and in its desire to reintroduce a modern day version of the medieval village stock where supposed and actual wrongdoers can be pelted with our collective venom and distaste through the mouths of Tribunal Counsel, society should not lose sight of the larger and more fundamental issues involved. The twin objectives of rooting out wrongdoing and respect of the right to privacy are not incompatible.
The importance and justification of the recognition of a right to privacy was expressed so eloquently by Brandeis J. in OLMSTEAD -V- UNITED STATES in the following term:
"The makers of our Constitution ………… recognised the significance of a man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone - the most comprehensive of rights and the right most valued by civilised men."
It may ultimately be too high a price to pay to lose such a right. It is certainly too high a price to pay where the protection of that right is not inconsistent with the objectives or efficacy of Tribunals of Inquiry.
PAUL GALLAGHER
16 July, 1999
1 unreported, Supreme Court, 28th July 1998].
2 [1934] I.R. 284.
3 1984] I.R. 36
4 [1970] I.R. 217.
5 [1978] ILRM 25.
6 He gave examples such as the secret ballot and the marital privacy recognised in the McGee case.
7 [1987] I.R. 587.
8 [1988] I.R. 757.
9 [1993] 3 I.R. 67.
10 [1994] 2 I.R. 8.
11 [1996] 3 I.R. 67.
12 [Unreported High Court, Hamilton P., 10th May 1989]
13 [1989] I.R. 126.
14 [993] ILRM 747.
15 [1998] 2 I.R. 479.
16 [1999] 1 ILRM 241.
17 At Page 256.
18 [1998] 3 I.R. 368.
19 [1992] 2 I.R. 542 at 603.
20 At Page 124.
21 [1992] 2 I.R. 542.
22 277 U.S. 438 at 478.