Many statutory bodies have the power to carry out investigations. Often, the law is silent on whether a report is to be prepared and published generally. A Supreme Court judgment in April 2009, clarifies the issue. 

Background to Case

In February 2005, Joe Higgins TD spoke in the Dáil of ill treatment of Turkish workers by Turkish owned Gama Construction Ireland Limited. He alleged that Gama imported workers from Turkey and their situation was a “modern form of bonded labour”. He said they were paid between €2-€3 per hour by Gama who controlled their passports and demanded “an extent of hours worked that can only be described as grotesque”. Almost immediately, the Minister for Enterprise, Trade and Employment ordered the labour inspectorate of his Department to enquire into the allegations. The investigators started preparing a report. Gama sought a judicial review to quash the report. The High Court made an order quashing the report and restraining its general publication and circulation, even to the Minister and relevant authorities.

The Minister and the inspector appealed. The Supreme Court prevented publication to the general public of the report but directed that the persons entitled to have sight of the report must be confined to those State bodies with a prosecutorial function in relation to the matters identified in it. This included bodies such as the Competition Authority, the Director of Corporate Enforcement, the Financial Regulator and the Law Society. This was despite the fact that the inspector had no express statutory power to prepare such a report for publication.

The statutory powers under which the Inspector had been appointed did not expressly allow for the preparation of a report for publication. However both the High Court and the Supreme Court were of the view that the other express powers of the inspector under the Employment Acts would be of little value if he could not inform the Minister, and other bodies charged with enforcing the obligations imposed by the Acts, of the matters arising in his investigation. 

What does it mean for statutory bodies with powers of investigation?

It may well be argued that statutory bodies who can order investigations to be carried out, should think twice before publishing the report generally.

However, despite the absence of any express statutory powers to do so, they may still be entitled to pass the results of an investigation to the relevant Minister and to other statutory bodies who may have an interest in the subject matter of the investigation.  

What does it mean for individuals or entities under investigation?

This case is also important for individuals or entities the subject of an investigation by a statutory body. Such persons or entities should seek legal advice as to the powers of the statutory body to publish the report, especially if a general publication in the media could result.  Equally they should ensure that if a report is being prepared, they are being afforded sufficient opportunities to give their views on any draft findings that are adverse to them.