Appeal No: 069/2011

IpsofactoJ.com: International Cases [2015A] Part 9 Case 6 [SCIre]


SUPREME COURT OF IRELAND

Coram

Ivor Callely

- vs -

Pat Moylan

Denham CJ

Murray J

Hardiman J

Fennelly J

O'Donnell J

McKechnie J

Clarke J

9 APRIL 2014


Judgment

Justice O'Donnell & Justice Clarke

I

Introduction

  1. At one level this appeal concerns questions about the payment of expenses to a member of the Oireachtas and the procedures followed by an Oireachtas Committee in considering allegations arising out of such payments. At another level this appeal raises very important questions about the separation of powers and, in particular, the entitlement of the courts to review disciplinary decisions made by the Houses of the Oireachtas in relation to their own members.

  2. The background to these proceedings starts with a public controversy which emerged in the middle of 2010. Suggestions were made of impropriety in the way in which the respondent (hereinafter “Senator Callely”) made claims for expenses. In late May and early June, formal complaints in writing were made by members of the public which were ultimately referred to the Committee on Members Interests of Seanad Éireann (although it is not clear that this is a juristic body). The first to seventh named appellants (hereinafter “the Committee”) are the members of the Committee who conducted hearings during June and July of 2010 and ultimately determined that Senator Callely had misrepresented his normal place of residence for the purposes of claiming such expenses. The Committee found that this action was inconsistent with the proper performance by Senator Callely of the function of his office as a Senator and was inconsistent with the maintenance of confidence in the performance by Senator Callely of his functions as such. The report of the Committee containing those findings is entitled “Report of the Results of an Investigation into Complaints Concerning Senator Ivor Callely” (hereinafter “the Report”) and is dated the 14th July 2010.

  3. Thereafter, on the 14th July 2010, Seanad Éireann passed a resolution (hereinafter “the Resolution”) which, having referred to the Report, censured Senator Callely and resolved that he be suspended from the House for a period of 20 days and that his salary not be paid during the time when he was so suspended.

  4. Senator Callely sought an order of certiorari quashing the Report and certain other consequential relief in the High Court and was successful. The Committee and the Seanad have appealed to this Court against that decision.

  5. In the course of the proceedings before the High Court, an issue was raised on behalf of the Seanad and the Committee to the effect that it was inconsistent with the separation of powers as recognised in the Constitution for the courts to seek to quash either the Report or the Resolution. For the reasons set out in his judgment, Callely v Moylan [2011] 1 I.R. 676, O’Neill J. rejected that argument. In addition, O’Neill J. held that the procedures which led to the conclusions in the Report and thus, to the consequences determined on in the Resolution, were unfair to the extent that both of those measures should be quashed. Both sets of issues remain alive on this appeal. Against that background, it is appropriate to start by referring to the procedural history.

  6. Procedural History

  7. On the 6th September 2010, Senator Callely applied for leave to seek judicial review. Ryan J., to whom the original application was made, adjourned the hearing until the following day to enable him to read the papers. At the resumed hearing, counsel representing the Committee and the Seanad applied to be allowed address the court notwithstanding the fact that, in accordance with ordinary practice, the application for leave was being moved ex parte. The principal point addressed at that stage on behalf of the Committee and the Seanad was the suggestion that Senator Callely was precluded, on separation of powers grounds, from seeking to quash the Report and the Resolution. In the light of those issues being raised, Ryan J. directed that there be a so-called telescoped hearing at which both the application for leave and, if appropriate, the full application would be heard together.

  8. In that fashion the case ultimately came to be heard before O’Neill J. who delivered his judgment on the 14th January 2011.

  9. It should also be noted that the appeal before this Court took place in two phases. The hearing as originally listed proceeded in the ordinary way to a conclusion. However, while the court was considering the issues raised, it was determined that the matter be re-listed for further hearing directed particularly to the question of the relevance, if any, of Article 15.12 of Bunreacht na hÉireann to the separation of powers issues which arise in this case.

  10. Against that background, it is next necessary to turn to the issues which arise on this appeal.

  11. The Issues

  12. As already noted, there is a key issue as to whether the High Court was correct in concluding that the courts have jurisdiction to entertain an application to quash a report or a resolution of the type arising on the facts of this case.

  13. Assuming that the courts have such jurisdiction, further issues arise as to whether, on the merits, it can be said that the High Court was correct to hold, as it did, that the Committee and Seanad Éireann acted ultra vires by failing to exercise their respective adjudicative functions in an appropriate manner by making what was said to be a political judgment on the issues in the investigation thereby allegedly breaching Senator Callely’s constitutional right to natural justice and fair procedures.

  14. In addition, the question of whether the High Court was correct to hold that the Committee had misconstrued the term “normal place of residence”, as that term is used in the legislation and the regulations governing the payment of expenses, also arises.

  15. The Legislation and the Regulations

  16. Section 4(1)(c) of the Oireachtas (Allowances to Members) Act 1938 (hereinafter “the 1938 Act”) creates an expenses regime to allow Senators to recoup costs incurred in travelling to the Seanad. Section 4 in relevant part provides:

  17. The travelling facility to be granted to each member of the Oireachtas under this Act shall be- ....

    (c)

    in the case of a member of Seanad Éireann, travelling facilities between Dublin and his normal place of residence for the time being.

    At the time of the events in this case, the applicable rate of payment was provided for in the Oireachtas (Allowances to Members) (Travelling Facilities and Overnight Allowances) Regulations 1998 (S.I. No. 101 of 1998) (hereinafter “the Regulations”). Regulation 4 provided an option to members residing more than 15 miles from Dublin. Such members could either opt for a daily allowance or a travel allowance based on mileage and an overnight allowance. Pursuant to regulation 5, a senator exercising the option under regulation 4(b) could do so “once and once only for each relevant period in respect of which the member is entitled to an allowance under that paragraph” and must notify the Clerk of the Seanad of that choice in writing.

  18. The Ethics in Public Office Act 1995 (hereinafter “the 1995 Act”) creates a statutory regime aimed at regulating the proper conduct of designated persons including members of the Oireachtas. Its provisions were amended by the Standards in Public Office Act 2001 (hereinafter “the 2001 Act”). Under s. 8 of the 1995 Act, each House was required to establish a select committee with responsibility for investigating complaints. In the case of the Seanad, this committee is known as the Committee on Members' Interests of Seanad Éireann, and is the Committee for the purposes of this litigation. The 2001 Act extended the matters which such a committee could investigate to specified acts. A “specified act” is defined in s. 4(1)(a) of the 2001 Act by reference to a person having:

  19. done an act or made an omission after the commencement of section 2 that is, or the circumstances of which are, such as to be inconsistent with the proper performance by the specified person of the functions of the office or position by reference to which he or she is such a person or with the maintenance of confidence in such performance by the general public, and the matter is one of significant public importance.

    Section 10(1) of the 1995 Act requires that where a relevant committee carries out an investigation in relation to a specified act, a report of the results should be prepared, and, if that report concludes that a contravention has occurred, such report must be laid before the relevant House.

  20. Section 28 of the 1995 Act, as amended, governs the actions to be taken by a House once a report has been laid before it. Under s. 28(1), the relevant committee shall;

  21. if it considers it appropriate, having regard to all the circumstances of the case cause a motion to be moved in that House for a resolution that such action or actions specified in subsection (2) as may be specified in the resolution and is or are reasonable in all the circumstances be taken by that House in relation to the matter.

    Those actions, under subsection (2), include:

    (a)

    the taking note by the House concerned of the report of the Committee, or the report of the Commission, concerned,

    (b)

    the censuring of the office holder or other member concerned by the House,

    (c)

    the suspension of the office holder or other member concerned from the service of the House—

    (i)

    for such period not exceeding 30 days on which the House shall have sat as may be specified in the resolution concerned ....

    In addition, subsection (2A) provides:

    (2A)

    (a)

    Notwithstanding subsection (4), where the action specified in a motion for a resolution under subsection (1) is or includes that specified in subsection (2)(c), it may also, subject to compliance with the conditions specified in paragraph (b), include the withholding from the office holder or other member concerned of so much of the annual sum by way of salary payable to him or her under the Oireachtas (Allowances to Members) Act, 1938 , as may be specified in the resolution.

    (b)

    The conditions referred to in paragraph (a) are:

    (i)

    that the Committee concerned is of opinion that the act or contravention to which the motion relates was done or made intentionally and was of a grave nature,

    (ii)

    that the withholding is reasonable in all the circumstances,

    (iii)

    that the amount of the annual sum specified in the resolution does not exceed the amount thereof payable in respect of the period of suspension from the service of the House concerned specified in the resolution.

  22. It is clear that what is contemplated by s. 4(1)(a) of the 2001 Act as a contravention is an act (called a “specified act”) which is inconsistent with the proper performance by a relevant office holder of their office or is such as would undermine the maintenance of confidence in such office. The precise breadth of that provision might be a matter of some legitimate debate. It is argued on behalf of the Committee and the Seanad that the section contemplates acts which are not directly in breach of any specific rule or regulation but which, to use a colloquial term, might be said to be such as would “bring politics into disrepute”. The disciplinary rules of many organisations from sporting or cultural bodies to representative bodies of professions include provision to like effect although not always expressed in exactly the same language.

  23. The question of the breadth of s. 4 provides a backdrop to one of the issues which was debated at the hearing of this appeal. Indeed, it might be said that it lies at the heart of Senator Callely’s complaint. As already noted, the question of the proper definition of place of residence for the purposes of claiming expenses is one of the issues between the parties. It will be necessary in due course to say something briefly about published advices on that question which were available at the time when Senator Callely made his expenses claims. However, one of the points made on behalf of the Committee at the appeal in this Court is that the Committee were entitled to conclude that it was an abuse of the expenses system for Senator Callely to claim travelling and overnight expenses based on having an ordinary residence in Cork when he was not actually travelling from Cork to Seanad Éireann and was not staying overnight in Dublin without having a residence available to him in Dublin during the relevant period. It is argued that such remains the case even if it was technically open to Senator Callely to make a claim in accordance with the Regulations because of the meaning of the term “ordinary place of residence” in the 1938 Act. Put another way, the Committee argues that even if Senator Callely was technically entitled, to claim travel and subsistence expenses based on having an ordinary residence in Cork, his reliance, it is said, on that technicality to claim expenses which were never going to be incurred was the type of act which, in the words of s.4, is inconsistent with proper performance of his office and the maintenance of public confidence in the performance of that office.

  24. It should also be noted that Senator Callely resisted that argument on a number of bases. First, he argued that the case which was brought against him before the Committee was not one which in substance involved an allegation of bringing politics into disrepute by claiming expenses to which he was technically entitled but which, it might be said, went against the spirit of the expenses regime, but rather was a case in which it was alleged that he was in actual breach of the expenses regime. Second, he says that it was not made clear at the hearings of the Committee that the Committee was considering the possibility of making an alternative finding of bringing politics into disrepute. Third, he argues that the Report of the Committee does not make it clear that he was not in breach of the expenses regulations themselves and was only found to have acted in contravention of what is required by s. 4 by virtue of a finding that he had, although technically correct, claimed expenses in circumstances that would bring politics into disrepute. Indeed, in a forceful argument, his counsel strongly suggested that, had the Report of the Committee been confined to a finding of that latter type, it might well have been the case that Senator Callely would not have sought to challenge the Report at all.

  25. Against that background, it is next necessary to turn to the facts.

  26. The Facts

  27. By letters dated the 31st May 2010 and the 2nd June 2010 complaints pursuant to s. 8 of the 1995 Act were received by the Clerk of the Seanad. These letters were referred to the Committee and, on the 3rd June 2010 the Committee concluded that there was sufficient evidence to potentially sustain a complaint and that it would carry out an investigation. As required by s. 32(6)(b) of the 1995 Act, a statement of contravention was provided to Senator Callely. It stated:

  28. Two complaints from members of the public have been referred to the Committee on Members Interests of Seanad Éireann under the provisions of s. 8 of the Ethics in Public Office Act 1995 (as amended by the Standards in Public Office Act 2001) (“the Acts”).

    The two complaints relate to allegations that Senator Ivor Callely misrepresented his normal place of residence for the purpose of making claims for allowances. The allegations are such that they may give rise to contravention under the Acts if it is determined that the act or omission complained, or the circumstances of which, is a specified act (within the meaning of s. 4 of the Standards in Public Office Act 2001) and is determined to be inconsistent with the proper performance by a Member of the functions of the Office of Member or with the maintenance of confidence such performance by the general public and the matter is one of significant public importance.

  29. A public hearing was carried out over three days, being the 25th June 2010, the 30th June 2010 and the 13th July 2010. Evidence was given by Senator Callely on the 25th June and the 13th July explaining the various changes in his circumstances over the previous three years. He explained that prior to his appointment to the Seanad by An Taoiseach in August 2007 he had changed his principal residence to Kilcrohane, Bantry, County Cork, despite retaining a home and constituency office in Dublin. This was, he said, communicated by him in December 2007 on making his first expenses claim. Claims for expenses were then made based on travelling from Cork between the 3rd August 2007 and the 1st September 2008.

  30. On the 2nd October 2008 the Members’ Services (the office in the Oireachtas that deals with allowances for Members) wrote to Senator Callely:

  31. I note from your letter of December 2007, that you have stated that the House at Kilcrohane, Bantry, County Cork, is your ‘current principal residence’. However, for avoidance of doubt and for absolute certainty for factual and audit purposes, I would be grateful if you could certify, in writing, that this house in Bantry was ‘your normal place of residence for the time being’ for the period of the claim. This is the statutory provision used in s. 4(1)(c) of the Oireachtas (Allowances to Members) Act 1938, for payment of such expenses.

    For ease of reference, the term ‘normal place of residence’ has been defined by the Department of Finance in previous correspondence as ‘what is involved is a premises which, though not necessarily one’s permanent and principal abode, is used for a period which is both of some length and for a purpose which is not ad hoc and goes beyond mere shelter in passage such as a few nights in a hotel’.

    Senator Callely replied:

    .... as already advised, my personal situation has changed since June 2007, as per my previous communication in December 2007. I can confirm that my residence in Kilcrohane is my normal place of residence for the time being, though not necessarily one’s permanent and principal abode at all time. It is the residence from which I received my appointment to Seanad Éireann ....

    The Department of Finance definition referred to in the above correspondence appears to emanate from advice provided by the Attorney General in 1987. Senator Callely sought to place emphasis on this advice during his testimony to the Committee on the 13th July 2010.

  32. It is argued by Senator Callely that his normal place of residence, as that term is used in the 1938 Act and, in particular, as interpreted in the advices to which reference has been made, was in fact Cork. On that basis it is argued that the Committee were guilty of a misinterpretation of the law.

  33. In any event a nil claim was submitted for the period between the 1st September 2008 and the 31st December 2008. Claims were subsequently made on the basis of travelling from Cork for periods between the 1st January 2009 and the 2nd October 2009. A nil claim was then submitted for the remainder of that year. Senator Callely claimed on the same basis, i.e. travelling from his Cork residence, for the period from 1st January 2010 to 28th February 2010. By a letter of 2nd April 2010 Senator Callely returned, by cheque, a sum being the March portion of his travelling and overnight allowances.

  34. Senator Callely had enquired about changing the basis for his allowance to the daily allowance in June 2009 but had been told that only one election could be made in a calendar year and that he had elected to make his claims on the travel and allowance basis. This enquiry was made on the basis that Senator Callely had been spending more time than previously in Dublin. This was said to be due to “evolving personal, domestic and professional circumstances.” On 16th December 2009 Senator Callely again wrote to the Members’ Services Office and said the following:

  35. As stated in my last letter of 30th November, I would prefer ‘my travel to reflect my actual and/or to be vouched to reflect actual expenses’.

    I understand a new expenses system will be introduced shortly, but will not be retrospective. In order to reflect travel between my Kilcrohane and Dublin abode and the expenses incurred, I wish to indicate that my claim, up to August 2008 is my last claim for 2008, I am claiming for eight months only in 2008, and I do not intend to claim for September, October, November or December 2008, as I feel this best reflects my particular situation.

    I await the new expenses system and do hope it will accommodate my position.

  36. On 14th July 2010 the Committee issued the Report of the Results of an Investigation into the Complaints concerning Senator Ivor Callely. The ‘Findings and Determinations’ section stated the following:

  37. 1.

    The Committee determines that Senator Ivor Callely has done a specified act, as contemplated by s. 4 of the 2001 Act, by misrepresenting his normal place of residence for the purpose of claiming allowances. The Committee finds that such action was inconsistent with the proper performance by Senator Callely of the function of the office of Senator, was inconsistent with the maintenance of confidence in the performance by Senator Callely of the function of the office of Senator by the public, and was of significant public importance.

    2.

    The Committee determines that the aforementioned act on the part of part of Senator Callely is continuing.

    3.

    In order to cease the specified act, the Committee determines that Senator Callely, in conjunction with the relevant authorities, take account of the findings of this report and regularise and make good his allowance affairs and cease to misrepresent his normal place of residence. In this context, the Committee records Senator Callely’s clear undertaking given in the evidence on 25th June, 2010, that he would ‘reimburse’ or ‘repay’ any overpayment of allowances.

    4.

    The Committee determines that the specified act on the part of Senator Callely was done intentionally.

    5.

    The Committee determines that the specified act on the part of Senator Callely in all of the circumstances was of a serious and grave nature.

    6.

    The Committee determines that Senator Callely did not act in good faith, having regard to all the circumstances.

    In making all of these determinations and findings, the Committee took into account all of the evidence before it, and on balance, agreed that the weight of all the facts taken together, including but not limited to the facts that Senator Callely:-

    Describes his residence as his family home;

    Maintains a Constituency Office in Dublin which has regular weekly opening hours and at which Senator Callely advertises on his website that he is available to attend Mondays, Wednesdays and Fridays;

    Represents on his website that he is continuing to work in the Constituency in Dublin North Central and that he continues to live in Dublin North Central;

    Has directed the Seanad to send his post to his family home in Clontarf;

    Used his family home in Clontarf for the purposes of receiving post in relation to his Ministerial pension;

    Uses his family home in Clontarf for the purpose of correspondence with the Revenue Commissioners; and

    Was registered to vote in Dublin.

    link Senator Callely to his family home in Clontarf rather than to Kilcrohane, County Cork.

    The Committee is strengthened in its conclusion by the fact that Senator Callely entered nil claims for September, October, November and December 2008 and 2009, and has not cashed certain cheques in 2010.

    The Committee believes that the expenses regulations would benefit from a clear and more robust definition of “normal place of residence”. In the interest of maintaining public confidence in the Houses, the Committee would recommend that this matter is addressed.

  38. It recommended the following actions be taken against Senator Callely:

  39. (a)

    that the Seanad note this report of the Committee;

    (b)

    that the Seanad censure Senator Callely, and

    (c)

    that the Seanad suspend Senator Callely from the service of the Seanad for a period of twenty days on which the Seanad shall have sat.

    Considering the Committee has determined that, in its opinion, the specified act on the part of Senator Callely was done intentionally and was of grave nature, and considering it reasonable in all the circumstances, the Committee would recommend that the Seanad also resolve to withhold from Senator Callely so much of the annual sum by way of salary payable to Senator Callely under the Oireachtas (Allowance to Members) Act 1938, during the period of the twenty days suspension.

    The recommended resolution was passed by the Seanad on the same day.

    The Proper Approach

  40. It is clear that what might be termed the ordinary judicial review issues which arise in this case can only be addressed if this Court has constitutional jurisdiction to entertain a challenge of the type brought by Senator Callely in these proceedings. If the Court should determine that the separation of powers express and inherent in Bunreacht na hÉireann do not permit such a challenge, it seems to us that it would be wholly inappropriate to comment in any way on the merits or otherwise of Senator Callely’s challenge. For those reasons it is important to turn first to the question of the separation of powers and the justiciability of the issues sought to be raised by Senator Callely.

    II

    Justiciability

  41. This case self-evidently raises extremely important issues in relation to the separation of powers. As Binnie J. observed in Canada in Canada (House of Commons) v Vaid: [2005] 1 S.C.R. 667 at para. 4:

  42. There are few issues as important to our constitutional equilibrium as the relationship between the legislature and other branches of the State on which the Constitution has conferred powers, namely the executive and the courts.

    It is an important part of the principle of government by separation of powers that it falls to the least powerful and dangerous branch to define the proper area of functioning of each of the branches of government. In entrusting this task to the judicial branch, the Constitution places considerable trust in the courts to identify and maintain the proper areas of activity of each branch including their own. But the obligation to respect the legitimate sphere of activity of each branch of government is not reserved to the judiciary. It applies equally to each of the other branches. As McLachlin J. observed in New Brunswick Broadcasting v Nova Scotia (Speaker of the House of Assembly) [1993] 1 S.C.R. 319 at p. 389:

    It is fundamental to the working of government as whole that all these parts play their proper role. It is equally fundamental that no one of them overstep its bounds, that each show proper deference for the legitimate sphere of activity of the other.

  43. The High Court (O'Neill J.) allowed Senator Callely's claim and made an order quashing the report concerned together with certain consequential orders. The Committee and Seanad Éireann have appealed against that decision to this Court. Before the High Court there were two main areas of controversy. The first concerned the extent to which it was permissible for the courts, in exercise of the judicial power under the Constitution, to review a report of a House of the Oireachtas or a committee thereof. It was argued on behalf of the Committee and Seanad Éireann that such issues were non-justiciable. Second, on the assumption that the relevant issues were justiciable, there was a dispute as to whether, on the facts and the law, there had been an error of law or a breach of Senator Callely's entitlement to a fair process.

  44. Senator Callely succeeded in the High Court on both areas of controversy. The Committee and Seanad Éireann have appealed to this Court suggesting that the trial judge was incorrect both in so far as he held that the relevant issues were justiciable and, even if this Court were to find the issues to be justiciable, in holding that there was any error of law or lack of fair procedure such as would justify quashing the report.

  45. The finding of justiciability plainly raises very important questions and it is to that issue that we first turn. In order to fully understand the question which this Court must now address under that heading, it is important to set out the argument made in respect of justiciability before the High Court and the findings of the trial judge in that regard.

  46. The Argument in Favour of Justiciability

  47. It is first appropriate to note the terms of Article 15.10 of the Constitution which is in the following terms:

  48. Each House shall make its own rules and standing orders, with power to attach penalties for their infringement, and shall have power to ensure freedom of debate, to protect its official documents and the private papers of its members, and to protect itself and its members against any person or persons interfering with, molesting or attempting to corrupt its members in the exercise of their duties.

  49. The argument on justiciability proceeded, at different times, on what might be described as a “narrow basis” or a “broad theory”.

  50. The argument, on the narrow basis, drew attention to the fact that the consideration of the Committee was either exclusively or largely conducted under legislation rather than, it was argued, on foot of “rules and standing orders” so that, it was said, whatever immunity from judicial scrutiny might be conferred in respect of the imposition of penalties for breach of rules or standing orders as a result of Article 15.10, could not apply.

  51. The broad theory, on the other hand, which appears to have been accepted in the High Court, is to the effect that the proceedings of the Committee, even if conducted pursuant to standing orders and explicit rules, would nevertheless have been reviewable at the suit of a member because of the assertion that his constitutional right to reputation may be affected by the finding. Thus at para. 47 of the High Court judgment it is said:

  52. It would seem to me that the boundary between exclusive roles of the Oireachtas, on the one hand, and the High Court on the other, appropriately respecting the separation of powers principle, does not exclude access to the courts where a member of the Oireachtas, in circumstances such as those of the applicant in this case, seeks the protection of the Constitution in vindicating his constitutional right to his good name and to natural justice and fair procedures.

    In addition, at para. 70 the trial judge went on to say the following:

    [A] consideration of the subject matter of this investigationand also a consideration of the nature of the investigationlead, in my view, as will be discussed hereunder, to a conclusion that investigations of this type are not within the exclusive realm of the Oireachtas, so as to oust the jurisdiction of the courts under Article 15.10.

  53. The constitutional significance of this conclusion is considerable. Hitherto it had been assumed (and as we shall see, not least by a series of decisions of the Superior Courts) that there was an area of activity within the legislative branch of government that was beyond judicial review even if the precise boundary of that area was a matter of debate. However, if this broader view holds sway, then the words of one commentator are apposite:

  54. The proceedings of the Houses vis-à-vis their own members are quintessentially the precise forum contemplated by Article 15.10, they arise in a context closely proximate to the conduct by the Houses over their own business and order, and there are strong arguments of policy as to why the Houses should exercise an exclusive and final authority over matters of their own internal discipline. Indeed, if a Deputy or Senator can mount a challenge of this kind to an internal decision of the Houses, one wonders what – apart from Oireachtas housekeeping such as the Order of questions and administration of debate – is actually consigned exclusively to their jurisdiction by the provision (and therefore, at all).” (see Brian Murray, SC, “Judicial Review of Parliamentary Proceedings and Procedures Under the Irish Constitution” in Carolan & Doyle eds., The Irish Constitution: Governance and Values, (Dublin; Thomson Round Hall; 2008 at p. 147,179).

    Thus, a fundamental issue that has to be addressed is whether there is any area of exclusive competence of the Oireachtas and therefore non-justiciability, and if there is, its theoretical basis and the basis on which it can be said not to apply in the present case. It seems to us that in truth, it must be accepted that the logic of the broad theory means that there is no area, or virtually no area, of non-justiciability. We propose therefore to address the broad theory first, before considering whether the decision in favour of Senator Callely could be justified on the narrow ground. Indeed, the narrow argument can only properly be addressed against the background of the determination of the broader question of what the separation of powers entails as a matter of principle.

    Discussion on Broad Theory

  55. It is important to start by noting the fundamental constitutional architecture provided for in Article 6.1 of the Constitution. All government power is said to be broken down into the legislative, executive and judicial powers which powers in turn are to be exercisable only by organs of State established by the Constitution. As Ó Dálaigh C.J. pointed out in In Re Haughey [1971] I.R. 217 (p. 250), “the Constitution of Ireland is founded on the doctrine of the tripartite division of the powers of government”. The same judge had previously, in Melling v Ó Mathghamhna [1962] I.R. 1 (p. 39), referred to that tripartite separation of powers as having “express limitations on the powers alike of legislature and executive over the citizen”. It might be added in this context that the principle imposes limitations on the extent to which any branch can interfere with another.

  56. Thus, the tripartite division of power requires an analysis of what can properly be said to form part of the respective legislative, executive or judicial powers contemplated by Article 6. To some extent that division stems from the inherent nature of those respective powers. However, the express terms of the Constitution provide some further definition of the separate roles of the respective organs of State. In addition it is important to recall, as was pointed out by O'Donnell J. in Pringle v Ireland [2012] IESC 47, that, as he put it at para. 17:

  57. [I]t is perhaps noteworthy, as the late Professor Kelly was wont to observe, that the form of separation of powers adopted in the Irish Constitution was not the hermetically sealed branches of Government posited by Montesquieu, but rather involved points of intersection, interaction and occasional friction between the branches of Government so established. Thus, by way of illustration only, the Executive appoint the Judiciary and the courts rely on the Executive to execute their judgments; the courts for their part review the acts of both the Legislature and the Executive for compatibility with the Constitution; and the Executive in turn is accountable to the Dáil and in practice commands it; and the members of the Government are required to be drawn from the Legislature. In the architecture of the 1937 Constitution therefore, the respective branches did not exclude each other entirely.

    Thus there is a separate question which arises once a particular power has been allocated to a specified organ of Government. That question is as to the extent, if any, which the Constitution permits any role for either of the other organs of government in the area concerned.

  58. It is necessary to address at this point an objection that might in other circumstances have considerable, even dispositive, force. It is said that the principle of non-justiciability of proceedings in the Oireachtas is not referred to explicitly in the Constitution, and therefore does not exist. Adapting the words of McCarthy J. in The Attorney General v Hamilton [1993] 2 I.R. 250 it is “the positive argument – if it’s not there it isn’t so” (p. 285). That argument cannot however have much, if any, impact here. First, the respondent’s argument in the High Court, and the High Court judgment, accept the principle that there is some area of non-justiciability. The literalist objection therefore has as much (or as little) force in relation to that argument, as to the respondent’s contention. Indeed, an important question that must be addressed if the respondent’s argument is to be accepted is the theoretical justification for the area of non-justiciability except, and an explanation why it does not extend to the claim here.

  59. Second, the principle of separation of powers while fundamental must itself be deduced from the language and structure of the Constitution. As is observed in J.M. Kelly: The Irish Constitution (Dublin; Tottel Publishing; 4th Edition; 2007) (p.108) Article 6 of the Constitution while often rhetorically invoked as the basis of the principle of separation of powers, merely describes, rather than prescribes, the principle. The nature of the separation of powers required under the Irish Constitution, therefore, must be deduced from the terms of the constitutional text, the constitutional structure, and the functions of government envisaged by it.

  60. Third, and more specifically, it has been held that the principle of separation of powers apparent from the Constitution, imposes significant restraints upon the three branches, even though those restraints are not set out in express terms in the constitutional text. As Morgan in The Separation of Powers in the Irish Constitution (Dublin; Round Hall; 1997) observed (p. 10):

  61. Conceptually .... the policy underlying the independence of the judiciary is best regarded as a component, indeed in practice far and away the most important component, of the separation of powers.

    In the landmark case of Buckley v Attorney General [1950] I.R. 67, the High Court and Supreme Court held that the power of the legislature to make laws did not extend to enacting legislation which sought to determine the outcome of litigation then before the courts. This was so notwithstanding what appeared to be the substantial body of legislation which was made since the coming in to of existence of the State, which was advanced in argument by counsel for the Attorney General. A case, which was the simplest of actions known to the law – an ex parte application for the payment out of funds – established a major constitutional principle. In the High Court Gavan Duffy J. stated (p. 70):

    I assume the Sinn Fein Funds Act, 1947, under which this application is made, to have been passed by the Legislature for excellent reasons and as a matter of course, and give to the Oireachtas all the respect due to the legislative assembly of the nation; but I cannot lose sight of the constitutional separation of powers. This Court can, in deference to an Act of the Oireachtas, abdicate its proper jurisdiction to administer justice in a cause whereof it is duly seized.

    In the Supreme Court, O’Byrne J. observed that (p. 81):

    The manifest object of this Article [Article 6] was to recognise and ordain that, in this State, all powers of government should be exercised in accordance with the well-recognised principle of the distribution of powers between the legislative, executive and judicial organs of the State and to require that these powers should not be exercised otherwise.

    Accordingly, he concluded that (p. 84):

    The substantial effect of the Act is that the dispute is be determined by the Oireachtas and the Court is required and directed by the Oireachtas to dismiss the plaintiffs claim without any hearing and without forming any opinion as to the rights of the respective parties to the dispute. In our opinion this is clearly repugnant to the provisions of the Constitution, as being an unwarrantable interference by the Oireachtas with the operation of the Courts in a purely judicial domain.

    The important obligation of the legislature to refrain from exercising its power to make law which would have the effect of determining the outcome of litigation then before the court was to be deduced from the principle of the separation of powers.

  62. In The Attorney General v Hamilton, the court considered a claim to cabinet confidentiality, itself not expressly stated in the Constitution. Finlay C.J. stated (pp. 267-268):

  63. The doctrine of the separation of powers under the Constitution has been identified by this Court as being both fundamental and far reaching, and has been set out in various decisions of this Court in very considerable detail. Yet, it undoubtedly flows from Article 6 of the Constitution ....

    The identification of the doctrine of the separation of powers is based on a necessary interpretation of the consequence of these two somewhat terse sections of the Constitution. It is particularly derived from the opening phrase in Article 6.1: “All power of government, legislative, executive and judicial” and it has led to a very rigid division of rights and responsibilities between the three organs of State, and has led to the necessary categorisation of State activity as falling within one or other of these three separated areas. Elaborate principles of the relationship between the three organs of State have flown from this doctrine.

    The development of the doctrine of the separation of powers, without any express provision in the words contained in Article 6, or in any other provision of the Constitution to designate it, seems to me to justify a development of the claimed confidentiality for discussions at Government meetings for the provisions dealing with collective responsibility and collective activity.

    In the same case O’Flaherty J. said (p. 299):

    So we are called upon to recount again the place of each of the three essential organs of State: legislative, executive and judicial. I believe that each must respect the sphere of influence of the other so that the essential symmetry of the separation of powers which is inherent in Article 6 of the Constitution is preserved.

    The provisions of Article 28.4.3 adopted in the aftermath of this decision while providing for specific limitations on the extent of cabinet confidentiality nevertheless make express provision for the principle. There are also other examples of the influence of the principle of separation of powers. The presumption of constitutionality afforded to the Acts of the legislature and executive is one example. On the other hand the provisions of Order 56 of the Standing Orders of the Dáil limiting commentary on matters before the courts, is perhaps an example in another context. It is not necessary or desirable to attempt a full account of the manner in which the principle applies. It is sufficient for present purposes to observe, that the principle of separation of powers, however difficult to ascertain and delimit in particular circumstances, is a necessary and fundamental component of the Constitution, to be deduced from the structure and language of the Constitution itself.

  64. It is against that background that it is necessary to turn to Article 15. Of course, Article 15.2.1 provides that the sole and exclusive power of making laws for the State is vested in the Oireachtas. The primary legislative function is just that – making laws. The judicial power is, of course, given a role in relation to legislation in that the Constitution expressly confers on the High and Supreme Court a jurisdiction to determine whether laws are consistent with the constitution and, if not, by declaring inconsistency, the power to render the laws invalid. Thus while legislating is the primary and exclusive constitutional function of the Oireachtas it is subject to a measure of judicial control.

  65. But it is clear from a reading of Article 15 as a whole that the constitutional role of the Oireachtas is not confined solely to law making. For example over and above the business of legislation, Article 15.6 confers an exclusive right to raise and maintain military or armed forces on the Oireachtas, war cannot be declared or participated in without the assent of the Dáil (28.3.1), members of the Oireachtas have a representative function (see e.g. Article 16.2.1) and members of the Dáil have a function in holding the Government to account (28.4.1). A useful list of the very differing roles and functions of the Oireachtas, and members of the Oireachtas, as contained in the judgment of McGuinness J. in Maguire v Ardagh [2002] 1 I.R. 385, pp. 612-615. It is apparent therefore, that the proper role and function of the Oireachtas, and members of the Oireachtas, cannot be limited to the business of the consideration and passage of legislation, important though that is.

  66. The Text of the Constitution

  67. There are a number of particular provisions of Article 15 that deserve consideration in the present context. Article 15.10 has already been quoted above, and provides:

  68. Each House shall make its own rules and standing orders, with power to attach penalties for their infringement, and shall have power to ensure freedom of debate, to protect its official documents and the private papers of its members, and to protect itself and its members against any person or persons interfering with, molesting or attempting to corrupt its members in the exercise of their duties.

    Article 15.12 provides:

    All official reports and publications of the Oireachtas or of either House thereof and utterances made in either House wherever published shall be privileged.

    Article 15.13 states:

    The members of each House of the Oireachtas shall, except in case of treason as defined in this Constitution, felony or breach of the peace, be privileged from arrest in going to and returning from, and while within the precincts of, either House, and shall not, in respect of any utterance in either House, be amendable to any court or any authority other than the House itself.

    Finally, Article 15.15 provides:

    The Oireachtas may make provision by law for the payment of allowances to the members of each House thereof in respect of their duties as public representatives and for the grant to them of free travelling and such other facilities (if any) in connection with those duties as the Oireachtas may determine.

  69. A number of observations may be made about these provisions in the context of this case. First, it is apparent that the question of travel to and from the Houses of the Oireachtas, and the making of allowances for such travel, is a matter considered sufficiently important to require constitutional expression. Second, the reference to attaching penalties for infringement of rules and standing orders pursuant to Article 15 clearly show that the Houses of the Oireachtas have a disciplinary function. Indeed, Leo Kohn in his celebrated work, The Constitution of the Irish Free State (London; Allen & Unwin; 1932; pp. 230-231) observed of Article 20 of the Irish Free State Constitution (which was in identical terms to Article 15.10), in reasoning that was influential in the decision in Maguire v Ardagh, that the right to impose a penalty could not be given a broad meaning so as to permit the exercise of power over members of the public. It was concluded therefore that the power must be limited to a disciplinary function in respect of members of the Oireachtas.

  70. It follows from even this superficial consideration of the constitutional text as interpreted that the imposition of penalties on members of the Houses of the Oireachtas in respect of an inquiry into claims for allowances in respect of travelling to and from the Houses is squarely within the constitutional function of the Houses of the Oireachtas. It should be observed however that it is necessary in every case to determine the proper scope of the power conferred upon each branch of government. This is not a function which can be determined by the individual branch itself. It remains emphatically a function of the administration of justice to determine the proper scope of activity accorded by the Constitution to each of the branches of government, and any consequential privilege, immunity or liability.

  71. It might be also observed that this interpretation of the Constitution is itself consistent with principle. In Haughey v Moriarty [1999] 3 I.R. 1 (p. 32) this court stated:

  72. The powers of the Houses of the Oireachtas are not limited to those specifically set forth in Article 15 of the Constitution but must include such powers as are normally and necessarily exercised by a legislature in a democratic state. These powers and the exercise thereof may of course be limited by the provisions of the Constitution.

    In Canada (House of Commons) v Vaid the Canadian Supreme Court had to consider whether a claim by a chauffeur dismissed by the speaker of the legislature was within parliamentary privilege. The test applied was that certain privileges of parliament could be upheld although not referred to explicitly in either the 1982 Charter or the Constitution Act of 1867, if they could satisfy a test of necessity, which it was for the courts to determine. Distinguishing sharply between the application of parliamentary power to outsiders, and decisions made by parliament affecting its own members, the court held that the claim of the chauffeur was not captured by parliamentary privilege, but a matter related to discipline of members would be. At para. 46 Binnie J. said:

    In order to sustain a claim of parliamentary privilege, the assembly or member seeking its immunity must show that the sphere of activity for which privilege is claimed is so closely and directly connected with the fulfillment by the assembly or its members of their functions as a legislative and deliberative body, including the assembly’s work in holding the government to account, that outside interference would undermine the level of autonomy required to enable the assembly and its members to do their work with dignity and efficiency.

    Binnie J. also stated (para. 29):

    In my view, the references to dignity and efficiency and also linked to autonomy. A legislative assembly without control over its own procedure would, said Lord Ellenborough CJ almost two centuries ago, “sink into utter contempt and inefficiency” (Burdett v Abbot (1811), 14 East 1, 104 E.R. 501, at p. 559) “Inefficiency” would result from the delay and uncertainty would inevitably accompany external intervention. Autonomy is therefore not conferred on Parliamentarians merely as a sign of respect but because such autonomy from outsiders is necessary to enable Parliament and its members to get their job done.

    At para. 29 the same judge included among the categories of privilege required by such necessary autonomy “disciplinary authority over members”. At paras. 20-21 he said:

    It would be intolerable, for example, if a member of the House of Commons who was overlooked by the Speaker at question period could invoke the investigatory powers of the Canadian Human Rights Commission with a complaint that the Speaker’s choice of another member of the House discriminated on some ground prohibited by the Canadian Human Rights Act, or to seek a ruling from the ordinary courts that the Speaker’s choice violated the member’s guarantee of free speech under the Charter. These are truly matters “internal to the House” to be resolved by its own procedures. Quite apart from the potential interference by outsiders in the direction of the House, such external intervention would inevitably create delays, disruption, uncertainties and costs which would hold up the nation’s business and on that account would be unacceptable even if, in the end, the Speaker’s rulings were vindicated as entirely proper.

    Parliamentary privilege, therefore, is one of the ways in which the fundamental constitutional separation of powers is respected.

  73. This analysis has clear echoes in the Irish constitutional context. Morgan in The Separation of Powers in the Irish Constitution (p. 222) observed that although there is no express provision in the Constitution akin to that of the Bill of Rights 1689 providing that proceedings in Parliament ought not to be impeached in any court, the same result may be reached by the principle of the separation of powers. The constitutional provisions in the Irish Constitution were “mainly concerned about protecting individual members”. However, the author posed the question:

  74. Does not the separation of powers bar the courts from intervening in the operation of the Oireachtas? For if one examines the policy underlying the law on historic development of parliamentary privilege – the policy of the freedom of parliament from intimidation or even influenced by: the King, the King’s court; the mob; the press; or any other agency which might interfere with the untrammeled discourse of public representatives – one finds a substantial overlap with the separation of institutions aspect of the separation of powers.

    The same author observes that the courts have distinguished carefully between whether or not the case involves an exercise of the legislative power. The foregoing analysis suggests therefore that disciplinary action of the Houses of the Oireachtas in respect of its members is within the constitutional function of each House.

  75. A further observation arising from a consideration of the provisions of Article 15 is that there appears to be a sharp conflict between the reliefs sought by the respondent in these proceedings and the terms of the Constitution. Thus, the first two reliefs sought by the respondent’s statements of grounds were in the following terms:

  76. (1)

    An order of certiorari quashing the Committee on Members Interest of Seanad Éireann’s Report “of the results of an investigation into complaints concerning Senator Ivor Callely” dated the 4th of July 2010. And,

    (2)

    An order of certiorari quashing any resolution of Seanad Éireann moved in Seanad Éireann and/or passed in Seanad Éireann on foot of the respondents’ investigations and the “report of the results and investigation into complaints concerning Senator Ivor Callely” dated 14th of July 2010.

    In support of these reliefs the respondent exhibited and laid heavy reliance, in his grounding affidavit, on statements made by a number of members of the Committee during the course of the Committee hearing, and statements made by a Senator proposing the motion in the Seanad to adopt the report and to impose the sanctions contained in it.

  77. It is difficult to reconcile the reliefs sought with the explicit terms of Article 15.12. It appears to be generally accepted that the report of the Committee of the House are entitled to the same status and privilege as the report of the House itself. See Casey, Constitutional Law in Ireland (Dublin; Round Hall; 3rd edition; 2000; p. 134) and Kohn, The Constitution of the Irish Free State (p. 229). Thus the report sought to be quashed was a report of the House itself entitled to privilege under Article 15.12. In any event, in this case the report was adopted and acted upon by the Seanad itself. Furthermore, it has been held that the privilege conferred by Article 15.12 is an extensive one and is not limited to privilege from defamation. The Irish text makes it clear that privilege here means privilege from any legal proceedings (táid saor ar chúrsaí dlí cibé áit a bhfoilsítear) and as observed by Finlay C.J. in The Attorney General v Hamilton (No.2) [1993] 3 I.R. 227 (p. 268) in rejecting an argument that the privilege in Article 15.12 was limited to defamation:

  78. [The relevant subsections of Article 15] very clearly indicate that there are a great variety of legal proceedings which could follow upon the making of an utterance over and above a claim for damages for defamation, were it not for the privilege and immunity granted by these articles.

  79. Furthermore, Senator Callely in these proceedings has sought relief against individual members of Seanad Éireann and in doing so has relied upon statements made by them in the course of proceedings in Seanad Éireann. However, under Article 15.13 such persons are not amenable to any court or authority other than the House itself for utterances made. This is an individual privilege in addition to the privilege attached to the utterance itself wherever published, pursuant to Article 15.12. It is clear that, in the words of Article 18 of the 1922 Constitution from which this provision is drawn, a member shall not “in respect of any utterance in either House, be amenable to any action or proceeding in any Court other than the House itself”.

  80. The statement of opposition on behalf of the respondent did not raise either Articles 15.12 or 15.13 and accordingly the parties were invited by the court to return to make submissions on the impact if any of those Articles on these proceedings. Consistent with the posture of their pleadings, the respondents did not seek to rely on Articles 15.12 and 15.13 in defence of these proceedings. That may be so as a matter of pleadings between the parties but there remains a fundamental difficulty for this, or any court established under the Constitution, when the relief sought appears to be precluded by the terms of the Constitution itself. Accordingly, even if persuaded that the proceedings before the Committee and in the Seanad were justiciable, we would not be prepared to make orders in the form sought by the respondent and would have required careful argument as to the relief which it would be appropriate to have granted without contravening the Constitution.

  81. But even apart from this point, Articles 15.12 and 15.13 are also relevant to the question of the interpretation of Article 15.10 and the separation of powers more generally. Any theory that the internal operation of a House of the Oireachtas dealing with its own members must be justiciable because the constitutional right to a good name of a member may be affected, must explain how the Constitution could contemplate such justiciability when it expressly protects from legal action of any sort, any individual utterance by a member, and any collective report by either House.

  82. This leads to a further important observation about the provisions of Articles 15.10, 12, 13 and 15. It was apparent that those provisions combined to place the Houses of the Oireachtas and the members for the time being thereof, in a distinct and special legal position. Like other provisions of the Constitution, they operate to place citizens in a position where they are conferred with additional powers, responsibilities and functions, and on occasion subject to additional liabilities. Thus, for example, the President takes precedence over all over citizens under Article 12.1 but is also subject to significant restrictions in respect of his or her right to travel (Article 12.9) and free speech (Article 13.7.3) and shares with judges appointed under the Constitution a restriction on engaging in other offices of emolument, which does not apply to ordinary citizens (Article 12.6.3). In the case of members of the Oireachtas, they have very significant privileges in respect of their individual and collective utterances, and are given significant exemption from criminal law in the shape of privilege from arrest. At a minimum therefore it should not be surprising if the law attaching to the incidence of their membership of the most important collected body in the State, is itself distinct.

  83. Case Law

  84. It follows that the Constitution defines areas within the exclusive competence of each of the powers of government which go beyond the narrowest definition of those powers and includes areas which are either inherently part of the function concerned by virtue of being inextricably linked to that function or must properly be said to fall within the function concerned because of the terms of the Constitution itself. In that context we have no doubt but that determining travel and subsistence expenses and putting in place a regime to ensure that they are properly policed falls within the legislative power conferred on the Oireachtas. That is not, however, an end to the matter. As noted earlier, the fact that a particular function lies within the sphere of one or other organ of government does not necessarily mean that the exercise of that power may not be subject to some degree of interaction with or scrutiny by another power of government. The fact, for example, that a particular function can properly be characterised as part of the executive function conferred on the government itself does not mean that it may not be subject to review in the courts or subject to a requirement to abide by legislation properly passed by the Oireachtas, scrutinised, if necessary, for its consistency with the Constitution by the courts. While the imposition of a policing regime with appropriate penalties in respect of funding made available to members of the Oireachtas to enable them to perform their functions is clearly part of the legislative function contemplated by the Constitution, the real question which is at the core of these proceedings is whether it is a function which is exclusively conferred on the Houses of the Oireachtas or rather while conferred on the Houses, is amenable, nonetheless, to judicial review.

  85. In that context it is appropriate to consider the jurisprudence of this Court concerning the extent to which it may be appropriate for one organ of government to review or have a role in the exercise by another organ of its constitutional role.

  86. There are, of course, cases (to which it will be necessary to turn in due course) where it has been determined that judicial scrutiny is constitutionally mandated notwithstanding that the matter being scrutinised represents the exercise by either the legislature or the executive of their respective constitutional functions. Having concluded that the fixing of expenses connected with the performance by members of the Oireachtas of their functions and the provision of penalties for any abuse of such a system falls within the legislative power conferred on the Oireachtas (or, in the specific circumstances of disciplinary matters, by virtue of Article 15.10, on each House of the Oireachtas separately) it follows that the real question which needs to be addressed is whether the exercise of that function is one which is constitutionally conferred on the Oireachtas and its Houses in a manner which excludes interference by either of the other organs of government. In particular the question which must be addressed is whether interference by the judicial power by the exercise of judicial scrutiny is excluded.

  87. Judicial scrutiny of matters occurring within the Oireachtas has, of course, occurred in the past. Most notably in In Re Haughey this Court scrutinised, on the basis of fair procedures, the conduct of a committee of inquiry within the Houses of the Oireachtas. Thus, at the level of principle, it is clear that there are aspects of the actions which may be taken by the legislature which are subject to judicial scrutiny. However, it is important, in that context, to go back to the comment of Ó Dálaigh J. in Melling v Ó Mathghamhna which noted the limitations on the power of the legislature “over the citizen”. Judicial scrutiny was invoked in In Re Haughey by a citizen who complained about the manner in which the legislature was exercising its power over him.

  88. A key difference between the parties on this appeal was the extent to which it might be said that the Constitution and the jurisprudence of the courts create a distinction between the exercise by the legislature of its constitutional power insofar as it affects, on the one hand, citizens who are not members of either House and, on the other hand, members of the Houses of the Oireachtas. That judicial scrutiny is available to a citizen who is not a member of either House and who may be subjected to aspects of the legislative power can hardly be doubted in the light of the consistent jurisprudence of this Court. The real issue of controversy is as to whether the same principle applies to the exercise of similar aspects of the legislative power over members of the Houses.

  89. Prior to the decision of the High Court in this case, the position in relation to actions taken by committees of the Oireachtas in respect of members of the Oireachtas appeared to have been stated most clearly by McGuinness J. in Maguire v Ardagh, who while commenting on the various committees of each House administering standing orders, observed at p. 629:

  90. All these Committees, all investigations carried out by them and all penalties imposed by them (or by the Dáil or Seanad at their instigation) concern solely the members of the Oireachtas themselves. There is no doubt but that all these matters are non-justiciable in accordance with Article 15.10.

  91. However, that dictum does not, by any means, stand in isolation. There have been consistent and repeated statements that the courts will not intervene in the internal matters of the Oireachtas, at least when they do not affect the rights of non-members. If the respondent is to succeed in these proceedings, it must necessarily mean disavowing such dicta, and distinguishing, and if necessary overruling, any contrary decision. In considering the relatively extensive jurisprudence therefore, it is necessary to keep in mind the two distinctions offered by the applicants, and adopted by the High Court. First, that the decided cases did not involve any proceedings by a member of the Houses of the Oireachtas and accordingly any statements as to a distinction between the position of members and non-members are merely obiter dicta and moreover wrong. Second, it is argued that any cases or decisions tending to suggest an area of nonjusticiability did not involve the assertion of any individual personal rights of the citizen (whether member or non member), which it is argued arise in this case.

  92. Kohn: The Constitution of the Irish Free State

  93. The earliest statement of the limited nature of parliamentary privilege in Ireland is contained in Kohn’s The Constitution of the Irish Free State. His analysis has been influential and was relied on in Maguire v Ardagh. In particular, the statement that the parliament, established by the Irish Free State Constitution, does not have the attributes of a sovereign authority which had accrued to the House of Commons during its conflict with the Crown, but rather was invested by the Constitution “with comprehensive and adequate powers to regulate its business and to maintain its authority” (p. 230) but no more, could be said to be a cornerstone of the decision in Maguire v Ardagh which held that the Oireachtas did not have the power to conduct a fact finding inquiry which could make findings adverse to the good name of a citizen. However, that issue does not arise here. Instead the question here is of the justiciability of something which the Oireachtas undoubtedly has power to do, namely discipline its members by suspension. In our view, it is instructive therefore that Kohn appears to take the view that the Oireachtas is a master of its own internal affairs (p. 230):

  94. Both Houses of the Oireachtas have full power to regulate their procedure by making and amending their rules on standing orders. In this sense the Irish parliament, like the English, enjoys the privilege of 'exclusive cognisance of matters arising in it.'

    [emphasis added]

    This is a particularly important and general statement. It asserts the existence of exclusive cognisance of matters arising within the Houses of the Oireachtas, and thus, that such matters are not amenable to judicial review. Kohn’s work is also the earliest example of a distinction being made between the exercise of powers in respect of members and non-members. Thus, as already observed, he considered that the reference in Article 20 of the 1922 Constitution to the attachment of penalties (in identical terms to Article 15.10) was to be construed as limited to a disciplinary function over members and possibly persons disrupting business, but not more generally. This analysis was repeated in the 1967 Report of the Committee on the Constitution. This, it might be observed, is a departure from a purely literal interpretation of the provision which might suggest a broader sweep to the Article.

    Wireless Dealers Association v Fairtrade Commission (Unreported, Supreme Court, 14th March 1956)

  95. In this case the applicants sought the passage of legislation which if asserted would be immediately damaging to the business of the plaintiff. The claim was rejected both in the High Court and the Supreme Court. Ó’Dálaigh J., as he then was, explained the decision in that case on the basis that:

  96. The Constitution makes each of the two Houses of the Oireachtas complete masters of its own deliberations .... The High Court while granted a general jurisdiction pronounced in the Constitution exercises no function with regard to the deliberations of the Oireachtas.

    [emphasis added]

    It was significant that Ó’Dálaigh J. sought to address the claim in a constitutional context and expressed his conclusions quite generally. The High Court, notwithstanding its extensive jurisdiction exercised no function in relation to the deliberations of the Oireachtas. This case, while an unreported judgment, has subsequently been treated as an authoritative statement of the general principle and has been relied on in a number of cases such as Finn v The Attorney General [1983] I.R. 154, Slattery v An Taoiseach [1993] 1 I.R. 286 and Maguire v Ardagh. This case cannot be distinguished on the basis that no constitutional right was being asserted: that was the very claim being made by the unsuccessful applicants in Wireless Dealers v Fairtrade Commission (hereinafter “Wireless Dealers”). The argument made was that the passage of the legislation would damage their constitutional right to property and that claim in any other context would at least have entitled them to seek an injunction. If it is alleged that any other public law body is about to act ultra vires its powers then it is, in principle, possible to seek an injunction. Here, such a claim was refused in limine because of the lack of jurisdiction of the court in relation to the deliberations of the Oireachtas.

  97. The Report on the Committee on the Constitution 1967 (Dublin; Stationery Office) came to the conclusion that (para. 40):

  98. Article 15.10 ought to be regarded as empowering the Houses of the Oireachtas to deal with internal matters of procedure and discipline only, and to punish its own members for breaches of it rules; ....

    This echoes Kohn’s approach.

    O’Malley v An Ceann Comhairle [1997] 1 I.R. 427

  99. In this case, a member of the Oireachtas had sought to raise a question relevant to the operation of an export credit scheme for beef which subsequently became a matter of significant controversy during the tribunal of inquiry to inquire into the beef processing industry. The Ceann Comhairle wrote to the applicant saying that he was disallowing part of the question as it would involve repetition in light of answers already received from the Minister. However, Order 33 of the Standing Orders of Dáil Éireann, while giving power to the Ceann Comhairle to examine every question put, only permitted him to amend any question “after consultation with the member responsible for the Question”. It thus appeared that there had been a clear breach of the provisions of standing orders. The applicant sought judicial review and was represented by distinguished counsel. However, both the High Court and the Supreme Court refused leave to seek judicial review of the decision. Barron J. in the High Court considered such a review was inappropriate having regard to the separation of powers. He considered that the exercise of the function by the Ceann Comhairle was an internal matter for Dáil Éireann itself. He also pointed out that it appeared to him that once the Dáil had been dissolved, even the right to challenge the Ceann Comhairle ceased since the affairs of that Dáil had been terminated. In the Supreme Court, O’Flaherty J. (with whom Murphy and Lynch JJ. agreed) upheld the decision of Barron J. observing (p. 431):

  100. How questions should be framed for answers by Ministers of the Government is so much a matter concerning the internal working of Dáil Éireann that it would seem to be inappropriate for the court to intervene except in some very extreme circumstances which it is impossible to envisage at the moment. But, further, it involves to such a degree the operation of the internal machinery of debate in the house as to remain within the competence of Dáil Éireann to deal with exclusively, having regard to Article 5, s.10 of the Constitution.

  101. It should be observed that this is a case which cannot be distinguished on the grounds that it involved the rights of a non-member. Here, the complaint was made in relation to the manner in which an officer of the Oireachtas had dealt with a person, then a member. While it might not be said that this necessarily raised any question of constitutional rights, it cannot be said that it did not raise important constitutional issues. Deputy O’Malley was arguably exercising two important functions as a member of the legislature, that of representation and that of holding members of the government to account, when he addressed his question to the Minister. If O’Malley v An Ceann Comhairle was correctly decided therefore, it must stand for the proposition that the power of a House of the Oireachtas to make its own rules and standing orders necessarily involves exclusive cognisance of challenges and complaints in relation to them. In the words of one commentator; “What O’Malley does make clear is that a patent violation of the Standing Orders themselves does not give rise to Judicial Review at the instigation of a member of the Houses because of the separation of powers.” (See Murray “Judicial Review of Parliamentary Proceedings”)

  102. Haughey v Moriarty [1999] 3 I.R. 1

  103. In the High Court in this case, the applicant sought to demonstrate that the Seanad had been improperly convened and that past resolutions pursuant to the Tribunals of Inquiry (Evidence) Act 1921 were invalid. Geoghegan J. held that it was not permissible to consider this issue (p. 16):

  104. [I]t seemed to me that these matters were not justiciable in the courts on the grounds of the constitutional separation of powers. The Dáil and the Seanad regulate and enforce their own procedures.

    [emphasis added]

    While this was a case which involved a former member of the Oireachtas and his family, it is properly characterised as one involving non-members. But once again however, it cannot be distinguished as one which did not involve a consideration of the Constitution or indeed constitutional rights. It could not be said that the Tribunal of Inquiry and the making of orders of compulsion in relation thereto did not involve the constitutional rights of the citizens involved.

    Maguire v Ardagh [2002] 1 I.R. 385

  105. The most significant case in this line of authority is Maguire v Ardagh. It is suggested by the respondent in the present case that the decision in this case is merely a necessary extension of the decision in Maguire v Ardagh. In order to analyse that contention it is necessary to keep in view the central issues which were raised in that important case. The fundamental issue raised by the plaintiffs in that case was their contention that, on a true interpretation of the Constitution, the powers of the Oireachtas did not extend to making inquiries having as their object the finding of facts in relation to the affairs of individual citizens. It is important to observe that this issue does not arise in this case. There is no question but that the exercise by the Seanad of powers of inquiry and, if necessary, discipline over members and in respect of matters relating in particular to allowances for travel to and from the Houses of the Oireachtas, is a matter plainly within the constitutional functions of that House of the Oireachtas. In order, however, to come to its conclusion, the court also had to address an argument raised by the Houses of the Oireachtas to the effect that proceedings in the Oireachtas were not amenable to judicial review in any way and were non-justiciable in those proceedings. While the Supreme Court upheld the claim of the applicants on the first issue by a majority, all members of that court, and the divisional court, were unanimous in rejecting the contention made on behalf of the Committee. However in doing so, all members of the court, and the High Court who addressed this issue, distinguished sharply between cases involving citizens and those involving members of the Oireachtas.

  106. The divisional court (Morris P., Carroll and Kelly JJ.) held that in “.... matters internal to the workings of parliament in carrying out its legislative power or alternatively in dealing with its own members” the Houses of the Oireachtas were not amendable to judicial review (p. 413). The divisional court stated (p. 415):

  107. Whatever about the way in which parliament regulates its own members, a citizen cannot be subjected to a parliamentary process unless it is lawful, within jurisdiction and is fair.

    [emphasis added]

  108. All members of the Supreme Court who addressed the issue agreed with Keane C.J. who said that notwithstanding the absence of express provisions exempting the actions of the Oireachtas from scrutiny in the same way as specified in Articles 15.12 and 15.13, there was nevertheless an area on non-justiciability derived from the separation of powers (pp. 537 – 538):

  109. That is not to say that the courts will accept every invitation to interfere with the conduct by the Oireachtas of its own affairs: such an approach would not be consistent with the separation of powers enjoined by the Constitution. Specifically, the courts have made it clear that they will not intervene in the manner in which the House exercises its jurisdiction to Article 15.10 to make its own rules on standing orders and to ensure freedom of debate, where the actions sought to be impugned do not affect the rights of citizens who are not members of the House ....: see the decision of this court in Slattery v An Taoiseach. It was also held by the former Supreme Court in Dealers’ Association v Fair Trade Commission, that the courts could not intervene in the legislative function itself: their powers to find legislation invalid having regard to the provisions of the Constitution arise only after the enactment of legislation by the Oireachtas, save in the case of a reference of a Bill by the President to this court under Article 26. Nor, in general, will the courts assume the role exclusively assigned to the Oireachtas in the raising of taxation and the distribution of public resources, as more recently made clear by this court in T v Minister for Education and Science .... Different considerations apply however, where, as here, the Oireachtas purports to establish a committee empowered to inquire and make findings on matters which may unarguably affect the good name and reputations of citizens who are not members of either House. An examination by the courts of the manner in which such an inquiry is established in no way trespasses on the exclusive role of the Oireachtas in legislation. Nor does it in any way qualify or dilute the exclusive role of the Oireachtas in regulating its own affairs.

    [emphasis added]

  110. McGuinness J. seemed to expressly conclude that all actions of the Oireachtas which impinge on the rights of non-members were justiciable but that conversely, matters of internal regulation and discipline, were not. At pp. 628 – 629 McGuinness J. (in a fuller version of the passage already cited) said:

  111. It is clear from this sub-article that, as submitted by counsel for the applicants, the Oireachtas “makes its own rules for its own members.” These rules are in the main set out in the standing orders of both Houses. Various committees of each House administer these rules and may provide for penalties for their breach. Committees such as the Committee on Procedure and Privilege and the Committee of Selection are long established and are known as standing committees. In recent years another such standing committee has been established – the Committee on Members Interests of Dáil Éireann. All these committees, all investigations carried out by them and all penalties imposed by them (or by the Dáil or Seanad at their instigation) concern solely the members of the Oireachtas themselves. There is no doubt but that all these matters are non-justiciable in accordance with Article 15.10.” (Emphasis added) The Committee in these proceedings is the Seanad counterpart of the Dáil Committee referred to.

    [emphasis added]

    This is perhaps the strongest statement on this issue in the judgment. It is not questioned by any other judgment and it is directly contrary to Senator Callely's submissions or the decision of the High Court. Moreover, it is consistent with the other judgments in Maguire v Ardagh. At p. 737 Geoghegan J. spoke to similar effect:

    While it is true that out of respect for the separation of powers the courts will not interfere with the internal operations of the orders and rules of the Houses in respect of their own members, the non-justiciability principle stops there. If there is some essential procedural step which a house of the Oireachtas or a committee thereof has to take before rights of an outsider, that is to say a non-member of the House can be affected, then at the suit of that outsider the courts can give relief if that essential step is not taken.

    [emphasis added]

    These statements in an important recent case where the question of non-justiciability of proceedings in the Oireachtas was subjected to close scrutiny, must be entirely disavowed if the respondent is to succeed.

    Howlin v Morris [2006] 2 I.R. 321

  112. In this case, Hardiman J., in a minority concurring judgment, adopted the view that the distinction drawn in the judgments in Maguire v Ardagh between the application of rules and procedures to members and to non-members, was a “vital” one. He said at para. 48:

  113. On the small numbers of occasions when the courts have been prepared to supervise the orders or procedures of an Oireachtas body it has been at the suit of non-members whose rights were affected .... a decision on whether to grant immunity from otherwise lawful disclosure in respect of what are claimed to be the private papers of a member, or to refrain from doing so, is that of Dáil Éireann itself or its lawful delegate. If such decision does not affect the rights of anyone who is not a member of Dáil Éireann, that decision appears to be final and unreviewable.

    [emphasis added]

  114. Together these dicta add up to a very substantial and consistent body of authority which would be overturned if Senator Callely were to succeed on the broad theory. In our view it is not possible to dismiss these observations as mere dicta, and therefore not binding, and furthermore wrong. A distinction considered vital as recently as Howlin v Morris cannot be so readily discarded. Furthermore, it seems to us that these observations, and particularly those in Maguire v Ardagh, are closely intertwined with the reasoning in that case and the basis upon which the court rejected the claim on behalf of the Houses of the Oireachtas to general non-justiciability of all proceedings in the Houses. In any event, we consider that the distinction drawn, and the decisions made, are correct and consistent with principle . It is noteworthy that similar distinction has been made elsewhere. In Canada (House of Commons) v Vaid it was observed (para. 20):

  115. As courts are apt to look more closely at cases in which claims to privilege have an impact on persons outside the legislative assembly than at those which involve matters entirely internal to the legislature.

    Binnie J. quoted the well known passage from Stockdale v Hansard (1839) Q.B. 112 E.R. 1112 (p. 1192, para. 39):

    All persons ought to be very tender in preserving to the House all privileges which may be necessary for their exercise, and to place the most implicit confidence in their representatives as to the due exercise of those privileges. But power, and especially the power of invading the rights of others, is a very different thing: it is to be regarded, not with tenderness, but with jealousy.

  116. It was suggested in the judgment of the High Court that the distinction between members and non-members in this regard creates an impermissible discrimination contrary to Article 40.1 of the Constitution. However, and with respect, this reasoning cannot be supported. There can be few better examples of a difference in social, and indeed constitutional, function justifying a difference in treatment in the law. Members of the Oireachtas are given unique duties powers and privileges by the Constitution. It is hardly surprising that that role also involves some limitation of the rights otherwise afforded to citizens in a different context. As already observed, there are other examples in the Constitution where citizens appointed or elected to particular posts are given different privileges, obligations, duties, and on occasions, liabilities.

  117. Up to now it seems to have been accepted that there is an area of non-justiciability in relation to proceedings in either House of the Oireachtas. Indeed the applicant in the present case argues that there remains some area of non-justiciability. However, if such an area exists then it must be explained how it is justified by reference to the Constitution, and why these proceedings do not fall within such area of non-justiciability. In our view no plausible explanation has been forthcoming. The broad theory is in truth itself inconsistent with any area of non-justiciability and any limitation on proceedings other than that which is expressly provided for by Articles 15.12 and 15.13. If this is correct it is difficult, indeed impossible, to reconcile such a conclusion with not merely repeated recent observations of this Court, but also with the decisions in Wireless Dealers and in O’Malley v An Ceann Comhairle.

  118. In Wireless Dealers, Ó’Dálaigh J. concurring held that to grant an injunction was an interference with the freedom to be protected by Article 15.10. But Article 15.10 does not itself protect freedom of debate. It merely gives each House the “power to ensure freedom of debate”. It is clear therefore, that Ó’Dálaigh J. deduced that the power of the House to protect that freedom of debate within the Oireachtas was protected by the Constitution itself and that as a consequence, the court could not grant any order in relation to it. It is important to consider the significance of this decision. After all, a court is entitled to grant an injunction to restrain an apprehended wrong. If for example, a county council or any other public law body was purporting to act in a manner which it was contended was unconstitutional or in any other way ultra vires, then it would at least be open to a party to argue in court and have determined the question of whether or not an interlocutory injunction should be granted. However, that fundamental part of the administration of justice is not available when a plaintiff seeks to contend that the Oireachtas enacting legislation is breaching the obligation upon it under Article 15.4. This cannot be reconciled with the broader theory which suggests that when the rights of a citizen are affected (which is precisely what was argued by Wireless Dealers), the courts can intervene in, and restrain, the actions of the Oireachtas.

  119. In O’Malley v An Ceann Comhairle both the High Court and the Supreme Court expressly held that the complaint was not justiciable. The High Court expressly said that this was by virtue of the separation of powers and that appears to have been accepted in the judgment of O’Flaherty J. in this court. Again, it is self-evident that there is no express provision to this effect. It might be said that this conclusion follows from the words of Article 15.10 which refer to the right of the Houses to make their “own” rules and standing orders. However, the broad theory requires that a narrow view be taken of this power. There is no necessary reason to deduce from the power to make rules, the power to police them, enforce them, and exclude judicial review. A private club can make its own rules but that does not normally preclude a member from applying to court to restrain breach of them. Again this area of non-justiciability cannot be reconciled either with the broad theory or the reasoning process by which it is justified. Once again it is not too difficult to recast O’Malley v An Ceann Comhairle as a constitutional claim. The claim as already observed, while made by a person who had since lost his seat, was nevertheless a claim in reliance on members of the Dáil at the relevant time. Yet his claim was not justiciable.

  120. It is important to note that this reasoning does not mean that all the proceedings of the Oireachtas are immune from scrutiny or that members lose their constitutional rights. As already observed, it is emphatically the function of the courts to determine the proper boundaries of the exercise of the legislative power in each case, which, pursuant to the separation of powers requires that their proceedings be non-justiciable. This cannot be a matter for the Oireachtas, or either House. Therefore, it seems to us that the real test in each case is whether the actions sought to be subjected to review form an important and integral part of the exercise of the legislative power and does not directly affect persons outside the Houses of the Oireachtas. In that context, it is important to note that the “specified act” which can be the subject of an inquiry under s.4(1) of the 2001 Act must be an act which interferes with the ability of a member of the relevant House to carry out his constitutional function as such member. The definition of "specified act" in substance, provides for as much. Purely private activity which could not impact on the carrying out of the constitutional legislative function is expressly excluded. It is true that such activity is not confined directly to the act of legislating but, for the reasons already analysed, the legislative function seems to us to go beyond the core activity of participating in deliberations leading to the adoption of legislation. We are, therefore, satisfied that the sort of activity which can be considered to be a "specified act" is closely associated with the core legislative function and comes within an area which can legitimately be governed by rules and orders.

  121. Furthermore, the fact that the Constitution requires that there remain an area of activity in the legislature which is non-justiciable, does not mean that that area is beyond the reach of the Constitution. The Oireachtas is itself required to uphold the Constitution and to respect the rights of citizens, whether members or not. This indeed, is no doubt why the Oireachtas has adopted rules to protect individuals in the context of the exercise of freedom of speech within the Oireachtas which is guaranteed by the Constitution and why there is elaborate provision for fair procedures in the legislation providing for committee hearings under the ethics in public office legislation. The fact that there cannot be immediate recourse to the courts places, if anything, a heavier onus on the Oireachtas to ensure that constitutional rights are respected in proceedings which are themselves non-justiciable. Finally, and on a related point, the fact that the area of non-justiciability is itself derived from the principle of separation of powers under the Constitution, is itself a limitation on the manner in which the powers may be exercised. A principle which is derived from the Constitution and intended to maintain constitutional equilibrium, could not be used to subvert the order and values protected by the Constitution. Accordingly, proceedings which amounted to a fundamental departure from the dictates of the Constitution, which was neither prevented nor remedied by the Oireachtas itself then (as indeed was perhaps contemplated in passing in cases such as Finn v The Attorney General [1983] I.R. 154, Slattery v An Taoiseach [1993]1 I.R. 286, and O’Malley v An Ceann Comhairle) the Courts could be obliged to act to maintain the Constitutional balance. It is however, neither necessary nor perhaps desirable to speculate on the precise circumstances in which it could be said that the principle of separation of powers no longer required that the proceedings of the legislative power be beyond judicial scrutiny. No such case is alleged here and nor does it appear to have arisen as a matter of history since the foundation of the State. It is not to be readily assumed that such an occasion would arise in the future.

  122. Thus, we conclude that the separation of powers, at least in principle, means that internal disciplinary proceedings of the Oireachtas which are properly within the scope of the legislative power, are non-justiciable. If therefore, the proceedings had been brought pursuant to rules or standing orders, we conceive that they could not be challenged in these proceedings. We apprehend that this is the view of the majority of the Court. A further question however, remains as to whether the fact that the Oireachtas has chosen to legislate rather than adopt rules and orders can have any effect on the justiciability of decisions made in a case such as this. This is, in effect, the narrow basis to which we now turn.

    III

  123. Discussion on the Narrow Basis

  124. It is necessary to consider if the decision of the High Court can be justified on the narrower ground of the absence of formal rules or orders. There are, it seems to us, a number of reasons why this is not possible. First, it is apparent from some of the matters cited above that the principle of non-justiciability does not solely depend upon the words of Article 15.10 but also, and perhaps more importantly, is derived from the separation of powers. Second, it is important to consider why it was necessary to provide explicitly for a power to make rules and standing orders. It seems to us that the purpose of Article 15.10 resides in the word “each”. In other words, each House of the Oireachtas, independent of the other, and of anyone else, can adopt its own rules which have the force of law. It does not require the concurrence of the other House or the President. It is therefore an important expression of the autonomy of each House, something which is indeed relevant to the larger issue in this case.

  125. As Geoghegan J. observed in Howlin v Morris, the main purpose of Article 15.10 is “to dispense with the necessity for legislation” (para. 93). But it does not follow from this that, if the rules are contained in legislation, they lose the protection of the Constitution. The function of Article 15.10 is to ensure that each House has the independent capacity to adopt its own rules and it does not have to acquiesce in rules formulated by any other body including the other House. It is worth asking why it was thought necessary to introduce legislation in this case at all. In the first place it was necessary because there were financial consequences to the machinery being established. Perhaps even more importantly, legislation was necessary because, in respect of an inquiry, whether by a committee of the Oireachtas or the Commission established by the Act, it was necessary to confer powers to summon witnesses and compel the production of documents. This is something that requires legislative authority and is beyond the competence of either House whether by rule or standing order. Finally, the Act applies of course to many persons other than members of the Oireachtas but applies the same substantive standard to all those within its scope. It was certainly convenient therefore to put all of the provisions in the same piece of legislation.

  126. If each House of the Oireachtas independently and autonomously adopts the legislation including that portion of the legislation establishing both the mechanism for procedure and the substantive standard of behaviour, we cannot see any reason to say that it has not adopted its “own” rule, even if it happens to be the same rule as that applying to the other House of the Oireachtas.

  127. In any event, the matter does not end there because by standing order 90 the Seanad, in our view, adopted, by standing orders, the procedures contemplated in the Act. Standing order 90 (of the 2007 Standing Orders of the Seanad) provides:

  128. There shall stand established at the commencement of every Seanad, a Select Committee of Seanad Éireann which shall be called the Select Committee on Members’ Interests of Seanad Éireann, to perform the functions conferred on it by the Ethics in Public Office Act, 1995.

  129. Thus, if there was any doubt about it, it seems that the Seanad, by creating a committee to operate the Act has, by standing order, adopted the rule of behaviour in the Ethics in Public Office Act 1995 (as amended). Indeed, in the High Court, the High Court judge acknowledged this and conceded that “Standing Order 90 does draw the respondents’ inquiry within the ambit of Seanad standing orders” (para.78). However, he considered that could not be conclusive because he considered the subject matter of the investigation manifestly fell outside the “normal sphere of parliamentary activity” (para. 78). This was undoubtedly, so he said; “where the subject matter of the inquiry and the potential findings of fact were likely to cause great damage to the good name and reputation and, perhaps, livelihood of the Member under investigation.” (para.78). This distinction cannot be sustained. The narrow ground is essentially a formal and technical one: the objection was to the absence of standing orders and the High Court’s (correct) acknowledgement that standing order 90 brings the proceedings within the realm in which standing orders ought to be fatal to the narrow ground. Furthermore, for the reasons set out above we do not agree that the subject matter of this inquiry fell outside the legislative function.

  130. Finally, and in any event, the non-justiciability of the internal operations of the Oireachtas is not solely dependent on the existence of Article 15.10 rules; it is derived from the separation of powers. If something falls within an area of non-justiciability mandated by the separation of powers, essential to Constitutional equilibrium, it does not lose that status by the introduction of legislation which facilitates the performance of the function. Accordingly we would allow the appellants’ appeal and set aside the order of the High Court.

    IV

  131. Review

  132. However a majority of the court takes the view that the absence of rules adopted by standing orders means that the proceedings of the Committee and Seanad are justiciable. Accordingly it is necessary to address the question of whether the Report and the Resolution were unlawful or otherwise ultra vires and should be quashed.

  133. Shorn of much rhetoric and debate, the core of the issue is simply this: does the fact, now accepted by all parties, that former Senator Callely can be said to have complied with the provisions of the Department of Finance definition of “normal place of residence” as being “a premises which, though not necessarily one’s permanent and principal abode, is used for a period which is both of some length and for a purpose which is not ad hoc and goes beyond mere shelter in passage, such as a few nights in a hotel”, mean that the finding of the Committee and the consequent censure by the Seanad cannot stand? This was indeed how the issue was analysed in the High Court. Paragraph 99 of the judgment sets it out with admirable clarity:

  134. As the respondents now accept that the applicant’s claim for expenses was in compliance with the Department of Finance definition, and as these guidelines were not ultra vires the Act of 1938, it necessarily follows that their determination is clearly based on an error of law.

  135. It is also clear that no question of any other breach of fair procedures arises. Senator Callely was given a statement of the procedures the Committee proposed to follow which set out in elaborate detail the procedures which would be accorded to him. He was given notice of the issues to be the subject of the hearing. He was invited to attend and informed that he was entitled to be represented if he saw fit. He was permitted to hear and test by cross examination the evidence given to the Committee, to give evidence on his own behalf, and to make submissions to the Committee. He participated very fully in the proceedings and as an experienced former deputy he was clearly comfortable with the manner in which the hearing proceeded. The proceedings were not adversarial. There was no prosecutor and little formality. There is no claim that the proceedings of the Committee were unfair to Senator Callely. The core question therefore is the error of law alleged. That depends first on whether Senator Callely can be said to have complied with the Department of Finance definition, and second, whether that definition is itself a correct interpretation of the provisions of the Oireachtas (Allowances to Members) Act 1938 (as amended).

  136. The payment of expenses for attendance at the Oireachtas, while provided for in the Constitution, has always been shrouded in somewhat complex provisions, and has never been the subject of comprehensive review and analysis. At times it appears that the legislation has been criticised as allowing for excessively generous allowances in part compensation for what was seen as a failure to increase Oireachtas salaries (see Oireachtas (Allowances to Members) and Ministerial, Parliamentary, Judicial and Court Offices (Amendment) Act 1998). Somewhat remarkably, the original structure enacted shortly after the coming into force of the Constitution remains in place. Thus, s. 2 of the 1938 Act provides that:

  137. Subject to the provisions of this Act, each member of the Oireachtas shall, out of monies provided by the Oireachtas, be paid the allowance specified in this Act and be granted the travelling facilities specified in this Act.

    The expression “travelling facilities” is defined by s.1 of the 1938 Act to include matters such as the “repayment of fare paid for travelling in any public tram, omnibus, char-a-banc or similar public conveyance”. Notwithstanding its quaint language, this definition remains operative for members of the Oireachtas in the 21st century. Section 4(1)(c) of the 1938 Act provides that the travelling facilities to be granted to a member of the Oireachtas shall be:

    [I]n the case of a member of Seanad Éireann, travelling facilities between Dublin and his normal place of residence for the time being.

    [emphasis added]

    It is this last phrase which lies at the heart of this case.

  138. It is of some interest that the concept of “normal place of residence” is not defined and does not appear to have created any difficulty of interpretation or application in the succeeding half century. An issue arose in 1987 as a result of which the Department of Finance appears to have sought advice from the Office of the Attorney General. The advice itself is not among the papers, but an excerpt from it is referred to in a letter of the 8th of September 1994 from the Assistant Secretary of the Department of Finance to the Head of Administration of the Houses of the Oireachtas. That letter provides as follows:

  139. In examining future claims for any deputies or senators, you will, I presume, take full account of the legal advice obtained in 1987. While this confirmed that the words ‘normal place of residence for the time being’ could be construed as governing a temporary holiday home the Attorney General’s Office indicated at the time that ‘while the concept is quite imprecise it seems to me that what is involved is a premises which, though not necessarily one’s permanent and principal abode is used for a period which is both of some length and for a purpose which is not ad hoc and goes beyond mere shelter in passage, such as a few nights in a hotel while attending a conference or staying briefly with friends’.

    This advice was, it appears, prompted by issues which had arisen in connection with members claiming travelling allowances from holiday homes, which had emerged following an audit by the Office of the Comptroller and Auditor General. It is not clear if Senator Callely, who was at the relevant time a deputy in Dáil Éireann, was the subject of the original advice in 1987, but it does appear that he had benefited from the view that holiday homes could be included within the concept of “normal place of residence for the time being”. In an email in June 2010, the Assistant Secretary to the Houses of the Oireachtas Service, Conan McKenna, recalled the fact that “holiday home expenses claims had been paid in the 1990s with the D/Finance approval (subject to restriction) to then Deputy Callely”. However, the same email noted that the law had been changed by the Regulations ( S.I.101/98) by the “once and once only” provision “ thus effectively locking out holiday home claims and rendering the position pre 1998 irrelevant to the issue at hand”. It will be necessary to consider the effect of the Regulations later in this judgment. However, before doing so it is desirable to recall the facts by reference to which this issue arises in this case.

  140. In the aftermath of the 2007 general election Senator Callely lost his seat in Dáil Éireann and was a candidate for election to Seanad Éireann. He failed to secure election to Seanad Éireann but was appointed to that House by the then Taoiseach. Following his appointment, he wrote a letter addressed to “To Whom it may Concern, Member’s Services, Leinster House, Dublin 2”. That letter reads as follows:

  141. A Chara,

    I wish to submit my daily travelling and overnight allowances for which I am entitled to claim. My personal situation has changed from June 2007 and while I retain my Dublin home in my constituency office, my current principal residence is Kilcrohane, Bantry, County Cork, as per my letter of appointment to Seanad Éireann as attached. I would appreciate if you can advise as to how best to proceed.

    The attached letter from the Department of the Taoiseach was dated the 3rd of August and was addressed to Mr Callely in Kilcrohane. Senator Callely appears to have attached considerable significance to the fact that this letter was addressed to him in County Cork. However, it does not appear important in the present context. Wherever Mr Callely was in early August was the address to which the letter was to be sent. There is no constitutional or statutory requirement that such a letter be addressed to the recipient’s normal place of residence. More importantly, Senator Callely’s letter also attached a completed form for subsistence and travel allowances for attendance at Leinster House. It was signed by him and gave his “home address” as “the Paddock, Kilcrohane, Bantry, County Cork.” It expressed the distance in kilometres from his “home to Leinster House to the nearest kilometre” as 370 km and ticked the box seeking “overnight allowance and travel allowance” which was only applicable to persons with normal places of residence more than 24.135 km from Leinster House (the metric equivalent of 15 miles). On the same occasion he submitted an overnight claim form in respect of travel expenses. He sought to recoup expenses incurred in attending Leinster House between the period of the 3rd August 2007 to 3rd November 2007 and set out 39 one way journeys at 370 km per journey and a total of 38 overnight allowances to be recouped in respect of journeys to Dublin to attend Seanad Éireann (20), for parliamentary visits with other members (3), and using the facilities of the Houses (15). Again this was signed by Senator Callely who certified that he was submitting the application “in strict conformity with the legislation and regulations relating to the recoupment of the above expenses to members of the Houses of the Oireachtas”. A further form was submitted for the period from the 4th of November to the 31st of December in respect of 21 one-way journeys, 26 attendances in the House, two parliamentary business visits with members and seven occasions on which he used the facilities of the House. This form was a form for attendance at the Dáil but this appears to have been used in error.

  142. It appears that Senator Callely’s expenses were paid on a number of similar occasions during 2008, 2009 and 2010. In October 2008 the matter was looked into by Derek Dignam of the Offices of the Oireachtas who reported to Conan McKenna. He pointed out that the office had no way of looking behind the claim without risking potential legal counter-claims. However, if Senator Callely continued to claim at the rate he would drawn down about €40,000 per annum, €25,000 more than would have been expected if he had remained on daily allowances, i.e. the rate applicable to someone resident in Dublin. Mr Dignam raised the matter with Mr McKenna with a view to discussing possible amendments to the guidelines.

  143. Almost at the same time, and it appears as part of Mr Dignam’s review, Ms Bernadette McCormack of Members’ Services wrote to Mr Callely referring to his letter of December of the previous year observing that he had stated that the house called “Kilcrohane” was his “current principal residence”. That letter continued:

  144. However, for the avoidance of doubt and perhaps with certainty for future audit purposes I would be grateful if you could certify in writing that this house in Bantry was your ‘normal place of residence’ for the time being for the period of the claim. This is the statutory position used in s.4(1)(c) of the Oireachtas Allowances (to Members) Act 1938 for the payment of such expenses.

    For ease of reference, the term ‘normal place of residence’ has been defined by the Department of Finance in previous correspondence with you as ‘what is a premises which, though not necessarily one’s permanent and principal abode, is used for a periods which is both of some length and for a purpose which is not ad hoc and goes beyond mere shelter in passage such as a few nights in a hotel’.

    The reference to the previous correspondence with Mr Callely is, it appears, a reference to the issue which arose when he sought and obtained expenses for travelling from his holiday home at Kilcrohane and which was referred to in Mr McKenna’s email referred to at paragraph 5 above.

  145. On the same day, Senator Callely replied:

  146. Dear Bernie,

    I refer to your letter of today’s date in connection with my expenses claim.

    As already advised, my personal situation has changed since June 2007, as per my previous communication in December 2007. I can confirm that my residence in Kilcrohane is my normal place of residence for the time being, though not necessarily one’s permanent and principal abode at all times. It is the residence from which I received my appointment to Seanad Éireann (copy already supplied). I would like to thank you and the one stop shop for your assistance in this matter.

    It is clear that, at least from this point on, Senator Callely adopted the language of the advice of the Department of Finance/Attorney General’s Office. He had however been in receipt of expenses for a year at that point. He continued to submit expenses on this basis until 2010. However, for some periods he submitted a nil claim. At the hearing he explained that he was spending more time in Dublin and wanted his expenses to reflect his travel more accurately. As late as the 25th of March 2010 however, Senator Callely completed a parliamentary standard allowance “normal place of residence declaration” form which he described his address as “the Paddock, Kilcrohane, Bantry, County Cork” and the “distance in kilometres from your normal place of residence to Leinster House by the shortest practical route” as 366 km.

  147. In the middle of 2010, a Freedom of Information Act request revealed some of this information and triggered the press coverage, complaints from members of the public and the Committee investigation which became the subject matter of these proceedings. The Committee held hearings on the 25th of June, the 30th of June and the 13th of July, and met in private on the 3rd, 17th and 25th of June, and on the 6th, 7th, 8th and 14th of July. On the opening day the clerk of the Committee read the two complaints and stated;

  148. The two complaints relate to allegations that Senator Callely misrepresented his normal place of residence for the purpose of making claims for allowances. The allegations are such that they may give rise to a contravention under the Acts if it is determined that the act or omission complained of .... Is a specified act within the meaning of section 4 of the Standards in Public Office 2001 and is determined to be inconsistent with the proper performance by a Member of the functions of the Office of Member or with the maintenance of confidence in such performance by the general public ....

    The Report was issued on the 14th of July 2010. It referred to two complaints from members of the public in almost identical terms, as follows:

    .... allegations that Senator Ivor Callely misrepresented his normal place of residence for the purpose of making claims for allowances. The allegations are such that they may give rise to a contravention of the Act if it is determined that the Act or omission complained of, or the circumstances of which, it is a specified Act “within the meaning of s.4 of the Standards in Public Office Act 2001” and is determined to be inconsistent with the proper performance by a member of the functions of the office or with the maintenance of confidence in such performance by the general public in the matter is one of significant public importance.

    It is clear in our view that the allegation made against Senator Callely was the misrepresentation of his normal place of residence. Indeed it is a significant part of Senator Callely’s case that this was so. His essential defence was that he complied with the Department of Finance definition.

  149. The findings and determinations of the Committee were set out in nine numbered paragraphs which have already been quoted but which it is convenient to set out again here:

  150. (1)

    The Committee determines that Senator Ivor Callely has done a specified act as contemplated by s.4 of the 2001 Act by misrepresenting his normal place of residence for the purpose of claiming allowances. The Committee finds that such action was inconsistent with the proper performance of Senator Callely of the function of the office of senator, was inconsistent with the maintenance of confidence in the performance by Senator Callely of the function of the office of senator by the public and was of significant public importance.

    (2)

    The Committee determines that the aforementioned specified act on the part of Senator Callely is continuing.

    (3)

    In order to cease the specified act the Committee determined that Senator Callely in conjunction with the relevant authorities take account of the findings of this report and regularise and make good his allowance affairs and ceases to misrepresent his normal place of residence. In this context the Committee records Senator Callely’s clear undertaking given in his evidence on the 25th of June 2010 that he would ‘reimburse’ or ‘repay’ any overpayment per balances.

    (4)

    The Committee determines that this specified act on the part of Senator Callely was done intentionally.

    (5)

    The Committee determines that the specified act on the part of Senator Callely in all the circumstances was of a serious and grave nature.

    (6)

    The Committee determines that Senator Callely did not act in good faith having regard to all the circumstances.

    In making all of these determinations and findings the Committee took into all of the evidence before it and on balance agreed that the weight of all the facts taken together included and not limited to the fact that Senator Callely:-

    Described his Clontarf residence as his family home;

    Maintains a constituency office in Dublin which has regular weekly opening hours and which Senator Callely advertises on his website that he is available to attend, Mondays, Wednesdays and Fridays;

    Represents on his website that he is continuing to work in the constituency of Dublin North Central and he continues to live in Dublin North Central;

    Has directed the Seanad to send his post to his family home in Clontarf;

    Uses his family home in Clontarf for the purposes of receiving post in relation to his ministerial pension;

    Uses his family home in Clontarf for the purposes of correspondence with the Revenue Commissioners; and

    Is registered to vote in Dublin

    Links Senator Callely to his family home in Clontarf rather than to Kilcrohane, County Cork.

    The Committee is strengthened is its conclusion by the fact that Senator Callely entered nil claims for September, October, November, December 2008 and 2009 and has not cashed certain cheques in 2010.

    The Committee believes that the expenses regulation would benefit from a clear and robust definition of ‘normal place of residence’. In the interests of maintaining public confidence in the Houses the Committee would recommend that this matter is addressed.

    [emphasis added]

    Again it seems quite clear from these findings that the Committee found that Senator Callely had indeed misrepresented his normal place of residence. Indeed, Senator Callely agrees and contends that in so doing the Committee wrongly departed from the Department of Finance interpretation and therefore erred in law.

  151. On the 14th of July 2010 the Seanad adopted a motion proposed, unanimously, by the members of the Committee:

  152. That having regard to the report of the Committee on Members Interest of the results of an investigation into a complaint concerning Senator Ivor Callely, which report was laid before Seanad Eireann on the 14th of July 2010 and in particular, having regard to the findings and determination of the Committee contained in that report, Senator Ivor Callely, notwithstanding any standing order, be censured and he be suspended from the service of the House for a period of 20 days in which the House shall sit with his annual sum by way of salary payable to Senator Ivor Callely under the Oireachtas (Allowances) Act 1938 be withheld for that period and the period of that suspension shall commence forthwith.

  153. There appears to be a clear conclusion that Senator Callely had misrepresented his normal place of residence. In these proceedings, Senator Callely relies almost entirely on the Department of Finance advice in arguing that he did not do so and that there was therefore an error of law in the Committee’s determination. The central issue raised was the correctness of the Department of Finance interpretation as a matter of law. Senator Callely’s case was in essence that in departing from that guidance and applying a test of close connection, the Committee has had incorrectly substituted their own, erroneous, interpretation. That this is so, is very clear from Senator Callely’s Statement of Grounds and grounding affidavit. A few excerpts are sufficient to illustrate this. At paragraph 18 of his affidavit he said:

  154. In the report, the respondents did not make any finding, or purport to make any finding, that my address in Kilcrohane County Cork, was not my “ normal place of residence”, as defined by Members’ Services in their letter to me. I believe my residence in Cork manifestly satisfies the test. Instead, I believe and am advised that in the Report, the respondents purported to apply a test as to whether the facts link Senator Callely to his family home in Clontarf rather than to Kilcrohane, County Cork. I do not believe that there was any basis for such a test and the respondents did not purport to identify the basis or source of this test. I believe and am advised that it flies in the face of the definition provided to me in writing by members services.

    At paragraph 20 he said:

    As set out above, I believe and am advised that the only complaint that was before the committee on Members’ Interests of Seanad Eireann was a complaint that I had misrepresented my “ normal place of residence” for the purpose of making claims for allowances. It will be immediately clear that the definition which had been supplied to me by Bernadette McCormack .... is critical. Any assessment of my conduct must be measured in accordance with that standard. There is no basis for departing from it. I do not believe that I am overstating the position by saying that the definition is the lynchpin upon which the complaint had to be investigated. There was no legal basis upon which the complaint could have been investigated and findings made on any other basis, certainly the committee was not entitled to disregard the definition. Nor was it entitled to substitute a different one. I contend in fact, that this is what was done.

    At paragraph 21 he stated:

    I respectfully believe and am advised that the respondents misunderstood the complaint and misdirected themselves on the issue of law that was before them. In considering the complaint, I believe and am advised that the members of the Committee on Members Interest of Seanad Eireann were required to have regard to and apply the definition of “normal place of residence” as is provided to me in writing by Members’ Services.

  155. The matter became a little more confused however when the Committee came to defend these proceedings. The then Cathaoirleach of the Seanad, Senator Pat Moylan, swore an affidavit in opposition to the relief sought. For present purposes paragraph 19 of the affidavit is particularly important:

  156. The Committee consider that its role was to determine whether the actions of Senator Callely in these circumstances, were such to be as to be inconsistent with the proper performance by him of his office or were inconsistent with the maintenance of competence in Senator Callely’s performance of his office by the general public, within the meaning of s.4(1)(a) of the Standards in Public Office Act 2001. The matter was clearly one of significant public importance. The Committee considered it was exercising a political function, judging a member of the Oireachtas by reference to what Committee members believed to be the appropriate ethical standards expected of a member of the Oireachtas. The Committee therefore reviewed Senator Callely’s action in a political context in circumstances where it concluded that he had a greater affinity with Clontarf that with Kilcrohane. The Committee viewed its actions in the light of their understanding of political ethics and their appreciation of the propriety of Senator Callely’s behaviour. The Committee did not consider than in exercising its peculiarly political functions, it was circumscribed by the interpretation of s.4(1)(c) of the 1938 as given by the Department of Finance in the circumstances outlined by Mr Dignam.

  157. The position taken by the respondents in the statement of opposition was twofold. They sought to contend that the Committee had not determined whether Senator Callely’s claim for travel allowance was properly made within s.4 (1)(c) of the 1938 Act but rather had determined that the submission of such expenses constituted a specified act within the meaning of s.4(1)(a) of the Ethics in Public Office Act 2001 which was not consistent with the proper performance of the applicant of his functions or the maintenance of public confidence in his performance. Accordingly, the determination of the Committee was one “that related to political ethics and propriety of the applicant’s behaviour in submitting such expenses claims”. This appears to be linked to the contention that the issue as a political matter was, or ought to be, beyond review.

  158. At paragraph 10 however it is also pleaded that if the Committee had concluded that the applicant misrepresented his normal place of residence within the meaning of s.4(1)(c) of the 1938 Act:

  159. It was entitled not to apply the Department of Finance Act 1994 or any interpretation of that phrase, as communicated to the applicant by letter dated October 2nd 2008. The latter interpretation of the “normal place of residence” was erroneous and ultra vires the 1938 Act. For the avoidance of doubt the respondents acknowledged that the applicant’s claim for expenses came within the scope of the interpretation given by the Department of Finance.

    [emphasis added]

    This appears to amount both to an acknowledgment that Senator Callely was within the Department of Finance interpretation and a contention that the interpretation was wrong in law.

  160. The High Court held that the political charge of committing this specified act was one which was not properly put to the applicant and accordingly, that it was a breach of fair procedures to so find. In relation to the second claim, as already set out above, the High Court concluded that the interpretation by the Department of Finance in 1994 was intra vires the 1938 Act and that therefore compliance with it (which was acknowledged by the respondents) was in compliance with the Act, and accordingly misrepresentation of Senator Callely’s normal place of residence was an error of law.

  161. The first essential question is whether the interpretation proffered in 1994 by the Department of Finance of the concept of “normal place of residence” is correct in law. If it is, then it is acknowledged that Senator Callely was within that interpretation and accordingly within the Act. However there can be no question of an interpretation being intra vires the 1938 Act. It is either a correct interpretation or it is not. The Department of Finance has not been given any discretion as to the meanings which it can attribute to legislation. The issue is therefore a net question of law and for Senator Callely to succeed on this point at least he must establish that the interpretation of the Department of Finance in 1994 (relaying advice from the Office of the Attorney General) is correct as a matter of law. Indeed there might be an argument that insomuch as the determination of the Committee was the application of a legal test to certain facts, the decision of the Committee should not be interfered with unless clearly wrong by analogy with the line of authority illustrated by Henry Denny & Sons (Ireland) Ltd. v The Minister for Social Welfare [1998] 1 I.R.34. However it is not necessary to resolve that question. The fundamental question is whether, in rejecting the Department of Finance interpretation, the Committee made an error of law.

  162. We have come to the clear conclusion that this interpretation was incorrect and that it certainly was so in 2008, if sought to be applied to Senator Callely’s case. The relevant advice was given in 1987 and it arose, it appears, in the context of whether a member of the Oireachtas was entitled to claim expenses for travel from a holiday home. However, the full advice from the Attorney General’s Office is not available and it is impossible therefore to identity the precise factual context in which it was given. Instead a small excerpt from the advice is included in a letter from the Department of Finance in 1994. It is always dangerous to seek to compress advice in to one or two sentences and to apply that advice or conclusion without regard to the context. Furthermore, it is notable that the interpretation itself is not very precise and is essentially negative. Normal place of residence for the time being is defined as being not necessarily the permanent principal abode and not merely shelter in passage such as a few nights in a hotel. That, it may be observed, still leaves a considerable area for debate.

  163. In our view it is perhaps conceivable that if the language is taken in the abstract and without reference to context other than the fact that it was to provide for the recouping of travelling expenses, it might be possible to include holiday homes and other temporary residences within the section if it referred only to “place of residence for the time being”. There could be a number of such residences in a given year. But the reference to “normal” implies even, at this level of abstraction, that there is one place at any given time (of some permanence) which can be said to be the normal place of residence, even if the person is not residing there for the time being. It is harder to conceive of multiple “normal” places of residence in a given period. This is reinforced when the section is read in the context of the expenses regime more generally. The more clearly an expenses regime is understood as providing for a vouching of expenses actually incurred, the more latitude there is for interpreting “normal place of residence for the time being” as approximating to place of residence. It is after all from that place that a person may depart to travel to the Oireachtas and which determines the extent of the expenses which are to be recouped. On the other hand, the more generalised and simplified the system for expenses, and the less clearly they relate to expenses actually incurred, the more likely it is that normal place of residence should be understood as a single place of some permanence during the Oireachtas session, irrespective of whether it is from that place that the member of the Oireachtas departs when travelling to the Oireachtas. Here, it is of some significance that of all the things that can be said in this case, it has never been suggested that Senator Callely actually incurred any expenses in travelling to the Oireachtas or that he incurred overnight expenses on any of the occasions claimed. Indeed he frankly agreed that he stayed in his Dublin home while attending the Oireachtas.

  164. The development of the Oireachtas allowances regime was clearly in the direction of a generalised system of expenses not directly connected to actual expense incurred. Perhaps the most significant change was that effected by the 1998 Oireachtas (Allowances to Members) and Ministerial, Parliamentary, Judicial and Court Officers (Amendment) Act 1998 which provided for a generous expenses regime of allowances to be paid to government whips, to persons of Oireachtas committees, members of committees, and even extended travelling facilities to former taoisigh who, while members of the Oireachtas, had the use of a State car (and thereby did not presumably incur travelling expenses). These allowances do not appear related in any real way to expenses which may be actually incurred. It is also of some significance that under s.6 of the Oireachtas (Allowances to Members) and Ministerial, Parliamentary, Judicial and Court Officers (Amendment) Act 1998 provision had been made for deduction from expenses of amounts in respect of contributory pension which perhaps indicates that by that stage the expenses regime was seen as a hybrid between true expenses and a form of remuneration. It is not unusual for expenses to be treated as a form of remuneration which benefits the employer as well as the employee since such expenses do not have any impact on pension obligations. It is not necessary to discuss here the merits of the then applicable Oireachtas regime. However the nature of the regime is relevant when considering what interpretation should be given to the phrase “normal place of residence”.

  165. By the time Senator Callely submitted his claims in 2007 the expenses regime had little connection to expenses actually incurred. Once a normal place of residence was identified, expenses were payable at a fixed rate per kilometre dependent upon the number of times a person attended the Oireachtas and travelled for that purpose irrespective of the point of departure. Similarly, overnight expenses became payable without proof of any such expenses being actually incurred.

  166. The 1998 Act also amended the 1938 Act provisions in relation to the making of regulations and permitted the Minister for Finance to make regulations in relation to the manner in which claims were to be made for such expenses. By the Oireachtas 1998 Regulations (SI No.101/1998) the then Minister for Finance provided that a person whose normal place of residence was further than 15 miles from Dublin could opt either for a daily allowance which was payable to Dublin members, or mileage allowance payable at civil service rates in respect of the relevant period, but that the option to so opt could only be exercised “once and once only for a relevant period in respect of which the member is entitled to an allowance under that paragraph”. Under Article 6 of the relevant regulations “relevant period” was defined, in effect, as a 12 month period. As was observed in the correspondence referred to above, this change in the regulations made it impossible to opt for expenses being incurred from a holiday home. Given the fact that election for travelling expenses is made once, and once only, during a given year, it is necessary to take an overview of the places at which a member of the Oireachtas resides during that year and consider which is the (single) “normal” place of residence for that year.

  167. In most cases it should be easy to determine what is the normal place of residence (remembering that there is only one) for a member of the Oireachtas. In cases of difficulty, the inquiry can be refined by recalling that the purpose of the regulation is and remains expenses for travelling to and from the Oireachtas and that therefore the principal focus should be on the residence of a member during the Oireachtas sessions. In cases of genuine difficulty where there are two or more competing residences of some permanence then a decision must be made by reference to the residence with which the member has the closest connection and which can therefore be said to be the normal place of residence. That is precisely what the Committee did in this case. It assessed all the available information which clearly showed that Senator Callely had a closer connection to his residence in Clontarf than that in West Cork. Accordingly, in our view there was no error of law in the Committee’s conclusion on this point.

  168. For that reason it is not perhaps necessary to consider whether, even if the Department of Finance’s interpretation was correct, the Committee was in breach of fair procedures in finding that his claim for expenses undermined public confidence in his office. Clearly it is in principle possible to conclude that strict adherence to a technical provision may nevertheless bring the office into disrepute. The principal complaint here is not with the Committee’s jurisdiction to so find, but rather whether Senator Callely was properly on notice of the possibility of such a finding. We do not think that too close an analogy can be drawn between disciplinary proceedings before a Committee and an indictment in a criminal trial. The Committee must hear and determine complaints made by members of the public. It has no power to reformulate the complaint or add additional complaints, and there is no person performing the role of a prosecutor. Thus, it seems to us that the question is whether the proceedings before the Committee were sufficient to put Senator Callely on notice that he was at risk of such a finding i.e., that he had complied technically with the provisions but was nevertheless guilty of conduct likely to bring the office into disrepute. During the hearings Senator White, the seventh named respondent, stated:

  169. What I am putting to you is this: what do you say to the prospect that the committee might decide or might be saying: ‘look, yes, in terms of the letter of the law West Cork satisfies the definition but for somebody in public life, for a member of the Oireachtas to opt, as it were, to claim expenses in respect of that address rather than the address that he would appear to be very, very substantially associated with is exploiting an imprecise definition that exists, and that is wrong. It is not acceptable’.

    These proceedings were reasonably informal. Senator Callely was obviously comfortable with the procedure in the Committee hearings. It is significant that he did not complain either at the time, or in his affidavit, of the matter being put to him in this way. It was clearly an issue in the deliberations of the Committee. It is noteworthy that while Senator Callely quotes this passage in his affidavit, but relies on it only as evidence of the error of law which he alleges against the Committee. The question was clearly in issue therefore in the proceedings. In the circumstances we do not consider there was any unfairness in the hearings or any error of law in the Committee’s conclusions.

  170. It is true that the Committee did not frankly acknowledge in its conclusions that Senator Callely was in compliance with the Department of Finance interpretation. The first occasion on which this was acknowledged was in the Statement of Opposition referred to above. Whether this reticence was due to a desire not to expose the officials to criticism for proffering that interpretation, or a less high minded desire to avoid public attention and criticism of the Oireachtas expenses regime more generally, may be a matter of speculation and comment, but it cannot resolve this case. In truth the principal complaints about the Committee are directed, with some merit, not to what the Committee did, but rather what it said (or did not say) in its Report and more particularly in the documents filed in defence of these proceedings. But the only issue for this Court is one of law. In our view the Committee was correct in rejecting as erroneous the 1994 interpretation and was entitled to conclude that Senator Callely had indeed misrepresented his normal place of residence and thereby committed a specified act which was inconsistent with the maintenance of public confidence in the performance by him of his office. Accordingly we would allow the appeal and refuse the reliefs sought.

  171. Justice Fennelly

  172. I agree with the joint judgment of O’Donnell and Clarke JJ that, in principle, decisions made in internal disciplinary proceedings by either House of the Oireachtas are non-justiciable and that any proceedings conducted pursuant to rules or standing orders may not be challenged by way of judicial review (paragraph 82 of the judgment). The joint judgment treats comprehensively the relevant provisions of the Constitution and the case-law.

  173. I will confine myself, in these circumstances, to some brief remarks to explain the basis of my concurrence.

  174. It is common case that there is some zone of Oireachtas action into which the judicial power may not normally encroach, which we call an area of non-justiciability. The task is to define it. Although the principle does not flow from any single express provision of the Constitution but depends on a reading of the Constitution as a whole, I believe that Article 15.10 is an indispensable part of the analysis. Its provision that each House “shall make its own rules and standing orders with power to attach penalties for their infringement ....” means, at a minimum, that the Houses each have, in the first instance, exclusive jurisdiction to consider and to adjudicate on complaints or allegations of breach of its rules and standing orders.

  175. The function of this provision in the constitutional structure is that it concerns the performance the functions assigned to it by one of the organs of the State. I am persuaded that this is an exclusive function of one branch of government, the legislature, and that decisions made within this zone should not normally be reviewable by the judicial branch.

  176. It does not by any means follow that a member of a House of the Oireachtas, faced with a disciplinary proceeding to be conducted by his or her peers, enjoys no constitutional protection. Every organ of the State is obliged to respect the constitutional rights of individuals who may be affected by its actions. Most relevantly to disciplinary proceedings, every organ of state, such as, in the case, the Seanad, through one of its committees, is bound to observe the principles of natural and constitutional justice.

  177. The courts do not abstain from judicial review of the internal acts of the legislative branch with a view to diminishing the rights of those affected. On the contrary, the courts must presume that the members of the House of the Oireachtas will be as astute as the judicial branch in ensuring that those rights are guaranteed. In the case of Curtin v Dáil Eireann [2006] 2 I.R. 556, a case concerning a proposal to remove a judge from the bench by means of a resolution of both Houses, pursuant to an Act applying Article 35.4.1 of the Constitution, Murray C.J., delivering the judgment of the Court, noted that it was not “contested by the Attorney General or by or on behalf of the Houses of Oireachtas that the Appellant, faced with a resolution calling for his removal from the bench for stated misbehaviour, is entitled to full plenitude of the protection of all of the rules of fair procedures guaranteed by the Constitution.”

  178. In this context, I express my agreement with the statement, at paragraph 81 of the joint judgment, that a “principle which is derived from the Constitution and intended to maintain constitutional equilibrium, could not be used to subvert the order and values protected by the Constitution.” Thus, if it should transpire that a House of the Oireachtas was either generally or in a particular case disposed to ignore and not observe the constitutional imperatives, the courts, as the ultimate guardians of rights, would be bound to intervene. It is not easy to imagine such circumstances or to devise a standard. Tentatively, I would suggest that the standard should be that of “clear disregard” of constitutional rights adopted in such cases as Curtin mentioned above.

  179. While agreeing with the joint judgment in respect of what is described as the “broad basis” of challenge, I respectfully disagree with the conclusion regarding the “narrow basis.” It seems to me essential to the principle enunciated in the joint judgment that decisions made in internal disciplinary proceedings by either House of the Oireachtas are non-justiciable that such decisions shall have been made by the House of the Oireachtas in question by way of enforcement of “its own rules and standing orders,” made by it pursuant to the power conferred by Article 15.10 of the Constitution.

  180. The Constitution expressly provides for the exercise by each House of the power of discipline over its own members, where it takes the comparatively minimal step of adopting rules and orders covering the matter. Thus, it is to be expected that each House will take that step. In my view, in the absence of such rules or orders, the Court should not conclude that the subject-matter in question evades the purview of judicial review. I would not be willing to conclude that, in the absence of such rules, an affected member of either House is not entitled to access to the normal remedy of judicial review.

  181. It is true that Standing order 90 of the 2007 Standing Orders of the Seanad provides:

  182. There shall stand established at the commencement of every Seanad, a Select Committee of Seanad Éireann which shall be called the Select Committee on Members’ Interests of Seanad Éireann, to perform the functions conferred on it by the Ethics in Public Office Act, 1995.

  183. By this Rule, the Seanad at least took the step of establishing the Select Committee. However, it did not take the other essential step of adopting standing orders providing for the subject-matter in question.

  184. The Ethics in Public Office Act, 1995 and the Standards in Public Office Act, 2001 establish a statutory scheme for the investigation of and reporting on complaints against members of the Houses of the Oireachtas. Section 8 of the Act of 1995 provides that each House is to appoint a select committee. In the case of the Seanad it is to be the Committee on Members’ Interests of Seanad Eireann. Section 8(2) provides (emphasis added: inserted by the Act of 2001):

  185. A person (other than a member) who considers that a member (other than a member who is or, at the relevant time, was an office holder) may have contravened section 5 or 7 or done a specified act may make a complaint in writing in relation to the matter to the Clerk and, subject to subsection (3), the Clerk shall refer the matter to the Committee and shall furnish a copy of the complaint to the Committee.

  186. Section 4(1) provides the definition of a “specified act.” The machinery of investigation and report created by these two acts is entirely statutory. The notion of “specified act” as a subject of complaint is statutory. No rule or standing order of the Seanad adopted it as a subject of complaint. This is not, in my view what was envisaged by Article 15.10 of the Constitution. In order to enjoy the benefit of any immunity from judicial review, at the very least the Seanad would have had to have adopted the notion of “specified act” as the subject of a rule governing members.

  187. I am of opinion that the decision of the Select Committee was not, therefore, immune from judicial review. It follows that the respondent is entitled to the benefit of normal judicial review and that he was entitled to have fair procedures followed by the Select Committee.

  188. However, on the question of whether the respondent did in fact benefit from fair procedures, I am in agreement with the joint judgment of O’Donnell and Clarke JJ. I agree specifically that the complaint made against the respondent was that he had misrepresented his normal place of residence. The technical definition of place of residence was not the point. The point was that, by using the technical definition provided by the Department of Finance, the respondent was claiming travel and overnight expenses which he was not in fact incurring. It was this which was the “specified act” which he was found to have committed contrary to s. 4 of the Standards in Public Office Act, 2001.

  189. For all these reasons, I believe that the Court should make an order allowing the appeal, setting aside the order of the High Court and dismissing the application for judicial review.

  190. Justice Murray

  191. I have concluded, as three other members of the Court have also concluded, that the first ground of appeal of the appellants should fail, namely, their contention that the courts have no power or jurisdiction to review the legality or constitutionality of the procedures followed by the appellants and their decision which led to the disciplinary action against the respondent. First of all, with regards to that particular issue, there are a number of concurring observations which I wish to make.

  192. Justicability

  193. “The whole tenor of our Constitution is to the effect that there is no power, institution or person in the land free of the law save where such immunity is expressed, or provided for, in the Constitution.” (Byrne v Ireland [1972] I.R. 281, Walsh J.)

  194. Each House of the Oireachtas, like other organs of State such as the executive and judicial branches of government, derive their powers from the people pursuant to the provisions of the Constitution.

  195. These powers must be exercised in accordance with the Constitution. Hence, a State founded on the rule of law.

  196. “An independent judiciary guarantees that the organs of State conduct themselves in accordance with the rule of law.” (Judgment of the Court in Curtin v Dail Eireann [2006] 2 I.R. 556 at 617).

  197. In this appeal the first and primary argument made by the appellants puts in issue the fundamentals of the foregoing constitutional tenets. The above named appellants argue on this first issue that when a committee of the Oireachtas, in this case a Seanad Committee, exercises a disciplinary power to make findings of wrongdoing involving a consequential suspension or fine of a member of the Oireachtas it is a power to be exclusively exercised by them according as they consider appropriate without any answerability or review by the courts concerning the lawfulness or constitutionality of the process or decisions concerned. It is, it was claimed, for the Committee of the Oireachtas itself to judge its own conformity with the law and the Constitution.

  198. In broad terms the contention of the respondents is that it does not matter if the committee acted in breach of the Constitution, it does not matter in this case if it denied and breached the guarantees contained in the Constitution governing fair procedures, it does not matter if the committee acted in breach of the powers conferred on it by the Ethics in Public Office Act, 1995. This is so because the separation of powers, as envisaged by the Constitution, and the privileges conferred on the Oireachtas by the Constitution mean that the judicial branch of government, referred to in Article 6 of the Constitution, the judiciary, have no jurisdiction to hear proceedings designed to enforce the law or ensure observance of the Constitution by this committee.

  199. The respondents in the appeal contends that the determination or report of the Committee should be set aside on grounds, inter alia, that the investigation and determination arrived at by the Committee in the exercise of its statutory functions were in breach of fair procedures as guaranteed by the Constitution.

  200. Based on an argument along the lines indicated, the appellants contend that the courts have no business and no jurisdiction to entertain any complaint from the respondent concerning a breach of his constitutional rights. Even if that occurred the courts are not entitled to entertain or examine his application.

  201. The consequence of such an argument succeeding is that an individual member of the Dail or the Seanad could be the subject of a disciplinary procedure depriving him or her of the right to vote for a specified period, or other consequences, without recourse to review by independent courts to protect or vindicate constitutional rights. It may also be a consequence that the electors whom that particular member represented would be deprived of representation, perhaps even during a crucially important vote in the House of which the representative concerned was a member.

  202. Ensuring observance of the law and the Constitution when State powers are exercised are important guarantees not only to institutional rights but to individual rights which is one of the reasons why this Court has emphasised, as in for example Curtin v Dail Eireann cited above, that an independent judiciary with power of judicial review guarantees that those who exercise constitutional or legislative powers “conduct themselves in accordance with the rule of law”.

  203. Furthermore, the reality that parliamentary committees can be “distracted by politics” as it has been put, ought not to be ignored when considering the systemic importance of judicial review since this was a factor which was explicitly taken into account in the decision of this Court in the Maguire v Ardagh case. See, for example, the judgments of Geoghegan J. and McGuinness J. in that case. Geoghegan J. said the risk of bias “gave every reason for rejecting the alleged inherent power to conduct enquiries of the nature” in that case.

  204. In any event, the very essence of the separation of powers requires that an independent judiciary adjudicate on disputes arising from the exercise of powers which affect the rights of an individual. As Walsh J. stated in Byrne v Ireland:

  205. It is as much the duty of the State to render justice against itself in favour of citizens as it is to administer the same between private individuals. The investigation and the adjudication of such claims by their nature belong to the judicial power of government in the State, designated in Article 6 of the Constitution of Ireland ....

    Certainly, each House of the Oireachtas must be free to exercise fully the powers conferred upon it by the Constitution without interference from any other branch of government, executive or judicial. The exercise of such powers must, of course, conform with the Constitution. For example, the core role of the Houses of the Oireachtas to legislate is nonetheless subject to review by the courts as to the conformity of a statute with the provisions of the Constitution. Such review is not an impingement on the free exercise of the Oireachtas of its functions. The courts are not concerned with the merits, as such, of the legislation or of the exercise of a particular power but solely that the requirements of the Constitution have been observed. There is no conflict between the notion of the separation of powers, on the one hand, and judicial review of the process by which those powers are exercised. In Curtin v Dail Eireann all parties fully acknowledge the power of the Oireachtas to remove a judge from office in specified circumstances and all parties acknowledge that the exercise of that constitutional power was not impugned by judicial review by the courts of the exercise of that power as regards its conformity with due process guaranteed by the Constitution.

  206. If the appellants were correct in their contention it would create a haven of immunity from constitutional obligations for committees of the Oireachtas of this nature. For this to occur one would expect it to be expressly stated in the Constitution or, at the very least, be a strictly necessary implication mandated by its terms.

  207. The appellants have not contended that there is any provision in the Constitution which expressly grants such immunity from review by the courts as to the conformity of its procedures and decisions with the Constitution. They have relied exclusively on Article 15.10 as carrying with it some inherent or implied immunity from judicial review. Article 15.10 empowers each House, inter alia, to make its own rules and standing orders with power to attach penalties for their infringement. I agree with Hardiman J. and McKechnie J. for the reasons set out in their judgments that this Article cannot be interpreted as granting the sort of immunity for the exercise of such powers sought in this case by the appellants from a review of constitutional compliance by the courts, and certainly it is not an interpretation which is mandated by its terms.

  208. As noted in those judgments the appellants did not rely on Articles 15.12 or 15.13 as a source of any such inherent power other than referring to them for contextual purposes. In any event, I do not think that the process engaged by the relevant Committee in this case, and the decision it reached, as well as the punishments imposed on the respondent can be characterised as mere reports or publications or utterances for the purposes of Article 15.12.

  209. If the appellants were correct in their contention for constitutional immunity it would concentrate in the hands of a Committee absolute power over the constitutional fate of one elected citizen.

  210. In short, it seems to me that to adopt the view that the courts have no such jurisdiction would be the antithesis of respect for the separation of powers denying, as it would, the role accorded to the judiciary to safeguard personal rights and to ensure that powers are exercised lawfully and constitutionally.

  211. Independent of the foregoing, it must be noted that The Ethics in Public Office Act, 1995 places an express statutory obligation on the Seanad (with a corresponding obligation on the Dail) to establish a committee on members interests of Seanad Eireann. Its function is “to perform the functions conferred on it by this Act.” (s.8(1))

  212. The Act falls to be interpreted in a manner consistent with the Constitution since the Oireachtas cannot pass any Act repugnant to the Constitution. Well established case law requires that statutory discretions in exercising functions conferred by an Act should be exercised in accordance with the principles of constitutional justice. In East Donegal Co-operative v Attorney General [1970] I.R. 317, 341 this Court stated:

  213. the presumption of constitutionality carries with it [such] presumption .... but also that the Oireachtas intended that proceedings, procedures, discretions and adjudications which are permitted, provided for, or prescribed by the Act are to be conducted in accordance with the principles of constitutional justice. In such a case any departure from those principles would be restrained and corrected by the Courts.

    Having regard to this core constitutional function, the courts must also have jurisdiction to review the manner in which powers were exercised under the Act of 1995. Any other approach would give a constitutionally impermissible immunity from scrutiny of an Act of the Oireachtas and the use of its powers.

    Fair Procedures

  214. I also agree that the ground of appeal concerning the observance of fair procedures by the Committee should be disallowed for the reasons set out in the judgment of McKechnie J.

  215. Justice Hardiman

  216. This is the appellants appeal against the order of the High Court on foot of the judgment of that Court (O’Neill J.) delivered 14 January 2011. I shall call the appellants compendiously “the Committee”.

  217. By that order, the applicant (now the respondent) succeeded in quashing on certiorari the Committees report of the result of an investigation into complaints concerning the applicant (“Senator Callely or Mr. Callely”) dated 14 July 2010, and certain consequential decisions.

  218. There is no doubt that the above mentioned finding of the Committee had the potential to be grossly damaging to Mr. Callely in terms of his good name and reputation, and of his livelihood. He provided ample evidence that such damage in fact occurred and this does not appear to be disputed. Some of the evidence in this regard is rather lurid and I do not consider it necessary to rehearse it in this judgment, since it appears not to be in dispute that the procedures adopted by the Committee, and its findings, are capable of affecting the applicant’s constitutional rights and have in fact done so.

  219. Overview

  220. The factual and legal issues in this case can be stated quite briefly. However, once this is done, it will be necessary to rehearse fully the facts and the law relating to the case in a much more detailed fashion. It is hoped that this overview will make that material more digestible.

  221. It must be said at once that the case raises an issue of great constitutional importance, which is whether a Committee of Seanad Eireann, established to carry out an inquiry pursuant to the Ethics in Public Office Act 1995 is, as the Committee claim, absolutely immune from the scrutiny of the Courts even where a gross departure from the universal norms of natural justice and fair procedures is alleged.

  222. The respondent, Mr. Ivor Callely, is a man now at the nadir of his fortunes. He has been a member of the Oireachtas for more than two decades but is now entirely out of public life. It is clear from the evidence in this case that his reputation, standing, and good name are destroyed. It is not for the Court to determine if this is due solely to the matters he complains of in his case against the Committee.

  223. Mr. Callely, I would have thought, is as much entitled to justice in the case which he has is brought against the Committee as any other citizen, whether such citizen is the holder of high public office or not and whether his reputation is good or bad. Indeed, I would have though this axiomatic. But the appellants in this case, the Committee, absolutely deny that Mr. Callely is entitled to challenge their decision in the Courts at all, no matter how great the injustice he alleges. They admit, however, that any other citizen who was not, at the relevant time, a member of the Seanad could have recourse to the Courts in the same circumstances.

  224. Ivor Callely was found by the Committee to have misrepresented his normal place of residence for the purpose of claiming allowances. He was found to have done this intentionally and not to have acted in good faith in doing so. Mr. Callely strongly rejected the charge that he had misrepresented his normal place of residence for the purpose of claiming allowances, or for any purpose.

  225. He relied strongly on the fact that, on 2 October 2008, the Members Service Office of the Oireachtas asked him to “certify in writing” that a house in Kilcrohane, Bantry, County Cork, was his “normal place of residence for the time being”. At that time, in the same letter, the said office drew his attention to the Department of Finance definition of the phrase just quoted. Mr. Callely adopted the definition which the Oireachtas Office had put before him and has at all times claimed that he complied with it.

  226. The Committee made no finding at all in its “Findings and Determinations” as to whether or not that definition was, or was not, the applicable one. It made no finding as to whether or not the Department of Finance had correctly construed the phrase “normal place of residence”. It made no finding, either, that Kilcrohane was not Mr. Callely’s normal place of residence.

  227. Concessions

  228. But the Committee, in its “grounds of opposition” in the present proceedings, made the following concession:

  229. For the avoidance of doubt, the [Committee] acknowledges that the applicant’s claim for expenses came within the scope of the interpretation given by the Department of Finance.

    This concession was in substance repeated at para. 4.2 of the Committee’s written submissions:

    The [Committee’s Members] acknowledge that, having regard to [Mr. Callely’s] evidence as to his use of his house in Kilcrohane, that house constituted a normal place of residence within the meaning of the Department of Finance ‘definition’.

    These concessions were entirely novel: they were not made during the hearing of the complaints against Mr. Callely. They appear on the face of it inconsistent with an upholding of the complaint that Mr. Callely had misrepresented his normal place of residence.

  230. Mr. Callely complains, in effect, that the Committee simply and very artfully moved the goalposts in order to make a finding against him. Having regard to the concession, he claims, he could not have been found guilty of the charge which was notified to him; and he could not have been found guilty of the allegedly quite different charge which the Committee claim now to have had in mind in finding against him, without being notified of it and heard in his own defence to that allegedly different allegation.

  231. The detail of the allegations, and findings, against Mr. Callely is fully explored below, at paras 168 to 193. This exercise demonstrates that they, and the procedures adopted to deal with them, are within the category of allegations and procedures in respect of which Judicial Review is normally available.

  232. But the substance of this judgment relates solely to the Committee’s first point of defence against Mr. Callely’s challenge, which arises at the outset or ‘in limine’: the Committee say that the Court has no jurisdiction to entertain any complaint by Mr. Callely of his treatment at the hands of the Committee, however serious, because he was at the relevant time a member of the Seanad. They quite concede that any person who was not a member of the Seanad could complain of being treated in disregard of the principles of constitutional justice, and could take this complaint to the Courts established under the Constitution: but they claim that, by reason of Article 15.10 of the Constitution, a member of the Seanad is precluded from doing this. That is the only issue which this judgment addresses.

  233. Background

  234. Mr. Callely was, for a period exceeding twenty years, a member at different times of Dáil Éireann or of Seanad Éireann. In this latter capacity, from the time of his appointment to Seanad Éireann on the 3rd August 2007, he was entitled to travelling expenses. This entitlement arose by reason of s.4(1)(c) of the Oireachtas (Allowances to Members) Act 1938. Members of the Seanad are entitled to recover expenses incurred in travelling to attend sittings of Seanad Éireann, from their “normal place of residence”. The dispute underlying these proceedings turns on what this phrase means.

  235. Pursuant to the Oireachtas (Allowances to Members) (Travelling facilities and overnight allowances) Regulations 1998, a member of the Houses of the Oireachtas whose normal place of residence was more than fifteen miles from Leinster House had an option of choosing to claim expenses in attending Leinster House either through a daily allowance or on the basis of a travel allowance based on mileage and an overnight allowance. These Regulations were replaced, on the 2nd March 2010, by the Oireachtas (Allowances and Facilities) Regulations 2010. But it is the 1998 Regulations that are relevant in the present case.

  236. Mr. Callely first submitted a claim for Seanad Eireann overnight and travel expenses in December 2007. He explained that:

  237. My personal situation has changed since June, 2007, and, while I retain my Dublin home and my constituency office, my current principal residence is Kilcrohane, Bantry, Co. Cork, as per my letter of appointment to Seanad Éireann, as attached.

    The respondent attached a letter he had received from the Department of the Taoiseach dated 3 August 2007 informing him of his appointment to Seanad Éireann. This letter was addressed to the respondent at his residence in Kilcrohane.

  238. The respondent claimed travel allowance on that basis during 2008, and portions of 2009. He returned certain expenses paid to him in 2010 on the basis that, during certain periods in that year, he had been spending most of his time in Dublin.

  239. A query to Mr. Callely

  240. By a letter of 2 October 2008, the Members Services Office, the office of the Oireachtas that deals with allowances for Members, made a very specific inquiry of the respondent. The Office asked him “for the avoidance of doubt and for absolute certainty for factual and audit purposes” to “certify in writing, that this house in Bantry was your ‘normal place of residence for the time being’ for the period of the claim”. (Emphasis supplied)

  241. The office pointed out that:

  242. This [i.e. the phrase ‘normal place of residence for the time being’] is the statutory provision used in s.4(1)(c) of the Oireachtas (Allowances to Members) Act 1938, for the payment of such expenses.

    Very importantly, the letter continued:

    For ease of reference, the term ‘normal place of residence’ has been defined by the Department of Finance in previous correspondence as ‘what is involved is a premises which, though not necessarily one’s permanent and principal abode, is used for a period which is both of some length and for a purpose which is not ad hoc and goes on beyond a mere shelter in passage such as a few nights in a hotel’.

    [emphasis supplied]

    The importance of the letter just quoted is very great. It is clear that the applicant was being asked, perhaps challenged, to state that his house in Kilcrohane was not merely “my current principal residence” as per his letter of December 2007 but was his “normal place of residence for the time being” for the period of the claim. The reason given for this request was that the words just quoted were the statutory formula in the 1938 Act. His attention was then specifically drawn to a Department of Finance definition of the term “normal place of residence”.

  243. It is clear that Mr. Callely adopted the Department of Finance definition to which his attention had been drawn by the Oireachtas Office because in his reply of the same date, 2 October 2008, he said:

  244. as already advised, my personal situation has changed since June 2007, as per my previous communication in December 2007. I can confirm that my residence in Kilcrohane is my normal place of residence for the time being, though not necessarily one’s permanent and principal abode at all times. It is the residence from which I received my appointment to Seanad Éireann.

    [emphasis supplied]

    The emphasised phrase is the statutory phrase of which the Department of Finance had given a definition, and to which the Oireachtas office had drawn his attention when asking him to certify “for absolute certainty” that Kilcrohane was his normal place of residence at the relevant time.

    The Newspaper Story.

  245. Subsequently, on the 30 May 2010, the Sunday Independent newspaper published an article stating that Mr. Callely received mileage expenses from Cork – “Ex-Dublin T.D. has Bantry address”. That article seems to have played a vital role in subsequent events, because on 31 May 2010, the day after the article was published, a complaint was made by a Mr. John Mulligan of Boyle Co. Roscommon to the Clerk of Seanad Éireann. This enclosed a copy of the article published the previous day and went to allege:

  246. This article suggests that the Senator made claims for expenses based on his being domiciled in Cork and not in Clontarf in Dublin. It appears from the article that the Senator filled out the ‘home details and allowance’ form with information showing his domicile as being in Cork. Anecdotal evidence would suggest that Senator Callely lives in Clontarf in North Dublin and that his Cork address is simply a holiday home.

    That was the factual basis of Mr. Mulligan’s complaint. There is no doubt that it was a formal complaint: he went on to say:

    From the information contained in the Sunday Independent article, I want to make a formal complaint under s.8 of the Ethics in Public Office Bill [sic] 1995, in respect of Senator Callely’s expenses claims.

    Two days later Ms. Patricia Hurley of Rathmichael, Co. Dublin informed the Clerk:

    I wish to lodge a complaint under s.8 of the Ethics Act 1995 as amended by the Standards and Public Office Act 2001.

    The substance of the complaint was stated by Ms. Hurley as follows:

    Senator Callely has recovered expenses from the Irish tax payer based on an erroneous claim that he lives in Cork. This is a falsehood on two counts.

    Ms. Hurley went on to refer to matters of evidence and concluded:

    I request the matter be reviewed and the appropriate action be taken against Senator Callely.

    The Committee get involved

  247. The Clerk of the Seanad then referred these complaints to the Committee on Members’ Interests of Seanad Éireann. That Committee, composed of the individual appellants in the present appeal, by a decision of the 3rd June 2010 found that there was sufficient evidence to sustain a complaint and also decided that it would carry out an investigation in accordance with the provisions of the Ethics in Public Office Act, 1995 as amended.

  248. The allegation against Senator Callely.

  249. Pursuant to s.32(6)(b) of the 1995 Act the Committee then furnished to the Mr. Callely a “Statement of Contravention”. This was as follows:

  250. Two complaints from members of the public have been referred to the Committee on Members’ Interests of Seanad Éireann under the provisions of s.8 of the Ethics in Public Office Act 1995 as amended ....

    The two complaints related to allegations that Senator Ivor Callely misrepresented his normal place of residence for the purpose of making claims for allowances.

    [emphasis supplied]

    This, then, is the factual component of the “Statement of Contravention” which was formally served upon the respondent. The “Statement of Contravention” went on to say:

    The allegations are such that they may give rise to contravention under the Acts if it is determined that the act or omission complained, or the circumstances of which, is a specified act (within the meaning of s.4 of the Standards in Public Office Act, 2001) and is determined to be inconsistent with a proper performance by a member of the functions of the office of member or with the maintenance of confidence in such performance by the general public and the matter is one of significant public importance.

    Analysis of the “Statement of Contravention”

  251. It is plain that the Statement of Contravention is the initiating document in the Committee’s process against Mr. Callely. The factual allegation made against him was, in the words of the Committee’s “Statement of Contravention”:

  252. That Senator Ivor Callely misrepresented his normal place of residence for the purpose of making claims for allowances.

    The Committee’s statement then, separately, goes on to allege that the allegations “may give rise to a contravention under the Act” if the two statutory criteria are met. These statutory criteria are:

    (a)

    That the act or omission complained (sic), or the circumstances of which, is a specified act within the meaning of s.4 of the Standards in Public Office Act 2001 and is determined to be inconsistent with the proper performance by a member of the function of the office of member or with the maintenance of public confidence in such performance by the general public and

    (b)

    The matter is one of significant public importance.

    Mr. Callely’s complaints in the present proceedings relate to the Committee’s determination of the entirely factual allegation that Mr. Callely “misrepresented his normal place of residence for the purpose of making claims for allowances”.

  253. It seems perfectly clear that it is only if that factual allegation is upheld that the other criteria come into operation at all. The factual allegation must first be proved. That is the plain meaning of the Committee’s own words.

  254. In response to this “Statement of Contravention” by the Committee, Mr. Callely made a statement dated 2 June 2010 to the Select Committee on Members’ Interests. In this he relied, clearly and unambiguously on the letter addressed to him by the Oireachtas Office of 2 October 2008 (quoted above). He referred to the definition of “normal place of residence” to which the Committee had drawn his attention and to his reply to that letter. This was his substantive defence to the allegations. The Committee knew this, and have never denied that they knew it.

  255. The finding against Senator Callely

  256. On 14 July 2010, the Committee issued its report. Under the heading “Findings and Determinations” the following was stated:

  257. (1)

    The Committee determines that Senator Ivor Callelly has done a specified act, as contemplated by s.4 of the Act of 2001, by misrepresenting his normal place of residence for the purpose of claiming allowances. The Committee finds that such action was inconsistent with a proper performance by Senator Callely of the functions of the office of Senator, was inconsistent with the maintenance of confidence in the performance by Senator Callely of the function of the office of Senator by the public, and was of significant public importance.

    [emphasis added]

    There are five further paragraphs, set out in the judgment of the learned High Court judge, but the first paragraph set out above is what is mainly relevant for present purposes. Other findings included that Mr. Callely, had not acted “in good faith”, and “had acted intentionally”.

    Mr. Callely’s challenge

  258. Mr. Callely challenged this decision on the basis that the evidence showed clearly that he had not misrepresented his normal place of residence but on the contrary had positively asserted that Kilcrohane was his normal place of residence within the meaning of the Department of Finance definition of that phrase which had been drawn to his attention by the Oireachtas Office when that Office asked him to “certify” that Kilcrohane, Bantry, was indeed his normal place of residence. The Committee did not find that Kilcrohane was not his normal place of residence, or at all address in its “Findings and Determinations” the Department of Finance Definition. It did not find what his “normal place of residence” was at the relevant time, if it was not Kilcrohane.

  259. The Committee’s Defence

  260. The Committee’s substantive defence to this claim by Mr. Callely was, in the words of the learned High Court judge “quite remarkable”. Notwithstanding the unambiguous finding, quoted above, that Senator Callely “has done a specified act, as contemplated by s.4 of the Act of 2001, by misrepresenting his normal place of residence for the purpose of claiming allowances”, in their defence to these proceedings the Committee denied that it had found that the applicant had misrepresented his normal place of residence within the meaning of the Act of 1938. They also asserted that the Department of Finance’s interpretation of the phrase “normal place of residence” was “erroneous and ultra vires the Act of 1938”. But the Committee then made a central concession.

  261. The Concession

  262. The Committee, in its “Statement of Grounds of Opposition”, in effect the defence to Mr. Callely’s proceedings, said as follows:

  263. (10)

    Without prejudice to the foregoing, if the Committee concluded that the applicant misrepresented his normal place of residence within the meaning of s.4(1)(e) of the Act of 1938 (which is denied), it was entitled not to apply the Department of Finance 1994 interpretation of that phrase, as communicated to the applicant by letter dated the 2nd October 2008. The latter interpretation of the ‘normal place of residence, was erroneous and ultra vires the Act of 1938. For the avoidance of doubt, the respondents acknowledge that the applicant’s claim for expenses came within the scope of the interpretation given by the Department of Finance.

    [emphasis added]

    This is a most remarkable pleading. First, it denies that the Committee made a finding that the applicant had misrepresented his normal place of residence whereas it is quite clear that it had made precisely that finding in so many words. The terms of paragraph 10 of the Statement of Opposition are wholly inconsistent with the plain words of paragraph (1) of the Committee’s “findings and determinations” of 14 July 2010, which is quoted in full above.

  264. This extraordinary pleading is, it is claimed, technically justifiable by reference to the Committee’s extremely subtle interpretation of their determinations which is considered below.

  265. Second, paragraph (10) of the Statement of Opposition attacks the Department of Finance definition of “normal place of residence”. The learned High Court judge expressly found that the Department’s definition was not ultra vires the Act. But the salient feature of this definition appears to me to be that it cannot be denied that it was the operative definition notified to, and adhered to by, Mr. Callely. He did not invent or devise it himself. The Committee says it was entitled not to apply the Finance definition; Mr. Callely complains that it was not entitled to do so without giving him notice that it was doing so, and therefore without hearing him on this vital point. The concession in the last sentence of para. 10 of the Committee’s Grounds of Opposition makes the central importance of the point quite clear.

  266. The Committee’s argument on appeal

  267. The Committee made an argument in their written submissions which was elaborated upon in oral argument. This was to the effect that:

  268. the Committee was not deciding whether the applicant’s claim came within the Department of Finance definition. Rather, the Committee was deciding whether the applicant had done a specified act within the meaning of s.4(1)(a) of the Act of 2001.

    It appears, for reasons set out below, that this argument is very difficult to maintain on the facts of the case. But in oral argument it was developed and slightly altered along the following lines by counsel for the Committee:

    even if Mr. Callely was technically entitled, because of the way in which the 1938 Act and the regulations were drafted, to claim travel and subsistence expenses based on his normal place of residence being in Cork, the fact that he actually claimed expenses on that basis (and, allegedly, claimed expenses that were never going to be incurred) was the type of act which was inconsistent with a proper performance of his office and the maintenance of public confidence in it.

    For the purposes of the present case it is unnecessary to decide whether that allegation could be the subject of a complaint under s.4. What is important for present purposes is that, even assuming that a complaint of the type summarised above could be made, it was not the complaint actually made against Mr. Callely. It was not the allegation that was before the Committee and the different complaint that was before it had been formulated by the Committee itself. It was not the complaint of which he was notified in the “Statement of Contravention”. To make that new and separate complaint, it would have been necessary for the Committee to concede or accept that Mr. Callely’s claim was within the definition noted to him. This acceptance or concession was never made during the Committee’s hearings, or in the Committee’s findings. This concession was made only after the present proceedings had compelled the Committee to think through the logic of its position. As the argument was made on the hearing of this appeal, it appears to me to amount simply to an argument that there was another, different, complaint of which Mr. Callely could have been properly found guilty, if only it had occurred to anyone to frame the contravention alleged against him in that way. I do not think that this can possibly amount to an answer to Mr. Callely’s complaints, which relate, obviously, to the complaint of which the Committee notified him and found him guilty.

    Other aspects of the concession

  269. Thirdly, and perhaps most significant of all, there is the concession emphasised above in the last sentence of para. (10) of the Statement of Grounds of Opposition. For ease of reference I will repeat this here:

  270. For the avoidance of doubt, the respondents acknowledge that the applicant’s claim for expenses came within the scope of the interpretation given by the Department of Finance.

    The first thing that requires to be said about this concession is that it was entirely novel. At no stage during the hearings before the Committee or in the Committee’s findings was it stated or accepted by the Committee that Mr. Callely’s claim for expenses came within the interpretation given by the Department of Finance. The Committee appears simply to have ignored this issue.

  271. If Mr. Callely had not instituted the present proceedings, it is clear that this concession would never have been made. It was not in fact made until the Committee were obliged to file their Statement of Grounds of Opposition to Mr. Callely’s proceedings.

  272. Having regard to the terms of the letter of 2 October 2008, in the course of which Mr. Callely’s attention was drawn by the Oireachtas Office to the Department of Finance definition of the statutory phrase “normal place of residence”, and in response to which he certified, in accordance with that definition, that Kilcrohane, Bantry was his normal place of residence, I do not see how the finding of misrepresentation against him can stand unless the Committee can succeed in their contention that the Department of Finance definition is erroneous and/or ultra vires, or they can succeed in the contention that they did not, in fact, make a finding of misrepresentation at all, if the Court has jurisdiction in the case. The Committee deny the Court has any jurisdiction.

  273. Even if the first of these contentions succeeds, it is difficult to see how finding that Senator Callely intentionally misrepresented his normal place of residence (para. (4) of the Committee’s finding) can survive the concession made for the first time in the Committee’s Statement of Opposition in this action.

  274. The Committee’s concession was repeated, and the Committee’s scene-shifting defence re-stated, at para. (4.2) of the Committee’s written submissions in the High Court as follows:

  275. The [Committee’s Members] acknowledge that, having regard to [Mr. Callely’s] evidence as to his use of his house in Kilcrohane, that house constituted a normal place of residence within the meaning of the Department of Finance ‘definition’. However, the Committee was not deciding whether the applicant’s claim came within the Department of Finance definition. Rather, the Committee was deciding whether the applicant had done a ‘specified act’ within the meaning of s.4(1)(a) of the Act of 2001.

    [emphasis added]

    This submission at first sight appears to dance on the head of a pin, and to be wholly artificial, not to say contrived.

  276. The finding of the Committee was that Mr. Callely “has done a specified act by misrepresenting his normal place of residence for the purpose of claiming allowances.” Therefore, the statement that “the Committee was not deciding whether his claim was within the Department of Finance definition but deciding whether he had done a specified act” (emphasis added) is merely a distinction without a difference. The specified act was, according to the Committee itself, committed “by misrepresenting his normal place of residence”. This allegation on the one hand, and the “specified act” on the other, are one and the same thing in the Committee’s own findings, in their own words. The distinction made in the pleadings is jesuitical in the worst sense of that term.

  277. I am unable to understand why, in their written submissions, the Committee refers to the Department of Finance “definition” with this last word in inverted commas. This usage plainly suggests that the Department’s statement is not a definition. But in the letter of 2 October 2008 the Members Services Office of the Oireachtas informed Mr. Callely, as set out above, that “the term ‘normal place of residence’ has been defined by the Department of Finance”.

  278. It is inescapable that the statement of the Department of Finance as to what constituted one’s “normal place of residence” was expressly represented to Mr. Callely as a definition. This fact cannot be glossed or reduced to insignificance simply by the placing of the word in inverted commas. The attempt to do so is perhaps significant in itself. Not merely was the Finance definition conveyed by the Oireachtas office to Mr. Callely; this was done in a letter seeking his certification that the house in Kilcrohane was his “normal place of residence for the time being” – the very phrase the Department had defined. This certification was sought “for absolute certainty”. The definition was proffered to him for this purpose, and “for ease of reference”.

  279. Summary of the competing claims

  280. Mr. Callely complains, in substance, that the Committee erred in failing to have regard to, or to apply, the Department of Finance definition of “normal place of residence”; in finding that he had misrepresented his normal place of residence without finding that his address in Kilcrohane, Bantry, was not his “normal place of residence” as defined; in taking irrelevant considerations into account; in ignoring his legitimate expectation arising from the express representations in the letter of 2 October 2008; in determining that he had misrepresented his place of residence intentionally and in determining that he did not act in good faith; and in acting in breach of fair procedures and of his legitimate expectations. In an apt colloquialism, he says the Committee moved the goalposts, which they themselves had already set up, in order to find against him.

  281. I have no doubt that these allegations are all correct. Mr. Callely was charged with misrepresenting his normal place of residence. That, and nothing else, was the “specified act” which he is alleged to have committed. That is perfectly clear from the Committee’s own words, quoted above. But it is now sought, very dishonestly in my view, to suggest that the “specified act” was something other than that which the Committee itself represented it to be. There is simply no foundation for this in evidence. It represents a blatant moving of the goalposts erected in the first place by the Committee itself.

  282. It is true that some observations of individual Committee members might be capable of the interpretation that those individuals regarded it as discredible of Mr. Callely to claim expenses from Kilcrohane even if that was his normal place of residence. But that was not the contravention alleged against him. It was quite open to the Committee, no doubt, to seek to amend the Statement of Contravention but they never did so. The Committee, which had ample legal advice available to it at all stages, and one of whose members was himself a Senior Counsel, must have been fully aware of the scope to do this but it was not done.

  283. A preliminary objection

  284. The Committee’s defence to these allegations has been outlined above in quotations from the Statement of Opposition and their written submissions. However, the Committee placed in the forefront of its submissions the proposition that even if Mr. Callely is correct in saying that he has not received the fair procedures required by natural and constitutional justice, the Court has no jurisdiction to do anything about this because Article 15.10 of the Constitution renders a decision such as that of the Committee in the present case non-justiciable. In other words, it is claimed that the Constitution itself puts Mr. Callely’s complaint outside the jurisdiction of the Courts. Even if this is not done in so many words, the Committee claim, the Court should not “limit its vision to the words only” of Article 15 but should take “a holistic approach” to its construction.

  285. The sole and exclusive foundation of this contention, Article 15.10 of the Constitution, is as follows:

  286. Each House shall make its own rules and standing orders, with power to attach penalties for their infringement, and shall have power to ensure freedom of debate, to protect its official documents and the private papers of its members, and to protect itself and its members against any person or persons interfering with, molesting or attempting to corrupt its members in the exercise of their duties.

    The relevance of this sub-Article to the present case is not at all on obvious to me. Mr. Callely is not alleged to have breached any “Rule or Standing Order” made by the Seanad and for which, alone, the Seanad may “attach penalties” in the event of proven infringement. This is manifest from the Committee’s own “Statement of Contravention”, and from its “findings and determinations” of the 14th July 2010. Neither these documents alleges or finds that Mr. Callely has breached any Rule or Standing Order. The only Rule or Standing Order referred to in argument was Standing Order 60. This Standing Order, which is set out elsewhere in this judgment does not lay down any rule or prohibition for which Mr. Callely might be penalised: it merely establishes the Committee itself. This Committee is not established for the purpose of investigating breaches of Rules or Standing Orders (even if there were any relevant to this case) but to conduct inquiries under the Act of 1995. It is, on other words, established for a purpose quite unrelated to the enforcement of any Rule or Standing Order or for the attachment of penalties for their breach. It is established for a single, statutory, purpose unrelated to the power of each House to make its own Rules and Standing Orders. The terms of Standing Order 90 are set out at para. 204 of this judgment. I can find nothing in that Standing Order to support the view that there is some sort of haven, quite outside the law and the Constitution of Ireland for politicians to make destructive findings in relation to other politicians.

  287. This sort of objection in limine (at the outset) to the jurisdiction of the Courts in relation to actions of the Oireachtas or either of its Houses, or Committees of the Houses, is not new. It was a major feature of Maguire v Ardagh, [2002] 1 I.R. 385 and, more recently, of Doherty v Government of Ireland [2011] 2 IR 222. The former case is much discussed below.

  288. The latter case related to a challenge by Mr. Doherty, himself a member of Seanad Eireann, to the Government’s action in voting down motions to “move the writ” for a by-election to fill a Dáil seat in Donegal which had been vacant for an unprecedented period. The State’s case in that instance was that for the Court to make a declaration on the matter would be (para. 63):

  289. ‘tearing asunder’ the provisions of the Constitution by adjudicating upon this application.

    because the Court had no jurisdiction in the matter.

  290. Despite this, the Court (Kearns P.) held that:

  291. Far from the Court ‘tearing asunder’ the provisions of the Constitution by adjudicating upon this application, it is the ongoing failure to move the writ for this by-election since June 2009 which offends the terms and spirit of the Constitution, and its framework for democratic representation.

    The Court held (ibid, para 44):

    It seems to me that there is ample precedent for concluding that decisions or omissions which affect or infringe citizens’ rights under the Constitution are prima facie justiciable. Thus in Ahern v Minister for Industry and Commerce (No. 2) [1991] 1 IR 462, a decision to put a civil servant on compulsory sick leave was held to be justiciable since it affected his right to work. Similarly, in MacPharthalain v Commissioners of Public Works [1992] 1 IR 111, the designation of certain lands as an area of scenic interest was held to give rise to a justiciable controversy as it affected the land owner’s rights to obtain certain types of grant.

    [emphasis supplied]

    And (ibid, para 50):

    I am satisfied that this is a justiciable controversy. It is not a controversy which relates to the internal workings of Dáil Eireann in relation to its own affairs; it is not a controversy in relation to external affairs or to any issue which might be characterised a socio-economic issue. Rather, this applicant’s case relates to the effects of delay on his right to be represented by the number of members laid down by law, and to the right to equality of political representation.

    The applicant says that the present case relates to his right to fair procedures grounded in constitutional justice. But the respondent says that the decision of the Committee is not amenable to challenge, even for the absence of natural and constitutional justice, because it is, even if only by implication, rendered non-justiciable by Article 15.10 of the Constitution. No reliance is placed on any other provision of the Constitution, or any other source of the alleged exclusion of the Courts jurisdiction.

  292. It is to this contention, based exclusively on Article 15.10, that I now turn.

  293. The Committee whose Order is challenged in the present case is a committee established pursuant to Statute (s.8(1) of the Ethics in Public Office Act 1995 as amended). It was established “to perform the functions conferred on it by this Act” which includes the holding of investigations such as the one conducted in this case. By virtue of s.8(1)(b) the relevant committee is known as “the Committee on Members Interests of Seanad Eireann”. It has no function other than that conferred by the Act of 1995. It is a one-purpose vehicle and that purpose is laid down in the 1995 Act.

  294. The actual establishment of the Committee was achieved by Standing Order 90 of the 2007 Standing Orders of the Seanad which provides:

  295. There shall stand established at the commencement of every Seanad, a Select Committee of Seanad Eireann which shall be called the Select Committee on Members Interests of Seanad Eireann, to perform the functions conferred on it by the Ethics in Public Office Act, 1995.

    [emphasis added]

    There is, therefore, no doubt that the Committee was established by Standing Order 90 in pursuance of the statutory imperative contained in the Act of 1995 to establish such a committee. However, the functions of the Committee are entirely referable to the Act of 1995 and do not therefore extend to the investigation of breaches of rules or standing orders. There is no doubt that the Seanad may make rules and standing orders, and “attach penalties for their infringement”. But there is nothing to support the view that this committee has been empowered to investigate such breaches, or that what is alleged against Mr. Callely is an infringement of rules or standing orders made by the House. No such rule or standing order has been referred to.

  296. By reason of the matters set out in the preceding paragraphs, it appears to me that the following dictum of Walsh J. in East Donegal Co-Operative Marts v Attorney General [1970] IR 317 is relevant:

  297. the presumption of constitutionality carries with not only the presumption that the constitutional interpretation or construction is the one intended by the Oireachtas but also that the Oireachtas intended that proceedings, procedures, discretions and adjudications which are permitted, provided for or prescribed by an Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice. In such a case any departure from those principles would be restrained and corrected by the Courts.

    [emphasis added]

    This passage was cited with approval by Ó Dálaigh C.J. in In re Haughey [1971] 1 IR 217.

  298. Both a Divisional Court of the High Court and this Court considered the question of justiciability in relation to complaints about the procedures of an Oireachtas Committee in Maguire v Ardagh [2002] 1 IR 385. There, too, the politicians who composed the Committee relied on the Article 15.10.

  299. At p. 424, the Divisional Court held:

  300. The claim of non-justiciablity is not supported by the express words of the Constitution itself.

    Notwithstanding the detailed provisions of the Articles of the Constitution dealing with the Oireachtas, nowhere is there immunity from review by this Court in the form in which it is propounded by the respondents. That is in stark contrast to other provisions of the Constitution which expressly so provide.

    At p.536, Keane C.J. recited the provisions of Articles 15.10, 15.12, and 15.13 of the Constitution and went on:

    These extensive immunities and privileges, denied to citizens who are not members of the Houses of the Oireachtas, are in important feature of the Parliamentary democracy established under the Constitution. Neither these provisions, however, nor any other provisions of the Constitution, expressly exempt from scrutiny by the Courts the actions of the Oireachtas or its individual members save to the extent specified in Article 15.12 and 15.13.

    [emphasis added]

    Enquiries which are either conducted by, or established by, the Oireachtas had become a significant feature of Irish public life at least since Haughey [1971]. Speaking of such enquires in Maguire v Ardagh, Keane C.J. said at p.538:

    An examination by the Courts of the manner in which such an inquiry is established in no way trespasses on the exclusive role of the Oireachtas in legislation. Nor does it in any way qualify or dilute the exclusive role of the Oireachtas in regulating its own affairs.

    Even if there were no authority to guide this Court on this issue I would be satisfied that, as a matter of principle, the Divisional Court was correct in holding that the issues were justiciable. The matter is, however, put beyond doubt in my view by the decision of this Court in In re Haughey.

    At an earlier stage of the justiciability issue in Maguire, Keane C.J. had said at p.533:

    In the High Court and again in this Court, the sub-committee challenged the jurisdiction of the High Court to grant relief of this nature on the ground that it dealt with matters which related exclusively to the functions of the Houses of the Oireachtas and under the Constitution were not justiciable by the Courts.

    It should be noted that it was not submitted on behalf of the sub-committee that the claim to non-justiciability extended to the compliance or otherwise by the Committee and the Compellability Committee with provisions of the Act of 1997. It was also accepted that the High Court was entitled to examine the procedures taken by the sub-committee with a view to ascertaining whether they complied with the requirements of natural justice and fair procedures, a concession inevitably made in the light of the decision of this Court in In re Haughey.

    [emphasis added]

    No attempt was made in this case to displace the authority of either Haughey or Maguire, either at the substantive hearing or at the resumed hearing of 22 October 2013. It has previously been suggested, at a preliminary hearing, that the Committee might ask the Court to review its decision in Maguire, but in the event it did not do so.

  301. From the above citations it appears that it was accepted in Maguire that the Court “was entitled to examine the procedures undertaken by the sub-committee with a view to ascertaining whether they complied with the requirements of natural justice and fair procedures”.

  302. Accordingly, it appears to me what is at issue here is the Committee’s attempt to qualify the statement just quoted, but insofar only as persons who are members of the Oireachtas are concerned.

  303. The case relates, in other words, to a claim to exclude the jurisdiction of the Court in relation to the fairness of the procedures of an Oireachtas Committee, when that jurisdiction is invoked by a member of the Oireachtas.

  304. It will be recalled that, in Maguire, that other Committee claimed, much more broadly than in this case, that the jurisdiction was ousted in the case of a complaint by a citizen who was not a member of either House as well, and that this arose from Article 15.10. The very vigorous, and strongly worded, arguments on this point by Mr. Alan Shatter are summarised in the judgment of McGuinness J. in Maguire.

  305. In the present case it was expressly conceded in response to a number of questions from the Court that it was not asserted by the Committee that the Court had no jurisdiction to entertain a “fair procedures” complaint by an ordinary citizen, a non-member of the Oireachtas.

  306. The real question on this issue, accordingly, is simply whether the status of Mr. Callely as a member of the Seanad at the relevant time is a proper ground to distinguish Maguire.

  307. In the present action, the entire basis of the Committee’s case as pleaded is Article 15.10. No attempt has been made to broaden this basis by the inclusion of other Articles, though an extensive argument has been directed to the effect of other Articles notably 15.12 and 15.13 on the construction of 15.10. No independent basis on which the Courts jurisdiction might be excluded was relied upon.

  308. The Divisional Court in Maguire quoted with approval the following passage from Gywnn Morgan, Separation of Powers in the Irish Constitution [1997] at p.224:

  309. Thus, the conclusion which one can draw, provisionally, is that where no legislation is involved, the Courts have no compunction about exercising jurisdiction to enforce the Constitution or other rules in regard to the affairs of the Dáil or Senate. In expressing this conclusion in the language of the Separation of Powers one should recall that, theoretically, as was explained above in Chapter III, separation might exist in respect of the (legislative) organ or of the (legislative) power. It appears from what has been said already, in Ireland, that it does not exist to protect the legislative organ, at any rate, when it was not exercising its legislative power.

    I entirely agree, and have indeed stated long prior to this, that there exists an area of Oireachtas activity in which the Courts will not intervene. It is, however, essential to be very clear as to what that area is. To my mind, it has been authoratively defined in the judgment of the Keane C.J. in Maguire v Ardagh at p.536ff under the heading “Conclusions”.

  310. There, Chief Justice Keane first set out in their entirety the provisions of Article 15.10, 15.12 and 15.13 of the Constitution. He then continued, in a passage already partially quoted above:

  311. These extensive immunities and privileges, denied to citizens who are not members of the Houses of the Oireachtas are an important feature of the Parliamentary democracy established under the Constitution. Neither these provisions, however, nor any other provisions of the Constitution expressly exempt from scrutiny by the Courts the action of the Oireachtas or its individual members save to the extent specified in Articles 15.12 and 15.13. That is not to say that the Courts will accept every invitation to interfere with the conduct by the Oireachtas of its own affairs: such an approach would not be consistent with the Separation of Powers enjoined by the Constitution. Specifically, the Courts have made it clear that they will not intervene in the manner in which the House exercises its jurisdiction under Article 15.10 to make its own rules and standing orders and to ensure freedom of debate, where the actions sought to be impugned do not affect the rights of citizens who are not members of the House: see the decision of this Court in Slattery v An Taoiseach [1993] 1 IR 286. It was held by the former Supreme Court in Wireless Dealers Association v Minister for Industry and Commerce (unreported, Supreme Court, 14th March, 1956) that the Courts could not intervene in the legislative function itself Nor, in general, will the Courts assume the role exclusively assigned to the Oireachtas in the raising of taxation and the distribution of public resources, as more recently made clear by this Court in T.D. v Minister for Education [2001] 4 IR 259.”

    In that passage, Chief Justice Keane was holding, in a passage central to this case, that neither Article 15 nor any other provision of the Constitution:

    Expressly exempt from scrutiny by the Courts the action of the Oireachtas or its individual members save to the extent specified in Article 15.12 and 15.13.

    [emphasis supplied]

    Nor do I believe that the Committee’s hearing in the present case is within matters “specifically” mentioned in the judgment of Chief Justice Keane:

    Specifically, the Courts have made it clear that they will not intervene in the manner in which the House exercises its jurisdiction under Article 15.10 to make its own rules and standing orders and to ensure freedom of debate.

    [emphasis added]

    In the present case the appellants contend for a broader reading of Article 15 and I will consider this later. But Chief Justice Keane has held, as a matter of law, what is at least implicit in the submissions of the Committee on this appeal: that the actions of the Oireachtas, its committees or individual members are not expressly exempt from scrutiny by the Courts except to the extent specified in 15.12 and 15.13.

  312. The narrowness with which the area of exemption is defined in the second paragraph of the extract above is in my view significant.

  313. In Howlin v Morris [2006] 2 IR 321, Article 15.10 was considered by me at p.364ff. One of the issues that arose was whether the power to protect “the private papers of its members”, conferred on each House by 15.10 was to be exercised by the House itself, or by the individual member or (as Mr. Howlin contended), by an outside body, to wit a court.

  314. On p.366 of the judgment I rejected the submission that a power which appeared on the face of it to be a power of the Oireachtas could be exercised by a court instead. I said:

  315. There is no precedent of which I am aware in which a court has actually exercised a power which the Constitution conferred on the Oireachtas or either House thereof. Indeed, this Court has several times declined to interfere in ‘the internal machinery of debate of the House’ because this ‘within the competence of Dáil Eireann to deal with exclusively having regard to Article 15.10 of the Constitution’ (see O’Malley v An Ceann Comhairle [1997] 1 IR 427, per O’Flaherty J. On the small numbers of occasions when the Courts have been prepared to supervise the orders or procedures of an Oireachtas body, it has been at the suit of non-members whose rights were affected: see In re Haughey [1971] IR 217 and Maguire v Ardagh [2002] 1 IR 385. This is a vital distinction as Keane C.J. said in the latter case at p.538:

    Different considerations apply however where, as here, the Oireachtas purports to establish a committee empowered to enquire and make findings on matters which may unarguably affect the good name and reputation of citizens who are not members of either House. An examination by the Courts of the manner in which such an inquiry is established in no way trespasses on the exclusive role of the Oireachtas in legislation. Nor does it in any way qualify or dilute the exclusive role of the Oireachtas in regulating its own affairs.

    Moreover such intervention has always been made by review of a decision already made: in no case has a court assumed to itself the power to make a decision where that function is conferred on the Oireachtas.

    It therefore seems to me that the decision of whether to grant immunity from otherwise lawful disclosure in respect of what are claimed to be the private papers of a member, or to refrain from doing so, is that of Dáil Eireann itself or its lawful delegate. If such decision does not affect the rights of anyone who is not a member of Dáil Eireann, that decision appears to be final and unreviewable. Furthermore the decision is one for the exercise of the discretion of the House. The view of the individual deputy involved does not bind the House.

    I would not in any way resile from what I said in Howlin. It is for the Oireachtas, and the Oireachtas only, to decide whether to extend protection to the private papers of a member. But that is not the function for which the Oireachtas is in this case claiming non-justiciability on the basis of Article 15.10.

  316. I am unconvinced that Article 15.10 of the Constitution extends to a hearing of the sort in question here which makes adverse findings grossly destructive of a Senator’s reputation, on the basis of a factual finding that he, in the words of the Statement of Contravention, had “misrepresented his normal place of residence” which misrepresentation was then held to be a “specified act”.

  317. Article 15.10 is introduced by the phrase:

  318. Each House shall make its own rules and standing orders, with power to attach penalties for their infringement”.

    There is no reason whatever to conclude that this case relates to an alleged breach of rules or standing orders made by the Seanad as envisaged by Article 15.10. On the contrary, the Committee is a creature of statute established to perform statutory functions which are laid down in the Act of 1995 as amended, and are unrelated to Rules and Standing Orders. The fact that the Committee itself is established by Standing Order does not affect this. There is no Standing Order or rules a breach of which is alleged.

  319. In the Committee’s submissions for the resumed hearing of this case in October 2013, they contended for a broad, rather than a literal interpretation of Article 15.10. Thus, in para. 7 it is said:

  320. It would be incorrect to interpret the specific provisions of Article 15 as comprising a complete recitation of the ingredients of the legislative power.

    and contends for an analysis “on the basis of considerations extending beyond the precise words of Article 15”.

  321. I could not more strongly disagree. That is a proposal to set up Mr. Callely and destroy him, on the basis of ex post facto law, or an ex post facto interpretation of the law, unavailable to anyone at the time of the alleged breach. It would be a gross injustice.

  322. The precise nature of this broader analysis is described in the following paragraphs as “a holistic approach”, which it is contended follows from “the need for a harmonious approach to constitutional interpretation. It is said that the Courts should not “limit their vision [sic] to the words only of Article 15 when attempting to articulate the nature and scope of the legislative power” because to do so would “fail to have regard to the need to understand the Constitution in its historical and comparative context”.

  323. It is because of words such as those just quoted that I conclude that it is necessarily implicit in the respondent’s submission that, on a literal construction, the words of Article 15.10 do not contain the exclusion of justiciability for which they contend.

  324. As stated above, there is clearly some area of exclusion of justiciability. The authorities seem to me to define this sufficiently.

  325. In O’Malley v An Ceann Comhairle a Dáil Deputy had a parliamentary question he had put down altered by the Ceann Comhairle, which he alleged was contrary to Standing Order 33. Some years later, having lost his seat in the meantime, he sought judicial review of the Ceann Comhairle’s action in altering his question. He failed to get leave to seek judicial review. O’Flaherty J., giving the judgment of the Court with which Murphy and Lynch JJ agreed expressed it in words which are suggestive of the true area of inviolability:

  326. How questions should be framed for answer by Ministers of the Government is so much a matter concerning the internal working of Dáil Eireann that it would seem to be inappropriate for the Court to intervene except in some very extreme circumstances which it is impossible to envisage at the moment. But, further, it involves to such a degree the operation of the internal machinery of debate in the House as to remain within the competence of Dáil Eireann to deal with exclusively, having regard to Article 15.10 of the Constitution.

    This distinction, between the regulation of actual debate in the House, which is an essential part of the legislative process, on the one hand, and the conduct of a statutory inquiry into a member’s claim for expenses provided under statutory power on the other, seems to mirror the distinction drawn by Professor Gwynn Morgan and quoted earlier in this judgment. It may reflect also the Professor’s distinction between the legislative organ (i.e. the Oireachtas) on the one hand and the legislative power on the other. The former, exclusively, is empowered to legislate but it is not always exercising a legislative power. When is not doing so, its findings and penalties recommended by it, are reviewable.

  327. The O’Malley case was considered by this Court in Curtin v Dáil Eireann [2006] I.R. 556. At 627 it was observed that:

  328. The obiter dictum of O’Flaherty J. in O’Malley v An Ceann Comhairle [1997] 1 I.R. 427 suggests that the Courts would not, in a clear case, permit even the Oireachtas to default on its constitutional obligation.

    A major part of the argument on this appeal has focussed on the fact that Article 15.12 and 15.13 provide absolutely specific privileges. The former provides that;

    All official reports and publications of the Oireachtas or of either House thereof and utterances made in either House wherever published shall be privileged.

    The latter provides:

    The member of each House of the Oireachtas shall, except in case of treason as defined in this Constitution, felony or breach of the peace, be privileged from arrest in going to and returning from and while within the precincts of either House and shall not, in respect of any utterance in either House be amenable to any court or any authority other than the House itself.

    Some of the issues canvassed about these provisions are not immediately relevant to the question of justiciability. Thus, the Committee raises a question as to the meaning of the word “privilege” and say that it is broader than the connotation of that word in the law of Defamation. But this does not arise at present: it is beyond doubt that Article 15.12 expressly provides some privilege in express terms for official reports and publications of the Oireachtas. It is equally beyond doubt that Article 15.13 provides that a member “shall not, in respect of any utterance in either House, be amenable to any court or any authority other than the House itself”. See also the express exclusionary words of Art. 45: “shall not be cognisable in any Court under any of the provisions of the Constitution”.

  329. The point that is immediately relevant is that these Articles provide examples of the express constitutional creation of an area of privilege which, at least in the two latter cases, amounts to non-justiciability of the issue before any court. Nothing of this kind is provided, at least expressly, in Article 15.10 – that is the reason why the appellants are constrained to contend for a construction of that Article that goes beyond its mere express words.

  330. One of the canons of construction of legal documents for centuries has been expressio unius exclusio alterius. In Mr. Bennion’s classic work on “Statutory Interpretation”, a work of canonical status consisting of a code of statutory interpretation with extensive commentary, he introduces this topic at s.391 of the Code, headed “Expressio Unius Principle: words of designation”. The text under this heading is “The principle expressio unius exclusio alterius applies where some only of a possible series of substantive or other items are expressly designated”.

  331. At s.392 of Bennion’s Code he says:

  332. Where an Act sets out specific remedies, penalties or procedures it is presumed that other remedies, penalties or procedures that might have been applicable are by implication excluded.

    [emphasis added]

    I consider this canon of construction very suggestive of the correct interpretation of 15.10.

  333. We are dealing here with the contention that the jurisdiction of the High Court at the suit of a person who is a member of Seanad Eireann is ousted or excluded by virtue of the provisions of 15.10.

  334. This is a conclusion we should be slow to come to because, as Henchy J. put it in Tormey v Ireland [1985] I IR 289:

  335. Save to the extent required by the terms of the Constitution itself, no justiciable matter or question may be excluded from the range of the original jurisdiction of the High Court.

    It appears to me that this express invocation of “the terms of the Constitution itself” is quite inconsistent with an exclusion of the Courts jurisdiction by implication, as claimed by the Committee.

  336. And, according to the same Judge in The State (Pine Valley) v Dublin County Council [1986] 1 IR 407:

  337. the Courts should be reluctant to surrender their inherent rights to enter on a question of the validity of what are prima facie justiciable matters”.

    For the reasons set out above I believe the issues raised by Mr. Callely are “prima facie justiciable matters”.

  338. I repeat, Article 15.10 of the Constitution is the only basis on which it is contended that the jurisdiction is ousted.

  339. It cannot be contended, that Article 15.10 excludes this jurisdiction expressly. The Committee itself does not claim this.

  340. I believe that strong and unambiguous language is needed to oust the prima facie jurisdiction of the High Court, which the Courts should be reluctant to see ousted.

  341. Even apart from any rule or canon of construction I cannot see why the drafters of the Constitution, if they had intended to exclude the jurisdiction of the Courts on matters within the remit of Article 15.10, would not have used something along the lines of the strong form of words which constitute the last phrase of Article 15.13, and which were clearly in their minds as Article 15 was drafted.

  342. Separate and apart from all of the foregoing, I believe that the Committee is a creature of statute performing a statutory function and no other and is therefore within the words of Walsh J. in East Donegal. I do not believe that the terms of Standing Order 60 of the Seanad, which constitute the Committee as a standing committee but equally relate its functions expressly and exclusively to the statute, in any way change that position.

  343. I would hold that the Court has ample jurisdiction to entertain and adjudicate upon Mr. Callely’s complaints.

  344. The fact that the Houses of the Oireachtas must have complete freedom, and immunity from judicial scrutiny, in the conduct of their legislative function does not mean that the politicians who compose it can establish for themselves an area of immunity, quite outside the restraint of the law or even the Constitution. The Constitution would be subverted if the legislators could, by conferring a particular function on an Oireachtas Committee, create total immunity in the discharge of an adjudicative function. There is no comparative support either, in the law of countries similar to ours, for the view that fundamental rights can be rendered incapable of assertion in court simply because the adjudicating body is a parliamentary Committee. The constitutional and political structures of the United States were a major influence in the drafting of the Constitution of Ireland. The provision of the United States Constitution corresponding to Article 15.10 is Article 1.5 which provides “each House to determine the rules of its proceedings”. In U.S. v Ballin 144 US 1, the Supreme Court of the United States said:

  345. The Constitution empowers each House to determine its own rules of proceedings. It may not by its Rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by a Rule and the result which is sought to be attained. But within these limitations all matters of method are open to the determination of the House, and it is no impeachment of the Rule to say that some other way would be better, more accurate, or even more just.

    [emphasis added]

    Separation of Powers.

  346. I have stressed several times in this judgment, and take this opportunity to do so again, that the whole of the Committee’s defence is an interpretation of Article 15.10 of the Constitution. No other defence has been adumbrated, pleaded, or even mentioned, and none is before the Court.

  347. Notwithstanding this strict limitation on the defence of the Committee, it is fair to say that, in presenting this strictly defined defence, counsel for the Committee has several times gestured towards the separation of powers. I use this vague term for the following reasons:

  348. (a)

    No direct reliance was placed on it and

    (b)

    No Irish authority was cited suggesting that every function of an Oireachtas body (and not merely the purely legislative or financial functions, but the adjudication on a formal accusation against an individual as well) was rendered strictly immune by any established immunity of the legislative organ.

    But it is fair to say, that, for example, in urging that the Court should not limit itself to the “mere” words of Article 15.10, but should go beyond them in a “holistic” fashion, counsel for the Committee was hoping, at least, that a broader meaning might be found by reference to the separation of powers.

  349. In the first place, I do not consider that an immunity from suit for breach of natural justice can be grounded on so vague an argument. Authority has been cited above on the necessity to find such immunity “in the terms of the Constitution itself”, as opposed to any less specific source. In the second place, this Court has in the fairly recent past strongly upheld the immunity of the legislative power within its legitimate bounds, which are the legislative function itself, the tax raising and appropriation function, and the regulation of debate in the Houses of the Oireachtas. See, for example, Sinnott v Minister for Education [2001] 2 I.R. 545 and T.D. v Minister for Education [2001] 4 I.R. 259. It will, therefore, be clear that it is not any aversion to the unfettered and uncontrolled power of Seanad Eireann in its legislative capacity that leads me to say that there is no immunity from judicial scrutiny for any want of fair procedures, and want of natural justice. This is most likely to be claimed against the Seanad in its capacity, through a committee, of a adjudicating upon specific complaints brought against a citizen who is a member of Seanad Eireann.

  350. The central constitutional value arising in the present proceedings is not a separation of powers, important and fundamental as that is in our constitutional dispensation, but the rule of law, the principle of legality itself. The Oireachtas itself, in enacting the Act of 1995, has called into being an adjudicative role and has specifically required that this role be carried out by a committee of the House. This is a very significant decision: it creates an adjudicative role over a person who was a member of Seanad Eireann, and entrusts this role to a committee of politicians. It did this not withstanding that “some members” of a particular committee of politicians “have a tendency to prejudge matters that the Committee is considering”. This was stated as recently as 27 January 2014 by a Minister who has long been a member of the Oireachtas. He was speaking of another current committee of politicians. The Minister knows whereof he speaks. If, in addition to this, it were to be found that any committee of the Dáil, committee of the Seanad, or Joint Committee possessed absolute immunity from suit, even for bias, even for the grossest unfairness towards a person within its jurisdiction, the Constitution would be gravely undermined.

  351. I would reject as strongly as I possibly can the desperate and contrived plea that the Superior Courts of Ireland have no jurisdiction in the case where an allegedly most grave injustice is challenged, simply because the alleged injustice was inflicted by An Oireachtas Committee upon an Oireachtas colleague.

  352. Conclusion on the justiciability issue.

  353. I would hold that the High Court, and this Court on Appeal, has ample jurisdiction to entertain Mr. Callely’s complaints.

  354. The merits of the case.

  355. Having concluded, for the reasons set out above, that the Court enjoys the jurisdiction to adjudicate on the case brought by Mr. Callely, I now turn to the merits of that case.

  356. I have had the opportunity of reading in draft the judgment about to be delivered by Mr. Justice McKechnie. I entirely agree with the manner in which he adjudicates upon the merits of the case and it follows, of course, that I would dismiss the appeal and uphold the order of the learned trial judge.

  357. I consider, indeed, that the invalidity of the Committee’s finding against Mr. Callely is proved to demonstration from their own words. It is most unusual in law that any disputed proposition can be proved to demonstration, which is why lesser burdens of proof (whether the lower one of proof on the balance of probabilities or the higher standard of proof beyond reasonable doubt) are applied in civil and criminal proceedings respectively. Even the higher of these, proof beyond reasonable doubt, falls a long way short of logical or mathematical certainty of the sort referred to by Euclid when he ended his demonstrations of various propositions with the confident words “Quad erat demonstrandum” (QED)

  358. In the present case Mr. Callely was served with a “Statement of Contravention”. This was not an informal document but a statutory document required by s.32(6)(b) of the Act of 1995. It is analysed at paras. 184 to 191 above. For present purposes I need only quote the Committee’s own words in relation to the complaints against Mr. Callely:

  359. The two complaints related to allegations that Senator Ivor Callely misrepresented his normal place of residence for the purpose of making claims for allowances.

    [emphasis added]

    The finding of the Committee against Mr. Callely is set out at para. 159 above. For present purposes it is necessary to quote only the first section of para. 1 of the findings which is as follows:

    The Committee determines that Senator Ivor Callely has done a specified act, as contemplated by s.4 of the Act of 2001, by misrepresenting his normal place of residence for purpose of claiming allowances.

    [emphasis added]

    As we have seen, after the present proceedings were instituted the Committee made two concessions, the first in its “Grounds of Opposition” and the second in its written submissions. Since they play a central role in my fundamental approach to the merits of Mr. Callely’s complaint, I set them out here again. The first is:

    For the avoidance of doubt the [Committee] acknowledges that [Mr. Callely’s] claim for expenses came within the scope of the interpretation given by the Department of Finance.

    This concession is taken from the Committee’s Grounds of Opposition, their formal pleading in this case.

  360. In written submissions, a further concession was made by the Committee:

  361. The [Committee’s members] acknowledge that, having regard to [Mr. Callely’s] evidence as to the use of his house in Kilcrohane, that house constituted a normal place of residence within the meaning of the Department of Finance’s ‘definition’.

    [emphasis added]

    The most fundamental ground of my decision is this: those concessions, not made by the Committee until they had to respond to Mr. Callely’s legal proceedings, are absolutely inconsistent, in terms of law, in terms of logic, and in terms of language, with the finding the Committee has made against him. Accordingly, that finding cannot stand.

  362. In reaching that conclusion, it is quite unnecessary to come to any view as to whether the Department of Finance’s definition of “normal place of residence” is, or is not, correct. The salient fact about that definition is that it was the only definition tendered to Mr. Callely by the Members Services Office of the Oireachtas on 2 October, 2008, when asking him “for the avoidance of doubt and for absolute certainty for factual and audit purposes [to] certify in writing that this house in Bantry was your ‘normal place of residence for the time being’ for the period of the claim”.

  363. The office had pointed out to him that:

  364. This [i.e. the phrase ‘normal place of residence for the time being’] is the statutory provision used in s.4(1)(c) of the Oireachtas (Allowances to Members) Act, 1938, for the payment of such expenses.

    This letter, in every significant respect, is set out above at paras. 171 to 173, above.

  365. It went on to draw his attention to the fact that “normal place of residence” had been defined by the Department of Finance in the manner set out above at para. 172.

  366. Moreover, it is quite clear (see para. 178) that Mr. Callely in his response of the same date adopted the statutory phrase and the Department of Finance definition of it.

  367. Accordingly, prior to the letter of 2 October, 2008 Mr. Callely had represented that the house in Kilcrohane, Bantry was “my current place of residence”. When the Offices of the Oireachtas drew his attention to the fact that the statutory phrase was “normal place of residence for the time being” and not the slightly different form of words he had used above, he represented that the house in Kilcrohane, Bantry, was also his “normal place of residence for the time being”. It is now positively conceded, though it found no place in the original findings of the Committee, that:

  368. that house [i.e. the house in Kilcrohane, Bantry] constituted a normal place of residence within the meaning of the Department of Finance’s ‘definition’.

    It was also conceded that:

    the applicant’s claim for expenses came within the scope of the interpretation given by the Department of Finance.

    This is absolutely inconsistent with the finding, set out at para. 191 above, and given on the 14th July, 2010, that Mr. Callely had “done a specified act by misrepresenting his normal place of residence for the purpose of claiming allowances”.

  369. If any ordinary citizen were dismissed from his or her employment on the same basis that the Committee found against Mr. Callely, such dismissal would be absolutely invalid.

  370. The Committee’s response

  371. As presented on appeal, the Committee’s response to this enormously strong contention of Mr. Callely’s was that:

  372. The Committee was not deciding whether the applicant’s claim came within the Department of Finance definition. Rather, the Committee was deciding whether the applicant had done a specified act within the meaning of s.4(1)(a) of the Act of 2001”.

    I have, I believe, disposed of this extraordinary claim at para. 191 above. This can be briefly summarised:

    The “specified act” to which the Committee refers was, according to the Committee itself committed ‘by misrepresenting his normal place of residence’.

    The Committee itself made this equation, both in its statement of contravention and in its findings. It is too late to retreat from it now and the attempt to do so is merely an attempt to create confusion to set up a distinction without a difference. It is a classic example of moving the goalposts.

  373. In oral argument, perhaps realising the difficulties summarised above, counsel for the Committee put the matter somewhat differently:

  374. even if Mr. Callely was technically entitled, because of the way in which the 1938 Act and the Regulations were drafted, to claim travel and subsistence expenses based on his normal place of residence being in Cork, the fact that he actually claimed expenses on that basis was the type of act which was inconsistent with a proper performance of his office and the maintenance of public confidence in it.

    [emphasis added]

  375. Contrary to counsel’s submission, if Mr. Callely were “entitled, because of the way in which the 1938 Act and the Regulations were drafted, to claim expenses based on his normal place of residence being in Cork”, he cannot be guilty of the contravention alleged. He did not write the Act or the Regulations. But he is bound by them and he is entitled to rely on them.

  376. In advancing the fallback submission, just quoted, counsel was saying, or alleging, that Mr. Callely could have been found to have committed some other breach of his statutory duty. But the argument just summarised does not even attempt to support the finding against Mr. Callely (the only one that there is) based on the proposition that he had mis-represented his normal place of residence.

  377. The argument just summarised is dismissed with reasons in para. 185, above. I wish to express my agreement with the discussion of the contravention alleged, and the “specified act”, contained at paras. 46, 47, 48 and 49 of the judgment of Mr. Justice McKechnie. In particular, I wish to recall his setting out of the evidence of Mr. Dignam to the Committee, to the effect that:

  378. The working definition for the purposes of allowances was that issued by the Department of Finance in 1994 which still applied in 2008. He also confirmed that such was communicated to the applicant and applied by him. Despite an extensive search I cannot find any suggestion, made by any member of the Committee during the course of the investigation, which could cast doubt on the applicability of this definition, much less that such should be entirely disregarded.

    I am astonished that the Committee have sought to stand over their finding against Mr. Callely that he “misrepresented his normal place of residence for the purpose of claiming expenses”, They have done this in the teeth of their own very late admissions that “his claim for expenses came within the scope of the interpretation given by the Department of Finance”. Their finding is quite inconsistent with their subsequent admission that the Kilcrohane House “constituted a normal place of residence within the meaning of the Department of Finance definition”.

  379. The Committee have not even purported to find that Kilcrohane was not, at the relevant time, Mr. Callely’s normal place of residence.

  380. I would dismiss the appeal and uphold the finding of the learned trial judge.

    Justice William M. McKechnie

  381. Introduction:

  382. But for the fact that Mr. Callely (or “the applicant” or “the Senator”) was a member of Seanad Éireann at the time, the essential issue in this case would not even have arisen, much less have the significance which the respondents (“the respondents”), including Seanad Éireann, maintain. By reason of his membership of that House of the Oireachtas (“the House”), it is said that the High Court could not, and thus on appeal this Court cannot, exercise the very functions for which the courts exist, namely, in a case such as this, the vindication of core constitutional rights, such as the right to one’s good name, the right to earn a livelihood and – as part of a process which is claimed to have irreparably eroded such rights – the right to fair procedures. In short, the Superior Courts must stand aside even if otherwise satisfied that what is asserted would justify their intervention. Such an outcome, surprising as it must be to a great number, is said to be mandated by the Constitution of Ireland, 1937 itself (“the Constitution” or “the 1937 Constitution”), so as to give due recognition to the legislative power, when exercising a sub-set of that power, namely parliamentary privilege. In essence it is essential to and demanded by the separation of powers.

  383. The rights which are involved in this case are at the highest level of our constitutional order, not only from the viewpoint of the administration of justice but also from the perspective of the very Constitution itself. Thus, any mandatory disablement of the judicial system of government solely because of his Oireachtas position, is a matter of grave significance which each member of the public will have a great interest in. It will therefore be necessary to inform them in the clearest manner possible if this is so.

  384. However, having stated thus, it must immediately be added that if this submission is correct, the Court can have no discretion over what it should decide: it must respect what is exclusively within the remit of the legislative branch and must accord to that branch, due recognition of its true role.

  385. All of these matters arise out of an allegation that the applicant misrepresented his place of residence for the purposes of obtaining travel expenses and overnight allowances, in respect of his attendance at the House between August, 2007 and March, 2010. On complaint being made by two members of the public, the eight named respondent, the Committee on Members’ Interests of Seanad Éireann (“the CMI” or “the Committee”) conducted an investigation into the matter and published a highly condemnatory and extremely critical report (the “Report”) of the applicant’s behaviour. On the same day, namely the 14th July, 2010, Seanad Éireann passed a resolution (the “Resolution”) adopting the Report and the sanctions suggested by the Committee, which included censuring the Senator and suspending him from service, without salary, for a period of twenty sitting days.

  386. Whilst this is a skeleton version of the background, and whilst the formal allegation was couched so as to reflect the wording of s. 4, of the Standards in Public Office Act 2001 (“the 2001 Act”), the above is in essence the factual matrix of this matter.

  387. Arising out of the actions of both the Committee and Seanad Éireann, the applicant successfully obtained leave to seek judicial review and at the substantive hearing obtained from the High Court an order, quashing both the Report and the Resolution. Judgment to that effect was given on the 14th January, 2011. Having served a notice of appeal, the respondents’ principle argument is that the issue in question is not “justiciable” before the courts. They make this submission on two grounds, the first of which they say, is by far the most important one: they claim that the Constitution prevents the courts’ intervention by reason of the doctrine of the separation of powers and secondly that any adjudication on a breach of s. 4 of the 2001 Act (“a s. 4 breach”), is a matter of political judgment; thus as there exists no legally recognised standard of review, the same is not reviewable by the courts. They also deny that there was any breach of fair procedures as well as make a number of other subsidiary points.

  388. I can readily understand why the respondents say that these are serious matters. However, as I listened intently to the argument I could not help but think that they were considered serious only from their point of view. The position of the applicant was very much lost in the debate. Such cannot be the case, particularly where the Court is being asked to step back from even considering the issues raised, which have at their core, key constitutional rights.

  389. The structure of what I propose to write on these issues is loosely as follows. In the first part of this judgment (“Part A”) I will deal with the justiciability issue considering firstly the separation of powers point and secondly the political standards point. In the second part (“Part B”) I will address the substance of the judicial review application. In both parts I have referred interchangeably to “Mr. Callely”, “the applicant” and “the Senator”, and have referred to the respondents, individually when necessary, and collectively as “the respondents”.

    PART A

    Background:

  390. Having been a member of Dáil Éireann for 18 years, representing the constituency of Dublin North Central, as it was at the time, the applicant lost his seat in the general election of May, 2007. In August of that year he was one of An Taoiseach’s nominees to Seanad Éireann. Nothing turns on nomination as distinct from election. Whilst a member of Dáil Éireann he maintained both his family home, in which he resided, and his constituency office in North Dublin. He also had a second home in West Cork, since 1992, which originally was a holiday home. His letter of nomination was sent to his West Cork address.

  391. As a member of Seanad Éireann he was entitled to claim expenses in travelling from his “normal place of residence for the time being”, to the House when in session. Such entitlement was provided for by s. 4(1)(c), of the Oireachtas (Allowances to Members) Act 1938 (“the 1938 Act”). Pursuant to regulations made in respect thereof (Oireachtas (Allowances to Members) (Travelling Facilities and Overnight Allowances) Regulations 1998 (S.I. 101 of 1998) (the “1998 Regulations” or the “Regulations”)), a distinction was made between those members whose normal place of residence was within and those beyond a 15 mile radius of where the Seanad sits (“Leinster House”). Those within this distance had no choice of allowance: they received a daily figure of about €62 at the time. Those who had to travel further had an option to either proceed in that way, or in the alternative, to get a travel and overnight allowance, which apparently in the applicant’s case, had a value of about €139 per night.

  392. In December, 2007, Mr. Callely made his first claim, being one based on travel and subsistence, for attending at Leinster House, for the period 3rd August, 2007 to the 3rd November, 2007, stating in the process that his “current principle residence” had changed, and was now in West Cork. Further claims on this basis were made for the remainder of that year, for the first eight months of 2008, for the first nine months of 2009, and finally for the period of the 1st January, 2010 to the 28th February, 2010. Many of the claims were submitted at different time intervals and for different parts of the overall periods, which I have outlined.

  393. On the 22nd December, 2009, he sent to Members’ Services, the relevant office of Seanad Éireann dealing with expenses, a form to cover the last four months of 2008, submitting a “nil” claim for this period. He submitted a like form for the period 3rd October, 2009, to 31st December, 2009, and finally, in April, 2010 he returned a cheque which represented his March, 2010 expenses. Such steps were said by the applicant to have been taken in furtherance of an “.... anxious[ness] .... that [his] claim[s] should reflect [his] actual travel ....”

  394. The claims as made were interspersed with correspondence which passed between Mr. Callely and Members’ Services. On the 2nd October, 2008, that office asked Mr. Callely to certify in writing that West Cork was his “normal place of residence for the time being”. That was the precise phrase used in s. 4 of the 1938 Act, whereas the applicant, in the first claim submitted, had referred to West Cork as being his “current principal residence”. The letter, for “ease of reference”, went on to say that the Department of Finance (or “the Department”) had previously defined (in 1994), the s. 4 phrase thus:

    [W]hat is involved is a premises which, though not necessarily one’s permanent and principal abode, is used for a period which is both of some length and for a purpose which is not ad hoc and goes beyond mere shelter in passage such as a few nights in a hotel” (“the Department’s definition”).

    By reply of the same day, he confirmed that West Cork was his place of residence as falling within this definition.

  395. Sometime in June, 2009 the applicant, because of a continuing concern that his expenses would reflect his “evolving circumstances”, enquired about changing the basis of his claim to a daily allowance. On the 2nd July, the office pointed out that under the Regulations a member could opt “once and only once”, within a calendar year as to the basis upon which he wished to claim expenses. As Mr. Callely, had in November, 2008 declared his position for 2009, he was therefore bound to stay with travel and overnight allowance, for that year.

  396. On the 7th October, 2009, the applicant contacted Members’ Services, again expressing concern that his claims should reflect his actual travel and to that end, pointed out that he had made no recent claim. The reply of the 15th October, 2009, referred once more to the Regulations, but offered to make a special plea to the Minister if Mr. Callely so wished. On the 16th December, 2009, the applicant further communicated with the office, stating that in order to best reflect his particular situation, he would not make a claim for the last four months of 2008. On the same basis he likewise did not claim for October to December, 2009, and as stated above, returned a cheque in April, 2010, in the sum of €3987.50, which he had received in respect of his March, 2010 allowances.

    The Sunday Independent and the Complaints:

  397. In its edition of the 30th May, 2010, the Sunday Independent newspaper published an article under the heading “Callely got €80,000 mileage from Cork Ex-Dublin TD has Bantry address”. This provoked complaints from two members of the public. On the 31st May, 2010 a Mr. John Mulligan wrote to the Clerk of Seanad Éireann, and having referred to the article made a formal complaint “under [s.] 8 of the Ethics in Public Office Bill 1995 [sic] in respect of Senator Callely’s expenses claims”. A few days later the second complaint, this time from a Mr. Patrick Hurley was received. On this occasion the complaint was lodged under s. 8 of the Ethics in Public Office Act 1995 as amended (“the 1995 Act”) and in essence alleged that, by specifying his Cork address, Mr. Callely had falsified his claims for expenses.

  398. Treating both matters as serious, the Clerk of the House, a Ms. Lane, on the 2nd or 3rd June, 2010, referred these complaints to the eight named respondent for its consideration. Being satisfied that there was sufficient evidence to warrant an inquiry, the Committee decided to investigate.

    The Investigation:

  399. Section 8(1), of the 1995 Act, requires each House of the Oireachtas to establish, after the commencement of the section and thereafter following each general election, a select committee, to be known as a Committee on Members’ Interests, to perform the functions conferred on it by that Act. Amongst these is a power to investigate complaints such as those made in this case. The Committee was comprised of the first seven named respondents, each of whom was a member of Seanad Éireann at the time. As required by the Act, the CMI served on Mr. Callely, a statement of contravention “of this Act alleged” (s. 32(6)(b) of the 1995 Act). Having interpreted the complaints received as alleging that the Senator had misrepresented his normal place of residence for the purposes of obtaining expenses, the operative part of the contravention statement continued:

    .... The allegations are such that they may give rise to a contravention under the Acts if it is determined that the act or omission complained of, or the circumstances of which, is a specified act (within the meaning of section 4 of the Standards in Public Office Act 2001) and is determined to be inconsistent with the proper performance by a member of the functions of the office of member or with the maintenance of confidence in such performance by the general public and the matter is one of significant public importance.

    By return, the applicant submitted a statement in full exoneration of his position. In it he referred to most of the correspondence above noted and asserted compliance with the definition, of “normal place of residence”, as provided to him by the office of Members’ Interests.

  400. The Committee thereafter met on several occasions, often in private, but on three occasions in public. There were two witnesses; a Mr. Derek Dignam, Principal Officer of Members’ Services, and Mr. Callely himself. On the 14th July, 2010, its Report was published. In summary, it found that the applicant had committed a “specified act .... by misrepresenting his normal place of residence” (para. 201 infra), and in the process had also breached s. 4 of the 2001 Act. In its view this breach was continuing, was committed intentionally and was not done in good faith: accordingly it should be regarded as being both serious and grave. “[O]n balance”, the Committee concluded that the weight of the evidence “link[ed]” Mr. Callely to his Dublin home rather than to his house in West Cork (p. 8 of the Report). It proposed a series of sanctions.

  401. This Report was sent to Seanad Éireann as required by law. The Committee, as empowered to do so under s. 28 of the 1995 Act, caused a motion to be moved before the Seanad on the same day, seeking the approval of the House to implement the suggested sanctions. Such Resolution was passed and as a result the applicant was censured and suspended from service without pay for a period of 20 sitting days.

    Grounds Pleaded for Judicial Review:

  402. By means of an amended statement dated the 7th September, 2010, the applicant, who grounded his application for judicial review on the background circumstances outlined above, claimed that:

    1. the procedures, investigations, reports and actions provided for in the 1995/2001 Acts, and any Seanad resolution passed on foot of same, must be conducted in accordance with the Constitution, including the provisions of Articles 40.1, 40.3.1 and 40.3.2 and must have due regard to the principles of constitutional justice and fair procedures;

    2. the Report and the resulting Resolution are ultra vires and/or unlawful and/or irrational, as the respondents erred in law and/or failed to have regard to relevant considerations and/or had regard to irrelevant considerations;

    3. the investigation by the CMI, its Report and the Resolution of the House were carried out, made and passed in breach of fair procedures and the applicant’s legitimate expectations.

  403. He patdticularised, in relation to assertions (i) and (ii) as regards “normal place of residence”, inter alia that the respondents:

    1. failed to have regard to and/or to apply the Department’s definition but instead, in error, applied a test of whether the facts “linked” the applicant to his Clontarf address rather than to his Cork address;

    2. erred in determining that he had misrepresented same without making a finding that the Cork residence did not comply with the Department’s definition;

    3. failed to have regard to the applicant’s legitimate expectations arising out of, inter alia, the express representation that that definition, as provided to him by Members’ Services, was reliable and could be acted upon.

  404. In regards to assertion (iii), he specified inter alia that:

    1. a reasonable person in the circumstances would reasonably apprehend that he was denied a fair hearing;

    2. statements made at the hearing by the sixth and seventh named respondents gave rise to a real risk and/or perception of actual or objective bias;

    3. the respondents failed to have regard to relevant considerations and/or considered irrelevant matters;

    4. Members’ Services made a representation as to the meaning of “normal place of residence”, addressed it directly to the applicant with the intention that he should rely upon same, which he did. The representation and conduct therefore, created a reasonably held expectation that the Department’s definition would apply: accordingly it would be unjust to allow the respondents to make a finding, to publish a Report and to cause a Resolution to be passed, all to the effect that he had made an intentional misrepresentation.

  405. By reason of such matters the applicant sought; (i) an order quashing the Report and the Resolution and (ii) a declaration that the investigation, Report and Resolution were conducted, compiled and passed in disregard of fair procedures and in breach of his legitimate expectations. Further ancillary relief was also prayed for.

  406. Defence By Way of Objection/Opposition:

  407. The defence to these allegations, pleaded in part by way of objection, asserted the justiciability bar, basing this argument firstly on the separation of powers, in particular on Article 15.10 of the Constitution and secondly by reason of the absence of any “cognisable legal standard”, by which the Court could review the s. 4 finding, as such a finding was entirely one of political judgment. Without prejudice to this plea the opposition papers denied all claims.

  408. In addition however and of real significance is the plea that the Committee was not, as part of its inquiry, deciding whether the West Cork residence fell within s. 4(1)(e)of the 1938 Act so that the applicant might have properly claimed expenses therefrom, but rather was determining whether he had committed a “specified act” under s. 4 of the 2001 Act. Of even greater interest is the assertion that the Department’s definition of one’s “normal place of residence” was not only wrong but was in fact also ultra vires the 1938 Act. Further, the defence went on to say that, “for the avoidance of doubt”, the respondents accepted that the basis upon which the applicant submitted his expense claims, came within the Department’s definition, as previously outlined.

  409. The High Court Judgment:

  410. The High Court judgment ([2011] 1 I.R. 676) records the submissions made to it by the parties: those of the respondents, in respect of the immunity point, were very much structured as per the summary above given and were as follow. The procedures, investigations, and Report of the CMI and the Resolution of the House, were not amenable to judicial review. These matters and the issues which they raised were not cognisable by the courts. This resulted from the separation of powers doctrine, created by the Constitution with particular reliance on Article 15.10 thereof. The respondents were thus masters of this disciplinary process which was legally – that is constitutionally – the exclusive preserve of the House. Accordingly, as so understood, the issues in this case are non-justiciable.

  411. Such issues were said to be likewise beyond the courts’ reach, because the assessment as to whether or not a “specified act” was committed under s. 4 of the 2001 Act, was solely based on political ethics which can only be adjudicated upon by members of the House. The law knew of no “standard” by which it might have made that decision. The precise phrase which the respondents used in this regard was “no objective legal standard”. So once again, on this alternative basis, the objection made in the notice of opposition, was repeated.

  412. In short, it was claimed that what occurred was intrinsically an exercise by the House on and over its own affairs, involving as it did a member. It was no different than when disciplining a speaker for unruly behaviour or a member for unacceptable conduct, when committed within the House. The fact that all of the steps complained of were taken pursuant to statutory provisions, was simply not relevant.

  413. The submissions advanced by the applicant are readily detectable from the judgment, a summary of which now follows.

  414. The trial judge accepted (at p. 696) that passages cited from case law supported the view that the Houses of the Oireachtas had exclusive jurisdiction in matters relating to the internal disciplining of their members: in this regard he referred to Wireless Dealers Association v Minister for Industry and Commerce. (Unreported, Supreme Court, 14th March, 1956); O’Malley v An Ceann Cómhairle [1997] 1 I.R. 427 (or “O’Malley”) (p. 431); Haughey. v Moriarty [1999] 3 I.R. 1 (or “Haughey”) (p. 16); Controller of Patents, Designs and Trade Marks. v Ireland [2001] 4 I.R. 229 (“Controller of Patents”) (Kelly J. at p. 242); Maguire. v Ardagh [2002] 1 I.R. 385 (or “Maguire”) (Divisional Court p. 413: Keane C.J. at p. 537, McGuinness J. at pp. 628 to 629: Geoghegan J. at p. 736) and Howlin v Morris [2006] 2 I.R. 321 (or “Howlin”) (Hardiman J. at p. 366). However, in none of these cases was a member trying to assert against the House, or an emanation thereof, as Mr. Callely was seeking to do in the instant case, that his constitutional rights had been violated. This was the first such case. Therefore the dicta of the learned judges, whom I have mentioned, must be regarded as obiter.

  415. Having stated that with the adoption of the 1922 and the 1937 Constitutions, there was a clean break with parliamentary history as it then stood, the learned judge declared that whatever the scope of the privileges and immunities of Parliament might be, their bedrock is now “solely to be found” in the Constitution (p. 696).

  416. On the following essential grounds, the judge rejected the respondents’ submissions on the justiciability issue, holding in the process that Article 15.10 of the Constitution should be given a literal meaning and should also be strictly construed (p. 701).

  417. In concluding this section on what the High Court decided, it is useful at this juncture to cite from para. 79 of the judgment, at p. 713, where the learned trial judge himself gave the following summary of his decision:

  418. A.

    Article 15.10 of the Constitution does not expressly exclude the application of Article 40 or the jurisdiction of the courts as provided for in Article 34;

    B.

    Article 15.10 does not require by necessary implication the exclusion of the jurisdiction of the courts to achieve some recognisable constitutional objective, or to preserve the harmonious and complimentary co-existence of the Oireachtas and the courts;

    C.

    in light of A and B above, a restriction which inhibited a member of the Seanad in circumstances such as the applicant from access to the courts would breach his constitutional rights of access to the courts and to natural justice and fair procedures;

    D.

    the statutory nature of the jurisdiction exercised by the respondents under the Acts of 1995 and 2001 takes investigations of this kind outside the exclusive parliamentary realm, protected from the courts by Article 15.10;

    E.

    the extent or ambit of the range of subject matter covered by the exclusive jurisdiction of the Oireachtas under Article 15.10 is to be discerned from the standing orders of the Houses of the Oireachtas and the provisions of the Constitution which confer functions and powers on the Oireachtas;

    F.

    travelling and overnight expenses to be paid to members of Seanad Éireann, by virtue of Article 15.15 and the Articles of the Constitution dealing with the appropriation and disposal of public monies, can only be provided for in legislation and not in standing orders of the Houses of the Oireachtas, and hence it was never intended that such expenses would come within the remit of Article 15.10;

    G.

    investigations under ss. 8 and 9 of the Act of 1995 into allegations that a "specified act" within the meaning of s. 4(1) of the Act of 2001 has been committed, where the nature of the allegation is such that an adverse determination would cause serious damage to the good name and reputation and/or livelihood of the member concerned, are not within the exclusive jurisdiction of the Oireachtas as provided for in Article 15.10;

    H.

    the allegation in this case that the applicant misrepresented his normal place of residence for the purpose of claiming travelling and overnight allowances is such an allegation and is outside the scope of Article 15.10.

  419. As above mentioned the second basis upon which non-justiciability was claimed, stemmed from what is involved in operating s. 4 of the 2001 Act. In this regard the High Court rejected the contention of the respondents who argued (i) that the determination of whether or not a “specified act” was committed was intrinsically a matter of political judgment to be embarked upon by politicians and judged according to peer-review values and (ii) that there were no cognisable legal standards, objectively based, by which their judgment in this regard, could be reviewed. These arguments equally applied to the decision of Seanad Éireann in resolving, as it did, to adopt the Report including its findings, and to affirm the sanctions thereby outlined.

  420. The High Court on this point went further than mere rejection, being compelled to “profoundly disagree” with the suggestion of the members of the Committee, that as they were exercising a political function, they could, as a result, “free themselves from the disciplines of natural justice and fair procedures” and could cast aside well established principles so as to arrive at a conclusion which in their view, accords with “political ethics” (p. 715). Such was held to be entirely inconsistent with the minimum standards which a person, facing an inquiry capable of reaching adverse findings carrying the gravest of consequences, was entitled to expect: In re Haughey. The position of Mr. Callely in this regard was no different to any other individual citizen. That being so, it was necessary that all facts essential to the charge or accusation should exist and be proven to the required level. If such facts are not so established, the person in question should be exonerated. If so established, the question of sanction or redress only then arises. The inquiry envisaged by the 1995 Act was no different to that of the scenario so outlined.

  421. In reality according to the learned judge, the position in this case was that the applicant was facing an allegation that he misrepresented his normal place of residence, so as to improperly obtain expenses. There were other follow-on questions if this was established, such as whether he did so intentionally, negligently, recklessly, or even in bad faith. In substance he was facing a charge of dishonesty. If on proper inquiry he was found to have so acted, all right-thinking persons would clearly agree that some sanction or censure should follow. Certainly a court would be so minded. In fact, the circumstances giving rise to the Committee’s inquiry, are similar to those which on a daily basis the courts, and a variety of other bodies in this country, are obliged to deal with. The suggestion therefore that the judge of such an issue must have some unique insight into “political ethics” is entirely unfounded. For those reasons the High Court concluded that the submission made under this heading, could not be countenanced.

  422. The Appeal:

  423. By notice of appeal dated the 22nd February, 2011 the respondents appealed against the said High Court decision on sixteen grounds. These may be grouped into the following categories, all suggesting that the learned judge, in a variety of ways, erred in law and/or in fact in holding:

    1. that the investigation, Report and the resultant Seanad Resolution were not immune from judicial review, by virtue of the principle of the separation of powers or pursuant to Article 15.10 of the Constitution or as a result of the standing orders, in particular S.O. 90;

    2. that the scope of the Article 15.10 exclusive powers did not encompass, at a general level, statute-based jurisdiction, certainly where that included measures involving non-members, and at the particular level, decisions taken pursuant to the 1995/2001 Acts, in respect of a member’s entitlement to claim certain expenses;

    3. that the vindication of the applicant’s constitutional rights required access to the courts, and that when contrasted with the rights of members of the public, such denial would result in a breach of his Article 40.1 rights;

    4. that the Committee did not properly discharge its adjudicative function;

    5. that the political aspect of the function exercised by the Committee in making its findings and determinations was neither unique nor distinct; and

    6. that the Department’s definition of “normal place of residence” was (a) intra vires s. 4(1)(c) of the 1938 Act and its derivative Regulations, and (b) binding on the Seanad Committee.

  424. The Respondents’ Submissions to this Court:

  425. In the original submissions to this Court, the CMI defines the jurisdictional question as being “.... whether Seanad Éireann and its committees are masters of their own deliberations and whether the Superior Courts can exercise any function with regard to their deliberations where the disciplining of members is concerned in the context of an expenses regime”. They claim that by virtue of the separation of powers, Article 15.10 confers complete immunity on the House when it is engaged in this process. They complain that the decision of the High Court ends what was previously understood from judicial comment, although not from judicial decision, to be a distinction between members of the Oireachtas and non-members and that in so doing, it fundamentally erred in law.

  426. To support this proposition they refer to the cases above identified (para. 31) and rely on an article by Mr. Brian Murray, S.C., “Judicial Review of Parliamentary Proceedings and Procedures Under the Irish Constitution” in Carolan & Doyle (eds) The Irish Constitution (Governance and Values) (2008) (Thomson Round Hall): chapter 8, pp. 147 to 180 and also on a submission made by O’Donnell J. in Maguire, recorded at p. 466 of the report, when appearing as counsel (as he then was) for the applicant in that case.

  427. Of the authorities mentioned, what Geoghegan J. said in Haughey, when excluding from the case any evidence suggesting that the Seanad was not properly convened when passing a resolution under the Tribunal of Inquiry (Evidence) Act 1921, is noted (p. 16):

  428. .... it seemed to me that these matters were not justiciable in the courts on the grounds of the constitutional separation of powers. The Dáil and the Seanad regulate and enforce their own procedures;

    as is what Kelly J., in Controller of Patents, when referring to the O’Malley case, observed (p. 242):

    .... there was much force in the defendant’s submission that what happened in Leinster House, either in the upper or lower House, is neither cognisable by this [C]ourt or relevant to the issue that has to be tried.

  429. By far the most important authorities relied upon are, Maguire and certain remarks of Hardiman J. in Howlin. Both the judgment of the Divisional Court and that of the Supreme Court in Maguire are extensively quoted. These are cited, in some instances at length, later in this judgment. Whilst acknowledging that the aggrieved persons, in Haughey and in Maguire were non-members, and that as a result all observations relative to the instant issue, must be regarded as obiter, nonetheless such must be treated with considerable respect. When one also notes that these judicial statements, quite evidently, were carefully chosen and deliberately made, such factors add to their weight.

  430. Although the trial judge considered these dicta, nevertheless he erred in not affording them more persuasive effect than he did. In fact if he had correctly understood their true import, he would have felt compelled to follow and apply their impressive logic.

  431. The Applicant’s Submissions:

  432. There were three matters on the factual side which Mr. Callely seeks to highlight:

    1. At the inquiry Mr. Derek Dignam gave uncontradicted evidence to the effect, that the intention of sending the letter of the 2nd August, 2008 was to “set matters to right”, in that expenses were claimable not from a person’s current principle residence but rather from a member’s normal place of residence (p. 13, Day 2 of the transcripts). He said that in order to facilitate the applicant’s understanding of this phrase, the office had outlined in the body of the letter the definition previously received from the Department of Finance (para. 13 supra), which was both current and in use at the time.

    2. Mr. Callely gave evidence, again uncontradicted, confirming his reliance on the Department’s definition at all times. On that basis he was therefore satisfied that his West Cork address complied with its terms and that as a result his expense claims were submitted correctly.

    3. The Report and the Resolution had grave consequences for him. He said that he was pilloried in the national media, vilified by the general public and subject to personal abuse by others including strangers. His reputation was destroyed and his good name devastated.

  433. Reference is also made to the statement of opposition in which for the first time, the respondents acknowledged that the claims, as made, came within the Department’s definition. Although belated the same was welcome. However, the assertions which then follow, could only be described as quite extraordinary: these are that the CMI was not engaged in making a determination of whether the applicant had misrepresented his normal place of residence, but rather was deciding whether his actions offended political ethics, and secondly and in any event, that the definition given to him, was not only erroneous, but was in fact ultra vires the 1938 Act.

  434. The submissions made on the issue of justiciability both as regards the separation of powers and the s. 4 arguments, are entirely supportive of the judgment of the learned High Court judge from whose decision extensive passages were cited. Considerable reliance is also placed on the proposition that all statutory provisions must be viewed and operated in accordance with fundamental constitutional principles; East Donegal Co-Operative Livestock Mart Ltd.. v The Attorney General [1970] I.R. 317 at p. 341 (“East Donegal Co-Operative”).

  435. The Court’s Invitation:

  436. In an unusual step, though by no means without precedent, the Court, in a letter dated the 19th July, 2013, requested both parties to file supplemental submissions in relation to

    .... what relevance, if any, Article 15, and in particular subss. 12 and 13 have specifically to

    (i)

    the reliefs sought by the applicant, and

    (ii)

    the non-justiciability of the conduct of proceedings brought against members of either House under the rules or standing orders, asserted by the respondent.

  437. Supplemental Submissions Regarding Article 15:

    From the Respondents:

  438. The respondents commenced their further submissions with a reference to Article 6 of the Constitution which identifies the three distinct arms of government. Whilst the powers of the legislative branch are not strictly defined, Article 15 does set out some of its powers, but, in their view the express enumeration therein provided for, is not exclusive.

  439. Where the boundary line runs between that branch and the other branches of government, may have to be determined on occasions. When necessary, the courts will define the nature and scope of its powers, but will do so on considerations not solely found within the precise terms of Article 15. While regard should be had to its exact wording, a more holistic approach to interpretation is required, in particular in relation to Article 15.10. To limit oneself to such wording would be to fail to understand the Constitution in its historical and comparative context. It is in this regard, that the approach of the Constitutional Review Group of 1967 (para. 33 supra), is criticised as being too literal and too simplistic, which as a result gave rise to some irrational conclusions.

  440. Reference is made in this context to R. v Chaytor [2011] 1 A.C. 684 where the Supreme Court of the United Kingdom, when dealing with an assertion that expense claims of a member should be protected by parliamentary privilege, either based on Article 9 of the Bill of Rights 1688 or because of Parliament’s exclusive cognisance over such matters, eschewed a mere textual analysis or a formalistic approach and instead adopted an approach which centred on the constitutional principles, which determine what conduct should or should not be covered by such privilege. This approach was urged upon this Court.

  441. The interpretive task of the courts must be carried out with regard to the raison d'être of the privilege, even though such is not expressly identified in the Constitution. That task however is threefold; it is to:

    1. delineate the “zone of autonomy” of the legislative power, with Articles 15.10, 12 and 13 being indicative of same;

    2. determine the manner in which that autonomy can be exercised by employing a purposive interpretation of the subss. 10, 12 and 13, in particular regarding the interrelated concepts of power and protection; and

    3. harmonise such exercise with the other requirements of the Constitution, having regard to a historical and comparative law perspective.

  442. If the approach as suggested is followed, it should lead to a conclusion that the historical British type relationship between the three branches of State, is reflected in the concept of parliamentary privilege which applies in this country. This concept, in the manner argued for, is also enshrined in the constitutional models of many Commonwealth countries, from which the framers of our Constitution drew inspiration: thus, the Court should also consult those documents.

  443. Where the contours of the Constitution have been established by the courts, and when matters are found to fall within parliamentary privilege, then the courts are obliged to acknowledge that this is an area of immunity, or as it was put a “zone of self policing”, into which they must not trespass. Respect for the legislative organ means that the Houses of the Oireachtas have the sole task of exercising authority in respect of the relevant activity. Such activity includes the propriety of members’ conduct where such impacts on the reputation of either House in the discharge of its legislative power.

  444. It is claimed that the privilege encompasses not only what is necessary to protect the Houses from unlawful conduct but also from conduct which would inhibit the exercise of their legislative roles, the integrity and efficiency of which, must be ensured.

  445. Whilst it is acknowledged that a distinction can be drawn between the unwelcome attention of the executive on the one hand and the involvement of the judicial power on the other, nonetheless the exclusion of both is necessary so as to protect the legislative power. Historically the desire to confine the remit of the former, incentivised the development of the British law of parliamentary privilege. Whilst the judicial arm is far more benign, nevertheless it too, must be restricted as otherwise the separation of powers doctrine, would be breached. And so the term “protect”, in Article 15, must encompass protection of the discharge of the legislative function from scrutiny, even by the courts.

  446. The rationale for the courts’ respect of parliamentary privilege is out of deference to the separation of powers, as required by Articles 6 and 15 of the Constitution.

  447. In defining the boundaries of parliamentary privilege, the courts have consistently acknowledged that it stops at the precipice where non-members’ rights come into play (See Howlin at p. 367). The corollary should be that intervention is not permitted where members only are concerned.

  448. Further dimensions of parliamentary privilege are covered by Articles 15.12 and 15.13, all of which can be better understood by reference to the jurisprudence of the Supreme Court of the United States on Article 1, s. 6, Clause 1 of their Constitution.

  449. From the Applicant:

  450. Mr. Callely politely but firmly objects to the Court revisiting this matter and points out that Articles 15.12 or 15.13 were not mentioned in the pleadings, or in the statement of opposition or in the notice of appeal; in fact these provisions were never relied upon in the High Court, where the case was fully argued, with no application ever having been made, either in that Court or in this, to amend the statement of opposition. Thus, it would be unfair and unjust to permit the respondents to introduce such new grounds at this stage of the proceedings (Director of Public Prosecutions v Cronin [2006] 4 I.R. 329 is referred to).

  451. On the privilege or immunity point, reliance is based on the concession made by the respondents, that the terms of Article 15.10, given their ordinary meaning, cannot be said to render the subject matter of Mr. Callely’s complaints, non-justiciable. This inevitable concession is the reason why they have been forced to rely on some secondary meaning, which in any event, on a strict construction basis, is not open.

  452. The respondents’ reliance on British parliamentary practice is contrary to the long established jurisprudence of this Court that the powers and privileges of the Oireachtas are to be gleamed only from the express words of the Constitution. The British system is irrelevant to the Irish system; the latter was not modelled on the former (Maguire). There is no bar within the terms of Article 15.10 to the justiciability of statutory procedures. Thus, those at issue in the instant case are reviewable.

  453. As a result of the presumption of constitutionality regarding legislation, it is submitted that every statute must be operated in compliance with the principles of constitutional justice as first set out in East Donegal Co-Operative, and as subsequently confirmed in many other cases.

  454. In addition to the objection in principle regarding the introduction of Article 15.12 and 15.13 at this stage of the case, it is said that the persistent focus of the respondents on Article 15.10 (despite the concession above mentioned) and the lack of any citation of case law regarding subss. 12 and 13 in their supplemental submissions, demonstrate an “implicit or tacit” acknowledgment that those latter provisions are not directly engaged.

  455. The procedures at issue in this case are statutory and the Court must endeavour to interpret the Constitution and the legislation harmoniously. The House could have established a Committee on Members’ Interests under standing orders if it so wished: if it had done so, a greater level of protection from judicial scrutiny may have resulted, but this was not the route opted for. Therefore the Court is perfectly entitled to scrutinise the constitutional fairness of statutory procedures undertaken by committees (Cane v The Right Honourable the Lord Mayor [1927] I.R. 582; In re Haughey [1971] I.R. 217; and Maguire). As the governing statute, i.e. the 1995/2001 Acts, provides for very specific safeguards for an affected person, any analysis of Article 15 must be conducted in light of this.

  456. Finally on a discreet point the applicant says, that as the Oireachtas consists of the President and the two Houses (Article 15.2), committees, at least on the face of this provision, are not included. Accordingly Articles 15.12 and 15.13 do not apply if the CMI is found not to be a House of the Oireachtas. The provisions of s. 2 of the Committees of the Houses of the Oireachtas (Privilege and Procedure) Act 1976, which were in existence at the time, support this view.

  457. Decision:

  458. The basis upon which allowances are paid to members of each House is governed by statute and via permitted delegation, by regulations. The 1938 Act is the principle provision in this regard, having repealed similar statutes going back to 1923. Section 4(1)(c) of the 1938 Act states that such expenses are claimable from a member’s “normal place of residence for the time being”, without otherwise defining or describing what that might be. This and other provisions have been supplemented from time to time by regulations, with those in place for the period in question (May, 2007 to March, 2010) being the Oireachtas (Allowances to Members) (Travelling Facilities and Overnight Allowance) Regulations 1998 (S.I. No. 101 of 1998). The phrase “normal place of residence for the time being” continued to be used. The 1998 Regulations were replaced by the Oireachtas (Allowances and Facilities) Regulations 2010 (S.I. No. 84 of 2010) which however, because of their commencement date, are not material to this case. As can therefore be seen, the entitlement to and the obtaining of such allowances, is governed, in its entirety, by statutory provision.

  459. The legal foundation which established the system or regime, including the underlying process which the applicant was subjected to, is likewise statutory in nature, in this instance being that as provided for in the 1995/2001 Acts. Before addressing these provisions in more detail however, some general comments about this legislation should be made, although it may seem trite and unnecessary to do so.

  460. Unlike rules and standing orders, which each House can make independently of the other, both the 1995 Act and the 2001 Act (“the 1995 and 2001 Acts”) were brought about by the collective involvement of both Houses, operating under the provisions of the Constitution which enable legislation to be passed. Each Bill which gave rise to its corresponding Act was passed by both Houses of the Oireachtas and on presentation, was signed and promulgated into law by the President. This process was identical to that undertaken with the vast majority of Acts on our statute book. The creation of such legislation differed in no respect from those other Acts.

  461. Every step of the process to which the applicant was subjected to, is set out and provided for in the 1995/2001 Acts, without which such process could not have been initiated, much less conducted and concluded, as it was. The accusation or charge which he faced was created by s. 4 of the 2001 Act: the entitlement of members of the public to a make complaint is articulated in s. 8(2) of the 1995 Act; the role of the Clerk to Seanad Éireann is set out in s. 8(3); the establishment of the CMI is mandated by s. 8(1), with its powers to conduct an investigation being given by s. 9: the requirement to furnish a statement of contravention and to supply other information to the member concerned is specified in s. 32(6)(b); the manner in which the investigation should proceed is also guided by s. 32, as is the right of the member concerned to give and call evidence, to test by cross-examination that given against him, to make submissions and to be legally represented. A report of the investigation must be compiled and must deal with the issues mentioned in s. 10(2): that report must be laid before the House per s. 10(1) and the Committee may cause a motion to be moved in the House in that regard. Such motion may ask the House to note the report and to censure and suspend the member. All of these last mentioned matters are specifically provided for in s. 28 of the 1995 Act. As is obvious therefore, every element of this procedure is also entirely statutory based.

  462. Having decided to establish an investigation into the complaints received, it seems it was obvious from the outset that such had the potential to have serious consequences for Mr. Callely, both professionally and personally. That the allegations in question would be a significant matter for any individual cannot be doubted: to so accuse the holder of such a public position must indeed be serious. To determine and make findings as the CMI did, is an extremely grave matter. Not only did the Committee find that the applicant committed the misrepresentation as alleged, but it further held that such misrepresentation was on-going, was of a serious and grave nature and was done intentionally. In addition it held that the Senator had also, in effect, acted in bad faith. Moreover, to have the House of which one is a member, adopt a report and pass a resolution of censure and suspension without pay, must surely be a matter of the highest gravity.

  463. In these circumstances it would require little evidence to conclude that such a determination, including the sanction and its endorsement by the House, could cause serious damage to a person’s good name and livelihood, both generally and in particular as a public representative, as well as in many other respects. There is no reason whatsoever to question the affidavit evidence of Mr. Callely to the effect that he was pilloried in the media, reviled by the public, ostracised by colleagues and acquaintances and abused by strangers. If ultimately those findings should stand, it is almost certain that irreparable damage will have been caused.

  464. Whether such state of affairs is justified or not is entirely beside the point: what is to be noted is that the applicant was investigated by the CMI, which was empowered by legislation to make adverse findings which could be very damaging to his good name and reputation and to his right to earn a livelihood. In all other circumstances of which I am aware, where such a possibility exists, one would expect that the guarantee of fair procedures and constitutional justice would apply, and that for the vindication of such rights, an aggrieved person, if necessary, would have access to the courts. These are the cornerstone issues in this case. Despite the undoubted importance of the separation of powers, it is crucial not to lose sight of this point. Accordingly, it must follow, at least presumptively, that the constitutional rights of the applicant are engaged and that the issues relative to such rights, are amenable to judicial review.

  465. The case of Doherty v Government of Ireland [2011] 2 I.R. 222 should be noted in this context, where Kearns P., when responding to a submission that the Court had no jurisdiction to entertain a challenge against the Government for failing to move the writ for a by-election, said at p. 241:

  466. It seems to me that there is ample precedent for concluding that decisions or omissions which affect or infringe citizens’ rights under the Constitution are prima facie justiciable.

    I entirely agree with such view.

  467. Given the prima facie right to have the issues in controversy decided by the Court, the respondents, if they are to succeed in nullifying that right, must rest their case squarely within the Constitution. Henchy J. put the matter thus in Tormey v Ireland [1985] I.R. 289, at p. 297 of the report:

  468. Save to the extent required by the terms of the Constitution itself, no justiciable matter or question may be excluded from the range of the original jurisdiction of the High Court.

  469. As the 1995 Act and the 2001 Act are both Acts of the Oireachtas they, like all other such Acts, enjoy the presumption of constitutionality. Walsh J. in East Donegal Co-Operative outlined what is demanded as a consequence of such a presumption, from those who apply their provisions (p. 341):

  470. At the same time, however, the presumption of constitutionality carries with it not only the presumption that the constitutional interpretation or construction is the one intended by the Oireachtas but also that the Oireachtas intended that proceedings, procedures, discretions and adjudications which are permitted, provided for or prescribed by an Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice. In such a case any departure from those principles would be restrained and corrected by the [c]ourts.

    This passage was fully endorsed in In re Haughey.

  471. Moreover the 1995 Act itself, in furtherance of the State’s constitutional obligation to protect and vindicate core rights, is structured in such a way as to recognise fair procedures. Section 32 makes detailed provision in this regard (para. 69 supra). If recourse to the court is denied, without the most compelling of reasons, the effectiveness of such guarantee is significantly denuded of purpose and is substantially eroded of value: in effect the judicial system is rendered impotent.

  472. The respondents, in reply, claim that the Constitution itself demands such judicial exclusion: they base this on the fact that the applicant was a Senator at the time and that the investigation related to expenses. Indeed, in light of the decision in Maguire this argument would be quite unsustainable but for Mr. Callely’s membership of the House. Essentially therefore this issue, in the final analysis, is truly one of distinction, which turns on his status at the time.

  473. In such circumstances, for the respondents to disassociate the 1995/2001 Acts from the East Donegal Co-Operative principle (para. 75 supra), particularly where the Committee is exercising its statutory functions, it would require convincing proof that such was necessary so as to satisfy some constitutional imperative, or otherwise to reflect mandatory constitutional provisions. To do so in my view, would require the most persuasive of argument and the most decisive justification.

  474. The Relevant Articles:

  475. Article 15.10 prescribes that:

  476. Each House shall make its own rules and standing orders, with power to attach penalties for their infringement, and shall have power to ensure freedom of debate, to protect its official documents and the private papers of its members, and to protect itself and its members against any person or persons interfering with, molesting or attempting to corrupt its members in the exercise of their duties.

  477. Article 15.12 sets out that:

  478. All official reports and publications of the Oireachtas or of either House thereof and utterances made in either House wherever published shall be privileged.

  479. Article 15.13 sets out the circumstances in which immunity applies to discussion, debate and deliberation in the House and in which members are privileged from arrest:

  480. The members of each House of the Oireachtas shall, except in case of treason as defined in this Constitution, felony or breach of the peace, be privileged from arrest in going to and returning from, and while within the precincts of, either House, and shall not, in respect of any utterance in either House, be amenable to any court or any authority other than the House itself.

  481. Finally Article 15.15 should be noted as this subsection authorises the Oireachtas to make provision by law, for the payment of allowances in respect of public duties, and travel and other facilities of members in relation thereto. It states that:

  482. The Oireachtas may make provision by law for the payment of allowances to the members of each House thereof in respect of their duties as public representatives and for the grant to them of free travelling and such other facilities (if any) in connection with those duties as the Oireachtas may determine.

    The Key Inquiry:

  483. In simple terms, the remit, ultimately, within which the answer to the key justiciability issue is to be found, is very narrow: it is Article 15.10. The difficulties which arise are: how this subsection of the Article is to be interpreted; what matters may legitimately influence such interpretation; how is it to be viewed in light of other specific provisions of the Constitution, and further when the structure and overall framework of that document is also considered. To that end the first matter which should be considered is Article 15.12 and 15.13 of the Constitution.

  484. The Relevance of Article 15.12 and 15.13:

  485. In the papers grounding the application for judicial review, the complaints which Mr. Callely sought to litigate were set out, as were the legal basis upon which he pleaded for relief. The basis so advanced has no unusual features to it, it being asserted that the investigation, findings and Report of the CMI – all of which were carried out, made or compiled pursuant to statutory provisions – breached a variety of his constitutional rights, as well as his right to fair procedures and constitutional justice. In adopting the Report, so tainted in this manner, Seanad Éireann by so doing, likewise violated such rights.

  486. As was their entitlement to do so, the respondents took an objection, by way of defence, to the plea so made. They claimed that the matters above outlined were immune from judicial scrutiny on two grounds. The subsidary ground upon which this bar was asserted has never changed: from outset to conclusion, it has been said that the CMI, in operating s. 4 of the 2001 Act, was applying political standards which only the peers of the Senator, Mr. Callely could determine. That being so, the judicial process could not intervene, given the absence of any cognisable legal standard by which the Committee’s decision could be reviewed. This was therefore a classical issue of political ethics which the law, because of some intrinsic incapacity, was incapable of recognising.

  487. The primary, and clearly by far the most important objection was based on the separation of powers. Article 15.10 was emphasised as being the bedrock of this plea. No reference whatsoever was made to Article 15, subss. 12 and 13: likewise, in the High Court submissions, in the High Court judgment, and in the original submissions made to this Court. Only after being invited by the Court to do so, did the respondents make reference to the last mentioned subsections of that Article. If subsequently they had sought to place some real importance on these provisions, one might have been sceptical as to why they had not done so earlier. But that did not occur at the re-opened submission hearing. Instead, the respondents confirmed that their intended reliance on those provisions extended only as to how such informed the proper interpretation of Article 15.10. In other words, as a source from which the true meaning of that subsection could be better ascertained. Otherwise they were not claiming that the privilege which they asserted was to be found within either of those subsections.

  488. In these circumstances, save for the purpose last described, I do not believe that Articles 15.12 and 15.13 are central to this case.

  489. Overall Structure:

  490. Article 6 of the Constitution, which establishes a tripartite system of government for the State, does not specify or nominate the remit of each organ. However certain other Articles of the Constitution are also informative to this end, as is a consideration of its overall structure. In Articles 15 to 19 inclusive there are provisions regarding the national Parliament, with Article 15 entitled “The National Parliament” and sub-headed “C[onstitution and] P[owers]”. Articles 16 and 17 concern Dáil Éireann and Articles 18 and 19 deal with Seanad Éireann. The manner by which legislative law may be enacted and the relationship between the respective functions of each House in this regard, are set out in Articles 20 to 24 which follow. Article 28, which falls under the section headed “The Government”, and the following Articles, deal with the executive power of the State. The judicial branch of government is elaborated upon in Articles 34 to 37, inclusive. Thereafter provision is made for the trial of offences, with the fundamental rights section being contained in Articles 40 to 44 inclusive.

  491. Whilst many of these provisions inform each other, and whilst in a case of need each should be read, if possible, as being mutually complimentary, it is not suggested at a level of detail or even at a more general level, that recourse to provisions outside those of Article 6 and Article 15 would be of particular assistance in resolving the justiciability issue in this case.

  492. The Interpretive Point:

  493. The issue as to how the constitutional provisions relevant to this case should be interpreted is an important one, and as it has a bearing, albeit not a decisive one, on other issues, I propose to deal with it at this juncture. When discussing this question, it is important to bear in mind that no one particular approach has attracted such dominance as might entitle it to pre-eminent status in this area. At the general level the courts, in a manner not entirely dissimilar to statutory interpretation, but always with a conscious regard to the Constitution being the basic governing law of the State, have adopted a variety of measures to best elucidate the true meaning of its provisions. Irrespective however of what particular approach may be favoured in any given situation, there remains an overarching obligation to view the Constitution as a whole and wherever possible, to arrive at a conclusion where the provisions in question best compliment, not only other similar, inter-related provisions with which they naturally identify, but also the framework and architecture of the Constitution itself.

  494. The absence of some fixed or rigid approach, whilst obviously justified at a general level, is also desirable at the particular level. Whilst context may not necessarily be everything, without it everything is necessarily less. Therefore the nature of the right which is being asserted; the scope, breadth and reach of its purpose, its intended beneficiary or class of beneficiaries, its classification or positioning within the constitutional order, the requirements necessary to meet the suggested obligations, its direct and indirect effect and its relationship to and with other constitutional provisions, are all matters which will have influence, of varying degrees, on achieving the constitutional result which the charter, as a whole, demands. Consequently, whilst discussion at a general level is not only commendable but indeed is essential, care is nonetheless required so as to ensure that a proper focus at the particular level is also maintained.

  495. As a starting point it is worth recalling the words of Walsh J. in The State (Browne) v Feran [1967] I.R. 147 where at p. 159 it was said:

  496. In the construction of a Constitution, words, which in their ordinary meaning import inclusion or exclusion, cannot be given a meaning other than their ordinary literal meaning, save where the authority for so doing can be found within the Constitution itself.

    [emphasis added]

    Having referred to this dicta, O’Higgins C.J. in The People (Director of Public Prosecutions) v O’Shea [1982] I.R. 384 at p. 397 expressed a similar view, namely that plain and unambiguous words should be given their literal meaning: he added that whilst the Constitution must be looked at as a whole, where doubt or ambiguity exists, regard may be had to other constitutional provisions and to the situation which obtained and the laws which were in force, at the time of its enactment. The latter remark was obviously intended to reflect the scope for some historical input, when to do so would be informative to the issue at hand.

  497. Having cited both of these passages with approval, Murray J. in Sinnott v The Minister for Education [2001] 2 I.R. 545 (“Sinnott”) acknowledged at p. 680 that:

  498. .... the Constitution is a living document which falls to be interpreted in accordance with contemporary circumstances including prevailing ideas and mores, [but] this does not mean, and I do not think it has ever been so suggested, that it can be divorced from its historical context. Indeed, by definition that which is contemporary is determined by reference to its historical context.

  499. This statement reflects a belief that the Constitution should be viewed as a dynamic document, to be understood in its entirety, and as one which naturally develops and continues to evolve over its entire lifespan, with, evidently, no single interpretation intended to last forever. In essence, an approach from each perspective has a role, which is what Hogan and Whyte’s JM Kelly: The Irish Constitution (Tottel Publishing; Dublin; 4th edition; 2003) saw, as being the outcome of that debate in Sinnott: at para. 1.1.40 it states that such “.... reflected the competing appeals of both a historical interpretation and a ‘living document’ approach”.

  500. Giving the unanimous judgment of the Court, Murray C. J. in Curtin v Dáil Éireann [2006] 2 I.R. 556 (“Curtin”) set out some general principles of constitutional interpretation (pp. 609 to 612). Having instanced several contextual variations which may require analysis, such as particular words of general import or words or phrases grounded on a more philosophical basis, e.g. those involving fundamental rights, the learned Chief Justice said that:

  501. [a] correct balance has to be struck between the effect to be given to the literal meaning of particular words and the need to have regard to the terms of the Constitution as a whole.

  502. Murray C.J. expressed the result of his analysis at pp. 610 to 611 as follows:

  503. Where words are found to be plain and unambiguous, the courts must apply them in their literal sense. Where the text is silent or the meaning of words is not totally plain, resort may be had to principles, such as the obligation to respect personal rights, derived from other parts of the Constitution. The historic context of particular language may, in certain cases, be helpful .... This is not to say that taking into account the historical context of certain provisions of the Constitution excludes its interpretation in the context of contemporary circumstances.

    Having cited the passage above quoted from Sinnott (para. 93) the Chief Justice referred at p. 611 to what Hardiman J. had said, again in Sinnott, at p. 688 of the report:

    Tensions are said to exist between the methods of construction summarised in the use of adjectives such as ‘historical’, ‘harmonious’ and ‘purposive’. In my view, much of this debate is otiose because each of these words connotes an aspect of interpretation which legitimately forms part, but only part, of every exercise in constitutional construction.

  504. I agree with the above observations which in my view offer, at a general level, the required flexibility which is necessary, given the diversity of circumstances which may fall to be considered. In particular I think that what Hardiman J. said, highlights the imperfections of generality, renders unnecessary the sometimes strained attempts to categorise an approach in a particular way, and in any event has the great merit of reflecting what in many instances, actually occurs.

  505. It is worth noting in this context, that the key issue in Sinnott was whether the guarantee of free primary education contained in Article 42.4 of the Constitution should be prescribed by the practice of education in 1937 or be interpreted more so, as to reflect modern societal trends. Curtin was a case where the executive branch of government sought to invoke Article 35.4 of the Constitution so as to remove a Circuit Court judge from office for what was alleged to be “stated misbehaviour” on his part. Evidently therefore the rights in issue, and the nature of the inquiry considered necessary to inform the provisions in question, differed in both cases and obviously are quite distinct from those which are engaged in the instant appeal.

  506. Given therefore the range of circumstances in which interpretive issues arise, and noting how such can individually affect a court’s approach to such matters, it seems to me that logically, the closer the authority or precedent is to the instant case, the greater should be its influence and its assistance.

  507. Accordingly, The Attorney General v Hamilton (No. 2) [1993] 3 I.R. 227 (“Hamilton (No.2)”) is of particular interest. In that case the Court was called upon to examine the privilege, and its scope, as contained in Article 15.12 and 15.13 of the Constitution. The need to so do arose out of a finding by the respondent, who was the sole member of a Tribunal of Inquiry established to investigate aspects of the beef industry, that members of Dáil Éireann could not be compelled, in testimony before it, to explain utterances previously made by them in that House or to identify the source of the information upon which such statements were based. A further issue was whether by making statements to the Tribunal, the members concerned could be regarded as having waved the protection afforded by the provisions in question. That matter is not relevant to this case.

  508. When dealing with a submission which sought to have an extended interpretation of Article 15 applied, so as to include within the privilege thereby conferred, the statements made to the Tribunal, Finlay C.J. at p. 270 said:

  509. The provisions of Article 15, s. 12 and Article 15, s. 13 of the Constitution are explicit and definite in their terms, though the application of them may be a matter of complexity in certain instances. They constitute a very far-reaching privilege indeed to members of the Houses of the Oireachtas with regard to utterances made by them in those Houses. They represent an absolute privilege and one which it is clear may, in many instances, represent a major invasion of personal rights of the individual, particularly, with regard to his or her good name and property rights.

  510. Having noted a further constitutional restriction which is created by this immunity, namely the deprivation which the administration of justice suffers in not having available all relevant evidence in the discharge of its functions, the Chief Justice, for both of these reasons, approached the decisive issue of interpretation by stating: “.... having regard to the analysis I have made of the provisions of the Constitution applicable, and taking the narrower or less liberal interpretation of them which I feel obliged to take ....” (p. 271) (emphasis added). The passage continued by outlining the respective arguments of the parties and after some further discussion the Court (by majority), adopted this approach, and allowed the appeal on the issue in question.

  511. What is of utmost importance of course, is that having regard to the absolute privilege conferred by Article 15.12 and Article 15.13, which by its very nature has the capacity to significantly violate the constitutional rights of others, with the gravest of consequences, Finlay C.J. in respect of their meaning, felt compelled to reject any approach based on a broad analysis or a purposeful overview, but rather opted for what he described as a “narrower or less liberal” approach.

  512. As can be seen, Article 15.10 did not feature as such in Hamilton (No. 2). It was however directly in issue in Howlin v Morris [2006] 2 I.R. 321 where Hardiman J. dealt extensively with this construction issue (pp. 361 to 364). Having reviewed the wording of the subsection itself and being satisfied that there existed ambiguity in its terms, the learned judge, in the absence of specific judicial authority as to its meaning, referred to the “important authority” of Hamilton (No. 2). At p. 363 he continued:

  513. For analogous reasons, principally the interference which the immunity represents to the rights of individual third parties and to the public right to have very grave allegations about members of An Garda Síochána, the police force of the State, properly and transparently investigated, I believe that it is right to adopt the strict construction of the immunity contained in Article 15.10. The subject matter of Article 15.10 and of Article 15.12 and 13 are sufficiently similar to make the analogy a useful one. They are not, however, at all identical, as will appear below and an analysis of sub-Articles 12 and 13 is by no means interchangeable with that offered below of Article 15.10. But there is the essential common feature of a privilege or immunity extending only to parliamentarians and which may impact on the rights of other citizens or those of the public generally.

    Accordingly, as can be seen, this represents direct authority on how Article 15.10 might be construed.

  514. There can be no doubting the enormity of the immunities which are provided for by the provisions of Article 15.10, Article 15.12 and Article 15.13 of the Constitution. In argument, counsel on behalf of the respondents described them as “awesome”, saying that even in the face of injustice, the courts were required to step back in the interest of good governance. They are conferred on one body of citizens only, namely parliamentarians: their exercise may have the potential of inflicting grave damage and creating even life threatening consequences for third parties who, despite the circumstances, must remain without legal redress as the justice system is left powerless to intervene.

  515. The justification for such privileges and immunities is undoubtedly substantial and must be both acknowledged and respected. However, the effective and unfettered exercise of the duties and functions of the legislative arm would not be unduly affected if the parameters of such immunities are viewed strictly. In such way, that organ of the State can perform its functions in a manner entirely compatible with the Constitution whilst the judicial arm can ensure that its role, as the administrator of justice serving those who seek recourse to it, is not restricted, limited, or indeed even ousted any more so than is necessary. Such an outcome fits with the overall structure of our constitutional order. It also accords with the obligation to view the Constitution “ in the manner most likely to make it an effective instrument for the ordering of society and the governing of the Nation ....”: The Attorney General v Hamilton [1993] 2 I.R. 250 at p. 267. Therefore I believe that both Hamilton (No. 2) and Howlin (Hardiman J.), are correct in their respective interpretive approaches to those subsections of Article 15 and accordingly I would propose to adopt them.

  516. The Influence of British Parliamentary Privilege:

  517. In approaching the text of Article 15.10 it is highly instructive to pay particular attention to the argument: in this regard it struck me that, as impressive as the written submissions are, the respondents’ position on key aspects of the case is better understood when their oral articulation is also considered. Even then, that position is very definite and clear cut on some matters, but less so and perhaps even vague and aspirational on others. They accept, as I think they must, that in the context under discussion, the status which Parliament historically once enjoyed is no longer. The Constitution is now the charter of all powers exercisable in the State. Parliament therefore has only such powers as the Constitution accredits to it and evidently, their exercise are subject to and prescribed by, its provisions.

  518. It is submitted that the legislative power of the State includes parliamentary privilege: this privilege is an aspect of such power. Whilst Article 15.10, which is premised on Article 6, does offer some guidance as to the scope of the legislative power, it is far from being prescriptive to that end. In fact, it is said that the provision in itself should not be viewed as the starting point of the required analysis for establishing the parameters of such power. Indeed counsel for the respondents go much further, claiming that it would be quite dangerous to first consider the subsection, certainly if approached in isolation. It is then suggested that any literal construction of Article 15.10 must be resisted, as must be the temptation to reject the respondents’ submission simply because, there is no express ouster of court intervention in that subsection, such as to be found in Article 13.8, Article 15.13, and Article 28.3.3 of the Constitution. What is required therefore, is a holistic approach as to its meaning.

  519. What the real point of this submission seems to be is that both legislative power and parliamentary privilege have their own autonomous meaning, to be ascertained from some overview of the Constitution, which exercise of itself, should be approached from what is described as a contemporary constitutional perspective. Noting the differential constitutional history which the Constitution has been exposed to, it is acknowledged that this is a difficult task, particularly as some aspects of that history are appropriate and others are not. Challenging however as it may be, in interpreting Article 15.10 and to understand the concepts of legislative power and parliamentary privilege, it is essential in so doing to have regard to the historical context. Therefore any interpretation which does not embrace such a perspective, is flawed.

  520. It is therefore claimed that such an exercise must inevitably be influenced by the British parliamentary system, to which this jurisdiction was exposed for several centuries. It is only in this way that one can find, within Article 15.10, the source of the parliamentary privilege which the respondents rely upon. When that has been achieved the contours of the respective boundaries between the legislative branch and the judicial arm, can be seen and will thus become evident.

  521. This submission in my view cannot be accepted as having the influence suggested, for to do so would deny a vital understanding of, and would effectively disown the national understanding of, the new constitutional order as established in 1937. and indeed even, but admittedly to a lesser extent, in 1922.

  522. The supremacy of the British Parliament which existed for centuries was a pivotal pillar of the constitutional history of Great Britain, and Great Britain and Ireland when this country was under Westminster rule. Upon obtaining sovereignty, this Nation’s historical classification ceased; as did, in its essential terms, the parliamentary model of that age. Ever since, all powers of government derive from and vest in the people. Those powers were, as remains the case today, assigned to the three branches of government. No one branch enjoys paramountcy over another – all three individually are to exercise the powers of State, within their respective remits, and are to collectively act as a whole. In essence, the new constitutional scheme marked, as was intended, a definitive break from the former model of government and with that rejection, relegated the previous practice of parliamentary sovereignty and the privileges attended on it, to history. There was therefore on the one hand, a clear departure from the past and on the other, the self-evident creation of a new beginning, a new State, with its own structure of government. See Byrne v Ireland [1972] I.R. 241 (“Byrne”). This had come to full fruition by 1937. In all of its aspects this new order is to be found within, and is regulated by the Constitution, and not in any manner external to it.

  523. The context in which the Constitution of the Irish Free State came to be drafted and its historical backdrop was referred to in some detail by Kingsmill Moore J. in In re Irish Employers Mutual Insurance Association Ltd [1955] I.R. 176 (“In re Irish Employers”) at pp. 223 and 224 where, in contrasting the background to the establishment of the Canadian Constitution, he pointed out that whereas with the latter there was self-evidently a desire to adopt a Constitution similar in principle to that of the United Kingdom, that was certainly not the situation in Ireland. The learned judge said:

  524. Very different was the historical background of the Saorstát Éireann’s Constitution. It arose out of an armed revolt against British rule and the terms of a Treaty to put an end to hostilities. Of those who enacted it nearly all had been engaged in the revolt in one way or another and many had actually borne arms. There is not the slightest reason to suppose that ‘with a view to the perpetuation of the connection with the Mother Country’ they desired ‘to follow the model of the British Constitution so far as circumstances permit.’ The admitted reproduction in the Constitution of many of the features of the British Constitution is more properly attributable partially to a genuine appreciation of the inherent excellence of those features, partially to the fact that the Constitution had much of the nature of a compromise between British and Irish views.

  525. A passage from the judgment of Ó Dálaigh C.J. in Melling v Ó Mathghamhna [1962] I.R. 1 (“Melling”) is also highly instructive in this regard. He said at p. 46:

  526. The United States of 1775 which emerged as a republic looked upon itself as securing to itself the rights and privileges of the glorious revolution of 1688. A once-happy colony was being driven by the selfish taxation policies of the Westminster government to sever its connection with the homeland. The parting was made in sorrow as the recitals to the Declaration of Independence bare witness. Ireland’s case in 1922 was different. The framers of the Constitution of Saorstát Éireann had no particular reason to look with reverence or respect to the British statute roll in Ireland as affording them an example of standards which they would wish to enshrine in their new Constitution.

  527. Having reviewed both of these cases, Denham J. in Maguire v Ardagh [2002] 1 I.R. 385 summed up her view of the position at p. 561:

  528. The Irish Constitution, both in 1922 and 1937, had the benefit of modern constitutional concepts and people with a vision of a new Irish State. There is no reason to assume that the privileges and powers of the House of Commons would naturally be an incident of the representative assembly in Ireland. Indeed there is evidence to the contrary.

  529. Professor Kohn, in his book, The Constitution of the Irish Free State (Allen & Unwin Ltd.; London; 1932) dealt with parliamentary privilege in several places but in particular at pp. 229 to 233. He made a number of observations which are both interesting and informative. Firstly, he said that the “latent powers of extensive scope”, which the concept of parliamentary privilege vested in the British Parliament, “has been restricted by the Irish Constitution within .... narrow limits”. Secondly he spoke of the power of each House to make its own rules and standing orders and having done so, of the “exclusive cognisance”, which each individual House enjoys over and in respect of, the matters thereby covered. Thirdly he felt that the power to attach penalties for breach of such rules and standing orders is limited to the disciplinary measure of suspension and that Parliament has no authority to inflict any other form of penalty, nor the power to expel a member, both of which undoubtedly still existed at the time in the House of Commons.

  530. The Professor then continued at p. 232:

  531. It is inevitable that there should be a certain tendency to view the Oireacthas in the light of the conceptions inherited from the House of Commons; but it is evident from the context of the Constitution that the Irish Parliament is not the omnipotent assembly for which Dicey could claim that its powers ‘make a near approach to an authority above that of the ordinary law of the land’. Its scope is so rigidly fixed by the terms of a written Constitution, its functional relationship to the other organs of the State so clearly defined, that it is not permissible to invest it with those attributes of ‘sovereign’ authority which have accrued to the House of Commons during its conflicts with the Crown. It is invested by the Constitution with comprehensive and adequate powers to regulate its business and to maintain its authority. It has none other.

  532. This I regard as a statement of high authority as to Ireland’s departure from the pre-1922 form of government and also as to the strict confinement of parliamentary powers to those as stated in the Constitution, and none other.

  533. In addition, based on the analyses conducted by this Court in In re Irish Employers, Melling and Maguire, there is no evidence to suggest that the framers of the 1937 Constitution were minded to continue the scope of the former immunity into the new order and in the process to isolate representative members of Parliament from recourse to the fundamental rights section of the Constitution. Furthermore, as I will show, such a denial of rights is neither necessary nor required for the legislative power and thus would have been imported only because of this country’s historical connection with Great Britain. Given however the manner in which Ireland’s separation from that country was achieved, such seems most unlikely. The fact that not every vestige of such history was eliminated, does not affect this conclusion. I therefore cannot accept that on the basis of a historical perspective, the 1937 Constitution has been so overtly influenced, in the way and to the extent, which the respondents assert.

  534. Not Determinative:

  535. The view which I have taken on the proper approach to the construction of Article 15.10 does not of itself determine whether the immunity claimed is within the subsection. Before proceeding further however, it is important to state, or perhaps even restate that if the asserted privilege exists, the same must have its foundation within the Constitution; this follows from the supremacy and the self-contained nature of that legal order. If not so found to rest within its provisions, there can be no basis otherwise for its existence. This is entirely supportable at the level of principle: it is also confirmed by authority: in Byrne, Walsh J. said at p. 281 that:

  536. .... the whole tenor of our Constitution is to the effect that there is no power, institution, or person in the land free of the law save where such immunity is expressed, or provided for, in the Constitution itself.

    See also, inter alia, that part of the passage from The State (Browne) v Feran [1967] I.R. 147 which is emphasised at para. 92 supra and also the comments of Keane C.J. in Maguire which are next quoted.

  537. Such privilege, in the manner contended for by the respondents, is not, as is conceded, to be found in Article 15.10 by way of express provision: this is clear from the face of the provision itself and is reinforced by what Keane C.J. said in Maguire. Having quoted Articles 15.10, 12 and 13, the Chief Justice observed (p. 537):

  538. These extensive immunities and privileges, denied to citizens who are not members of the House of the Oireachtas, are an important feature of the parliamentary democracy established under the Constitution. Neither these provisions, however, nor any other provision of the Constitution expressly exempts from scrutiny by the courts the actions of the Oireachtas or its individual members save to the extent specified in Article 15.12 and 13.

  539. It is however said that the subsection can be regarded as ambiguous and so resort may be had to the second tier of interpretation, so as to penetrate its outer layer and explore what may lay inside, so that its true meaning may be found. Whilst generally “ambiguity” and expressions with similar intent, have been the gateway to look behind the actual words used, I would also accept that where provisions are silent as to the matters agitated, such may also be similarly regarded for construction purposes.

  540. Meaning of Article 15.10:

  541. The fact that a conferral of such immunity cannot be found within its express terms is not conclusive as to its meaning. That omission, which I will come back to and which cannot however be disregarded (para. 145 infra), does not of itself necessarily and inevitably lead to a conclusion that what is argued for, is an unwarranted assumption of power by the House. In this regard I would accept at the level of principle that the infrastructure, which is both indispensable to and necessitated by the exercise of legislative power, may also enjoy what immunity attaches to that power. What remains the challenge however is whether such immunity can, and as a matter of law should, be inferred or read into the provision. In conducting this assessment the Constitution must be viewed as a whole.

  542. Hamilton C.J, in Haughey v Moriarty [1999] 3 I.R. 1 at p. 32 touched very much on what may be considered an adjunct to express power: at p. 32 the learned Chief Justice stated the following:

  543. Having regard to the sovereign and democratic nature of the State, each of the organs of government enjoy the powers normally exercised by such organs in a sovereign and democratic state and are not restricted to the powers expressly set forth in the provisions of the Constitution. They are, however, subject to the provisions of the Constitution and in the exercise of such powers, are obliged to have regard to such provisions.

    The powers of the Houses of the Oireachtas are not limited to those specifically set forth in Article 15 of the Constitution but must include such powers as are normally and necessarily exercised by a legislature in a democratic state. These powers and the exercise thereof may of course be limited by the provisions of the Constitution.

  544. I agree with this view subject to one point which is really one of clarification rather than expansion. The reference to powers which “ are exercised by a legislature in a democratic state” are not in my view intended to mean that one can look at other States, which are described as democratic, and confer on the Houses of the Oireachtas the powers which the Legislative Assemblies of those States, enjoy. As the structure of government in many democratic states will vary considerably, as undoubtedly will their constitutions, that could not have been what was envisaged. I think that the true meaning of the phrase is that, by reference to Article 5 of the Constitution, which declares the democratic nature of the State, and noting the overall system of divisional responsibility which each branch of government has, the legislative branch is not restricted in its powers to those which are expressly found in the Constitution, but is also afforded with such additional powers as are necessary for the essential discharge of its functions. In all circumstances however, such powers must exist within the Constitution and of course are subject to and governed by its provisions.

  545. Article 15.10: Absolute Judicial Exclusion Not Asserted:

  546. The respondents do not argue that what is involved in or covered by Article 15.10, expressly or impliedly, is deserving of absolute immunity. They do not make that case. They accept that judicial entry can occur, indeed at several different levels, occasioned in a variety of circumstances. If either House fails to make rules and standing orders, such would be a breach of the Constitution and would be justiciable: the nature and scale of the penalties which might be legitimately included for their breach, might likewise be reviewed. A provision in the rules for a jail sentence, or one with similar severity for say, unruly behaviour, would be reviewable. Conduct by members which could amount to offences like fraud, false pretences, dishonesty, and evidently those of a more serious nature, could attract the criminal process. A rule in standing orders, indeed even in legislation, which would deny a person in the position of Mr. Callely any right to be heard could be looked at. The prohibition contained in Article 15.4 of the Constitution continues to apply, as does the President’s right to refer a Bill including e.g. at the time, the Bills which gave rise to the 1995 Act and the 2001 Act, to the Supreme Court under Article 26. There are further examples but these suffice to show that even on the respondents’ own argument, immunity in an absolute sense is not suggested. Indeed, quite evidently as it was put, the House cannot have control over all aspects of a member’s life.

  547. So judicial access at different levels is permitted but apparently as here, where the “complained of” is a member of Seanad Éireann and where the “complaint” relates to expenses, it is not.

  548. What is highly interesting about this point, indeed far more so than the acknowledgement that absolute privilege does not exist, is that even when intervention can take place, the courts’ jurisdiction to involve itself was said to be highly circumscribed. It was contended that access, in most of the examples above given, is permitted only on the basis of the courts’ role as the ultimate adjudicator of what is included in or excluded from the remit of the legislative power. The scope of review does not exist beyond this parameter and does not succumb to provisions of the Constitution which are not directly relevant to such exercise. It therefore follows that intervention is not permitted because of the court’s obligation to vindicate rights, but rather and solely, on the basis of determining whether the legislative branch has exceeded its powers, as duly conferred. It is therefore only those provisions of the Constitution which relate to the separation of powers that can form part of this analysis. These do not involve provisions such as Articles 40 to 44 of the Constitution.

  549. I would entirely reject this submission: what is the exclusive domain of the legislative arm remains solely a matter for it. There is no question of this, or, I suspect, the executive arm, either now or indeed ever, attempting to exercise a function which is exclusively that of another branch of government. Hardiman J. went to very considerable length in Howlin v Morris [2006] 2 I.R. 321 to emphasise this point (p. 366). However, when judicial intervention is permitted by the Constitution there is no basis, at any level of justification, for the imposition of such restrictions. The courts either can or cannot intervene but when they do, the basis for their authority in so doing derives from their obligation, as the ultimate guardian of constitutional rights, to uphold and protect such rights, when called upon. Therefore when appropriate to do so, the exercise by the judicial organ of its constitutional powers, cannot be trammelled, in the manner suggested.

  550. Case Law Relevant to Article 15.10:

  551. There has been some case law in this general area and also on Article 15.10 of the Constitution as well as on Article 15.12 and 13. In Wireless Dealers Association v Minister for Industry and Commerce (Unreported, Supreme Court, 14th March, 1956) (or “Wireless Dealers”) the Court was asked to injunct the Minister for Industry and Commerce from introducing a Bill in Seanad Éireann after it had been initiated and passed in Dáil Éireann. Under Article 20 of the Constitution, every Bill so initiated and passed, “.... shall be sent to Seanad Éireann ....” for its consideration. Maguire C.J. took the view that what the plaintiff sought to do was to directly interfere with the process of legislation which the Constitution had entrusted solely to the Oireachtas: he added that if the Court could be engaged at that stage of the process, the Constitution would have said so. It did not: therefore there was no warrant for the Court to intervene.

  552. In a concurring judgment, Ó Dálaigh J. also rejected the application on the basis that it sought to obstruct freedom of debate and otherwise to interfere with the free deliberations of each House, which Article 15.10 expressly conferred.

  553. Mr. O’Malley (O’Malley v An Ceann Cómhairle [1997] 1 I.R. 427), then a member of Dáil Éireann, was dissatisfied with a ruling of an Ceann Cómhairle which disallowed in part a question which he wished to ask a Minster. He sought to challenge the ruling as a breach of the standing orders of the House. He was refused leave on the basis that the Court could not interfere in the internal affairs of Dáil Éireann. The Supreme Court agreed, and in giving the judgment of the Court, O’Flaherty J. said at p. 431:

  554. How questions should be framed for answer by Ministers of the Government is so much a matter concerning the internal working of Dáil Éireann that it would seem to be inappropriate for the court to intervene except in some very extreme circumstances which it is impossible to envisage at the moment. But, further, it involves to such a degree the operation of the internal machinery of debate in the house as to remain within the competence of Dáil Éireann to deal with exclusively, having regard to Article 5, s. 10 of the Constitution.

  555. The challenge in Haughey included a suggestion that the Seanad was improperly convened when passing certain resolutions pursuant to the Tribunals of Inquiry (Evidence) Act 1921: the High Court refused to consider this ground on the basis, as stated by Geoghegan J. that (p. 16 of [1999] 3 I.R. 1):

  556. these matters were not justiciable in the courts on the grounds of the constitutional separation of powers. The Dáil and Seanad regulate and enforce their own procedures.

  557. Both the Divisional Court and the Supreme Court in Maguire dealt extensively with the issue of justiciability in the context of the separation of powers and in particular by reference to Article 15.10 of the Constitution. In that case, the Houses of the Oireachtas, through a joint committee, established a sub-committee to inquire into the death of a man who was shot by gardaí in April, 2000. That sub-committee exercised the power, previously obtained, to issue directions, to compel the attendance of witnesses and to require them to give evidence before it. The sub-committee made it clear that it considered its role as “adjudicative” in nature (see p. 411) and that as part thereof it intended to make findings of fact and express opinions which could have very serious consequences for third parties. The applicants who were members of An Garda Síochána objected and instituted judicial review proceedings seeking inter alia to quash the relevant directions.

  558. Morris P., in delivering the judgment of the Divisional Court, stated at p. 413 that “matters internal to the workings of [P]arliament in carrying out its legislative power or alternatively in dealing with its own members”, could not be subjected to judicial review. At p. 537 of the report, Keane C.J., having outlined the provisions of Articles 15.10, 12 and 13, made the observations quoted at para. 121 above, and then continued:

  559. [T]he courts have made it clear that they will not intervene in the manner in which the House exercises its jurisdiction under Article 15.10 to make its own rules and standing orders and to ensure freedom of debate, where the actions sought to be impugned do not affect the rights of citizens who are not members of the House.

    McGuinness J. at p. 628 said:

    In recent years another such standing committee has been established – the Committee on Members’ Interests of Dáil Éireann. All these committees, all investigations carried out by them and all penalties imposed by them (or by the Dáil or Seanad at their instigation) concern solely the members of the Oireachtas themselves. There is no doubt but that all of those matters are non-justiciable in accordance with Article 15.10.

    The learned judge then focused on the issue in question, namely whether such immunity extended to cover persons who were not members of either House. Having referred to the power of the Committee in question, to compel the attendance of witnesses, the judge continued at p. 629:

    Could such non-justiciability extend to a situation where, for instance, the members of a committee were in blatant breach of the standing orders of the House itself and that breach affected the rights of non-members? It seems to me that it could not.

    Geoghegan J., again in Maguire (at p. 736), said:

    While it is true that out of respect for the separation of powers the courts will not intervene with the internal operations of the orders and rules of the Houses in respect of their own members, the non-justiciability principle stops there. If there is some essential procedural step which a House of the Oireachtas or a committee thereof has to take before rights of an outsider, that is to say a non-member of the House can be affected, then at the suit of that outsider the courts can give relief if that essential step is not taken.

  560. None of these cases in my view are authority for the proposition that the courts, by virtue only of the wording of Article 15.10 or on the basis of any necessary implication to be derived therefrom, are excluded from their constitutional role when called upon to uphold an individual’s constitutional rights. Wireless Dealers can be seen as an attempt to directly impede the very process of legislation itself and also as an attempt to obstruct or curtail debate within the House. O’Malley raised an issue which classically fell within the normal range of activity which each House must engage in, so as to conduct its business. Far from that Court’s decision being surprising, it could rightly have been criticised, if it intervened, given the subject matter of the complaint. That, in essence, leaves Maguire.

  561. The remarks of the Divisional Court in that case, which are referred to at para. 135 above and which I have taken from the High Court’s judgment in this case, are required to be given their proper context, which is to be found at p. 413 of the report. Immediately preceding the passage as quoted, the Court, having referred to a number of cases, including O’Malley, recorded that such decisions “.... all deal with matters internal to the workings of [P]arliament in carrying out its legislative power or alternatively in dealing with its own members”. The observations of the Chief Justice above cited seem to be directed towards the manner in which each House can make its own rules and standing orders under Article 15.10, rather than towards dealing with a situation where such rules and standing orders have no application. The comments of Geoghegan J. are likewise referable to such rules and standing orders and in any event, if anything, his overall views can be regarded as being restrictive in nature rather than expansive in purpose.

  562. Whilst I accept that the passage quoted from the judgment of McGuinness J. is capable of expressing the view that issues regarding members are non-justiciable, nevertheless, this was clearly obiter, as an essential feature of Maguire (previously noted), was the potential impact which the inquiry, given its powers and intended role, could have on non-members. That point was at the heart of that case, not as here where the applicant is a member of the Seanad. Therefore I do not accept the breadth of the submission that the passages above outlined establish a fundamental basis for the immunity proposition as made.

  563. There is one further passage from the judgment of Keane C.J. in Maguire which should be cited: it reads (p. 534):

  564. It should be noted that it was not submitted on behalf of the sub-committee .... that the claim as to non justiciability extended to the compliance or otherwise of the committee and the compellability committee with provisions of the Act of 1997. It was also accepted that the High Court was entitled to examine the procedures undertaken by the sub-committee with a view to ascertaining whether they complied with the requirements of natural justice and fair procedures, a concession inevitably made in the light of the decision of this [C]ourt in In re Haughey.

    This is quite an important statement, the validity of which has not been challenged in this case.

    The Constitutional Review Group (1967):

  565. And so, the Constitution needs to be looked at as a whole, with particular focus not only on the express powers of the legislative arm, but also on what is required or implicit so that such powers can be effectively and efficaciously used. As one must look at what the Constitution positively provides in this regard, the corollary is of course that one must also search for contra indicia which might be suggestive also of the answer. First however, I should refer to the report of the Constitutional Review Group of 1967.

  566. Like Geoghegan J. in Howlin (p. 383 et seq.), I find myself impressed with the examination of Article 15.10 which was conducted by this Group. Paragraphs 36 to 40 inclusive of its report are particularly instructive. In summary, its views on this provision, which it described as “presenting some difficulties” can be stated as follows:

    1. The subsection contains no reference to the non-applicability of other provisions of the Constitution, such as is found for example in Article 28.3.3. That being the case, it follows that the pivotal provisions dealing with the administration of justice and fundamental rights, continue to apply. As a result, the powers of each House are not as extensive as might be found in other parliaments, such as in Britain.

    2. The power to attach penalties applies only to breaches of rules and standing orders – no such power is given in respect of the other matters covered by the subsection, such as the power to ensure freedom of debate, to protect official and private papers and to protect themselves and their respective members from molestation or corruption.

    3. The Oireachtas can only operate on a conferral basis: its powers are those set out in the Constitution and not otherwise. In view of the structure of the Constitution it would be remarkable for there to exist parliamentary privilege of the kind suggested, without much further comment on it within Article 15.10. The wording of this provision does not indicate such an intention.

    4. The scope of Article 15.10 empowers each House to deal with internal matters of procedure and discipline only and to punish its members, including the power to withdraw privileges, for breach of its rules or standing orders.

  567. The report went on to suggest that subject to the foregoing, a special Act of Parliament should be enacted so as to deal with all other offences against Parliament and its members, just as many other countries have done. That of course has never happened in this jurisdiction.

  568. Geoghegan J. in Howlin, having reviewed this report, said (p. 385):

  569. The most that can be said is that Article 15.10 does seem to assume that, independently of the terms of Article 15.10 itself, the freedom of debate, the protection of official documents and the protection of private papers of members were all natural to the efficiency and efficacy of a [H]ouse of [P]arliament. The main purpose of Article 15.10 is to dispense with the necessity for legislation to secure these freedoms and protections by allowing each House to make its own separate rules relating to them.

  570. This instructive discussion of Article 15.10 by both the Constitutional Review Group and by Geoghegan J. would seem to suggest that, the privilege or immunity claimed in this case, has no presence within its provisions. The reasons why the Constitutional Review Group came to this conclusion, which are clearly stated, are varied and self-explanatory, and whilst not conclusive, are at least indicative, if not even more so, that Article 15.10 should not be understood as having the breadth of immunity which the submission seeks to assert.

  571. There is one aspect of this notable analysis however which I wish to further comment on: it relates to the absence of an unequivocal declaration of ouster in Article 15.10, as found in other provisions of the Constitution, and whether such is fatal to the respondents’ assertion. As I read the report, the Constitutional Review Group did not so conclude but instead treated its absence as a factor in its overall view of the subsection. I would approach it in much the same way, for to do otherwise, would be to treat silence, in and of itself, as some sort of principle giving rise to an absolute bar, which cannot be. Furthermore, The Attorney General v Hamilton [1993] 2 I.R. 250 shows that such an approach may be inappropriate. In that case what crystallised the Court in holding with cabinet confidentiality was that, the contrary view had the potential of paralysing the cabinet in its responsibility to collectively meet, collectively discuss, be collectively responsible for each and all departments of State, and be collectively accountable to the Dáil. In other words, without such protection, the very essence of its functions would be seriously compromised. Therefore the absence of a non-justiciability provision, such as found in Article 15.13, is not conclusive but is nonetheless strongly indicative of the provision’s true meaning.

  572. The following questions must therefore be asked: in what way will the efficiency and efficacy of the House be curtailed if the breadth of parliamentary privilege as claimed, is found not to exist: how would the House be obstructed in the discharge of its functions or frustrated in the conduct of its core and essential business? No answer of any real substance has been given to these critical questions: certainly none that resonates with me. It is not suggested nor could it be, that the process of legislation itself would be interfered with or that such immunity is a necessary feature of that process. Nor is it claimed that freedom of debate is impaired, nor that full deliberation is curtailed, nor that the Seanad’s role, relative to matters covered by rules and standing orders, would be compromised. At its height, it is said that the House must have disciplinary control over its members, when expenses are involved, and that such must be a necessary adjunct to its powers. Whilst Mr. Callely was obviously a member of the House at the time and whilst expenses relate to his attendance at the House, those factors in themselves are not sufficient to carry this submission. In the absence of an express immunity provision, it becomes necessary to establish, if such is to be inferred, that its constitutional role will otherwise be critically impaired. I cannot see how this would result or follow if the actions of the respondents are subject to judicial review. How such might impact on good governance or why the suggested immunity is central to the form of governance required by the Constitution, have never been satisfactorily answered. Consequently, I do not believe, at the level of principle, that the immunity argued for can be inferred either as a constitutional imperative or otherwise to achieve some overriding constitutional objective.

  573. Standing Orders:

  574. Much discussion was had regarding S.O. 90 during the course of this case. As will be recalled, Article 15.10, by express provision, gives to each House the power to make its own rules and standing orders. Such a jurisdiction, and the manner in which it is exercised, certainly in respect of non-members, is not, according to Keane C.J. in Maguire, reviewable by the courts. The applicant, in argument, suggested or even agreed, that if the process to which he was subjected was provided for by such rules and standing orders rather than by statute, his case would be much more difficult. This, on the basis that, in respect of matters properly within such rules and standing orders, each House is the Master of its own affairs and thus on an express constitutional basis, its acts and omissions are immune from judicial scrutiny. It is unnecessary to pass any comment on this concession, other than to note it.

  575. The respondents in this regard seek to argue that by reason of S.O. 90, it can be said that such process may be regarded as coming within the rules and standing orders of the House, as that phrase is understood in Article 15.10. In other words, S.O. 90 establishes the necessary link between the 1995 and 2001 Acts and the standing orders of the House, so that the former can be considered as being part of, or otherwise as being incorporated within, the latter.

  576. I cannot accept this submission. It seems to me that S.O. 90 owes its entire existence to the Oireachtas and not to Seanad Éireann. The immediate and only backdrop to its creation, resulted from a statutory obligation imposed on each House by virtue of s. 8 of the 1995 Act. Thereunder the “select committee” envisaged by that provision was established, and is of course in this judgment known as “the Committee” or “the CMI”. Its existence was not linked to or associated with Article 15.10; nor was it established by the House under its powers, as given in standing orders, to appoint committees, which it has done from time to time. Further, its basis is also quite unlike all other provisions of such standing orders. In effect, Seanad Éireann was no more than the nominated agent by which it was created. Moreover, such a committee exists for the sole, but obviously important purpose, of discharging the functions conferred on it by the 1995/2001 Acts. Those functions cannot be varied or altered by the House. It therefore has no existence or purpose independent of such Acts. Consequently, in my view, the process involved in this case cannot be said, by virtue of S.O. 90, to be part of the rules and standing orders of the House, as such are envisaged by Article 15.10 of the Constitution.

  577. This conclusion is patently evidenced also by the fact that the Senator was not accused of breaching any rules or standing orders. No mention of such is to be found either in the statement of contravention or in the Committee’s findings and determinations. Consequently, in my view, as the standing orders of the House have nothing to do with this case, the respondents cannot rely on the privilege which Article 15.10 confers in this regard.

  578. A broader consideration of standing orders is also instructive as to the type of issue or activity covered therein. Matters that are dealt with include, the leader and deputy leader of the House, its terms and sittings, order of business, rules of debate including provisions regarding disorderly conduct and the suspension of members, divisions and voting, committees, official reports and the various stages of Bills which pass through its chamber. As can therefore be seen, neither when examined individually, or when viewed overall, is there any indication, even in the most general sense, that disciplinary matters arising out of expenses would normally or naturally fall within their purview or remit.

  579. In this context I wish to state that no issue arises in this case, as to what the constitutional position would be if by standing orders, the House could and did make provision for expenses and/or for a disciplinary process as has been made by the 1938 Act and the 1995/2001 Acts, respectively. That simply does not arise and accordingly I expressly reserve my opinion until, if and when such circumstances should arise.

  580. My conclusion is further supported by the enactment of the 1995 Act and the 2001 Act which establish the legislative basis upon which each constituent step of this process was taken. In proceeding solely by legislation which confers rights on third parties, who are neither members of either House nor employees in the public service, the House cannot rely, in respect of matters thereby covered, on Article 15.10. There is therefore no constitutional immunity which prevents the Court reviewing the operation of such statutory provisions. Cane v The Right Honourable the Lord Mayor [1927] I.R. 582 is and remains good authority in this regard. Consequently, on this basis also I would reject the submission made on behalf of the respondents.

  581. There is a further ancillary reason which supports the conclusion which I have reached. In my view it must be doubtful whether the question of expenses was ever intended to be covered in “rules and standing orders” as envisaged in Article 15.10. By express constitutional provision the remuneration of the Chairman and Deputy Chairman of each House must be determined by law (Article 15.9). Equally so, the payment of allowances and travel expenses, as in this case, to each member of the House must be provided for by law (Article 15.15). Indeed there are further provisions of the Constitution which expressly require legislation in respect of the raising and deployment of public expenditure (Articles 17, 20, 21 and 22). Consequently, it may well be that all matters in respect thereof should more properly be dealt with by legislation or regulation, rather than by rules and standing orders. It is therefore likely that this is also a reason why provision has not been made in the standing orders of the House, to cover such expenses.

  582. Finally, in an overall context it is worth quoting the following passage from Mr. David Gwynn Morgan in The Separation of Powers in the Irish Constitution (Dublin; Round Hall; 1997) at p. 224 which was cited with approval in Maguire at p. 419

  583. Thus, the conclusion which one can draw, provisionally, is that where no legislation is involved, the courts have no compunction about exercising jurisdiction to enforce the Constitution or other rules, in regard to the affairs of the Dáil or Senate. In expressing this conclusion, in the language of the separation of powers, one should recall that, theoretically, as was explained above in Chapter 3, separation might exist in respect of the (legislative) organ or of the (legislative) power. It appears that from what has been said already, in Ireland, it does not exist to protect the legislative organ, at any rate, when it is not exercising its legislative power.

    I respectfully agree.

  584. On the second ground upon which the justiciability issue was argued, I would entirely agree with the views of the learned High Court judge and would reject at first instance any suggestion that the Court would be incapable of reviewing the political judgment or ethical standard element of s. 4, because of some intrinsic disability on its part or otherwise. Conduct which may bring a profession, organisation, grouping or entity into disrepute is an issue which falls to be determined in a variety of ways, virtually on a daily basis by the courts. If the standard, wherever it sits, can be appreciated by the reasonable man or woman, as is acknowledged, it is very difficult to see how the courts could be regarded as being so inept to that end. I therefore consider this submission as made in this regard, to be unsustainable.

  585. In conclusion, for the above reasons I would reject the appeal on the justiciability issue.

    PART B

  586. The Application for Judicial Review:

    Summary of Background:

  587. Having determined the justiciability issue in the manner in which I have, and noting that as a result, the constitutional guarantee and safeguards, as specified inter alia, in Article 40 of the Constitution apply, it now becomes necessary to consider the substance of the judicial review application itself.

  588. In this section I have continued using the same names, terms, abbreviations, definitions, etc. as used in “Part A” of this judgment.

  589. In broad terms as previously stated, the applicant seeks to have the Report of the CMI and the Resolution passed by Seanad Éireann quashed on a variety of grounds. These include allegations, that: the Report contains an error of law, and was arrived at in breach of fair procedures and natural justice; that in failing to apply or apply correctly, or alternatively in misapplying the Department’s definition, the applicant’s legitimate expectation in having his “normal place of residence” determined in accordance with its terms was breached; that irrelevant matters were taken into account; and that by reason of certain conduct, both occurring within the inquiry and external to it, the findings and determinations so made were tainted by bias.

  590. The High Court judge found in favour of the applicant regarding the error of law and fair procedures points but dismissed the claim based on legitimate expectation, irrelevant considerations and bias. He also found that by substituting a “political judgment” for what should have been a quasi-judicial determination, the investigation, Report and Resolution were thereby rendered ultra vires the jurisdiction conferred by ss. 8 and 9 of the 1995 Act. Although a defendant/respondent on whom a notice of appeal has been served is not required to cross-appeal, he should, in due compliance with O. 58, r. 10 of the Rules of the Superior Courts, give notice to the other party if he wishes to contend that the judgment under appeal should be varied. No such notice was given in this case. Accordingly I do not propose to consider the grounds of challenge which the High Court has rejected.

  591. It should be noted, so as to avoid any degree of curiosity, that the basis of the irrelevant materials point has no bearing on any of the matters which I am about to address.

  592. The context in which these issues must be considered can be stated briefly, but the following summary should be read in conjunction with the more substantive outline of the background which is explored early in this judgment. In particular, reference should be made to paras. 9 to 20 (supra).

  593. Central to this aspect of the case, at least from the applicant’s point of view, is the content of the letter which he received from Members’ Services on the 2nd October, 2008. This letter was sent, because on a review of the applicant’s claim for expenses it was noticed that he had described his West Cork address as his “current principal residence”, whereas the phrase contained in the statute is one’s “normal place of residence for the time being” (s. 4 of the 1938 Act). The letter of the 2nd October, “[f]or ease of reference”, went on to detail the advice which the office had received from the Department of Finance in 1994 – which it in turn had received from the Attorney General – regarding how a member might correctly apply this formula. The applicant was asked, “.... for the avoidance of doubt and for absolute certainty for future audit purposes ....”, to certify that West Cork was such a residence. By return, Mr. Callely confirmed that by reference to this definition (“the Department’s definition” as per para. 13 supra), West Cork constituted his “normal place of residence for the time being”. Therefore he continued to make claims on that basis but with the variations above noted (para. 12 supra), until the events giving rise to the Committee’s investigation, occurred.

  594. Those events were triggered by two complaints received by the Clerk of the Seanad on or about the 2nd June, 2010. In essence both complaints alleged that by claiming expenses on the basis of his West Cork address, the applicant, who at the time was said to be living in North Dublin, was guilty of misrepresentation and falsification in that regard. The members of the public who made the formal complaints requested that same be investigated.

  595. In substance, the applicant alleges that by furnishing the Department’s definition, the respondents were informing him, by express representation, that his normal place of residence could and would be classified accordingly. This, he claims, the CMI subsequently failed to do or else misapplied its terms.

  596. In addition, it is submitted that the Committee had no power to find a contravention of s. 4 of the 2001 Act, without first determining that West Cork was not his normal place of residence. This again it is said, they failed to do, and certainly did not do so by reference to the Department’s definition. Instead it appears that on quite an erroneous basis, the CMI proceeded with its investigation and reached a conclusion that, by reason of certain matters listed in the Report, the applicant was more “link[ed]” with his Dublin address than with his southern address. This did not constitute a finding as required by law, and in any event the vague, uncertain and non-specific test of “linkage”, could not form a sufficient legal basis to sustain the adverse findings so made against him.

  597. The second matter noted arises out of the statement of contravention which was served on him; such statement, it is claimed, was anchored on the misrepresentation allegation. On any reasonable reading of the document, the grave nature of the charge centred on that point. It was that issue, that was notified to him: that he endeavoured to meet and that he addressed in both his prepared statement submitted to the Inquiry and and in the oral evidence given thereto. In the belief that such was to be determined by reference to the Department’s definition, he says that he focused his entire response on explaining the reasons for, and the basis upon which he made, his decision as to where his normal place of residence was, from time to time.

  598. The applicant goes on to say that he was never notified of any change in the definition or on the key importance of the alleged misrepresentation, either by letter or by any amendment to the statement of contravention, or as equally significant, by any member of the Committee during the course of the investigation. As a result, given the manner of the Committee’s deliberations, its findings and Report, he was denied fair procedures and natural justice, which denial, also fatally undermines the validity of the Resolution, adopted by the Seanad.

  599. The respondents, in reply, raise a number of issues which, to some at least, might seem surprising. In the first instance it is argued that the CMI was not determining whether the applicant improperly claimed expenses by means of misrepresenting his “normal place of residence”, within the meaning of s. 4(1)(c) of the 1938 Act and the associated 1998 Regulations. Rather the Committee was determining whether the submission of claims by the applicant constituted a “specified act” within the meaning of s. 4(1)(a) of the 2001 Act. Consequently, such was an assessment of due compliance with “political ethics” and on that basis also involved an evaluation of the “propriety” of the applicant’s conduct.

  600. The respondents further claim that, even if the Committee was determining whether the applicant had misrepresented his “normal place of residence”, it was not obliged to rely upon the Department’s definition of 1994, even though that had been communicated to the applicant by letter of the 2nd October, 2008. In fact, and in any event, it was asserted that such interpretation of the phrase, was both erroneous and ultra vires the 1938 Act.

  601. A series of formal denials followed in respect of the error of law and the fair procedures points. In conclusion, it is submitted that neither the Report nor the resultant Seanad Resolution were legally infirm.

  602. Essentially, the above constitutes the live aspects of the judicial review issues, which I now propose to deal with.

  603. Right to Fair Procedures:

  604. The situation therefore was that, following complaint, the CMI established an inquiry to investigate a charge against the then Senator, Mr. Callely, who was being accused of serious wrongdoing, potentially resulting in devastating consequences for him. A person in such circumstances is entitled to invoke the State’s guarantee under the Constitution (Article 40.3.1) that, “as far as practicable”, it will by its laws protect, safeguard and vindicate his personal rights, his good name and his property rights, with resort of course being available to the courts, if necessary to that end. Likewise, such a person is entitled to expect that, in any investigation to which he is subject, the process by which it is conducted will adhere to fair procedures and uphold constitutional justice, in a manner demanded by the circumstances. In short, the entire process is subject to the overriding principles of constitutional justice and fair procedures.

  605. In furtherance of these constitutional rights, Ó Dálaigh C.J. in In re Haughey [1971] I.R. 217, at p. 263 of the report, described in a very well known passage, “the minimum protection” necessary for the applicant, as he appeared before the Dáil Committee at issue, as including:

  606. (a)

    that he should be furnished with a copy of the evidence which reflected on his good name;

    (b)

    that he should be allowed to cross-examine, by counsel, his accuser or accusers;

    (c)

    that he should be allowed to give rebutting evidence; and

    (d)

    that he should be permitted to address, again by counsel, the Committee in his own defence.

    These specific safeguards would of course have to vary or alter depending on circumstances.

  607. A further extract from the judgment of that Chief Justice should be added: it was endorsed in the following terms by Keane C.J. in Maguire (p. 549 to 550):

  608. In a frequently quoted passage, the learned Chief Justice said at p. 264:-

    Article 40, s. 3 of the Constitution is a guarantee to the citizen of basic fairness of procedures. The Constitution guarantees such fairness, and it is the duty of the court to underline that the words of Article 40, s. 3 are not political shibboleths but provide a positive protection of the citizen of his good name. [The Committee's procedures] while valid in respect of witnesses in general, in this instance, would, if applied in the circumstances of this case, violate the rights guaranteed to Mr. Haughey by the provisions of Article 40, s. 3 of the Constitution.

  609. Quite frequently one finds that such rights are usually provided for in the constituent statute(s) which of course, in the instant case, are the 1995 and the 2001 Acts. Pursuant to s. 32(6)(b) of the 1995 Act the applicant was served with a document which according to the subsection must contain a statement of “the contravention of this Act alleged” (the “statement of contravention”). The purpose of such a document seems quite clear: it is to set out the essential ingredients of the accusation being levelled against the member concerned, so that he can readily see what he is facing. Armed with this information, he then has an opportunity of preparing whatever defence may be available to him. The section goes on to confer on the person, the right to present his case before the Committee, which includes giving evidence and calling witnesses, the testing by cross-examination of evidence against him, the making of submissions etc., and the entitlement of being legally represented, if he so wishes. Nothing turns on the rights last mentioned in this case.

  610. The statement of contravention was also required by the section to identify any witness(es) whom the CMI proposed to call and to set out the nature and source of any information which the Committee had which might be useful either to the member in question or relevant to the subject matter of the investigation.

  611. Statement of Contravention:

  612. The statement of contravention as furnished in this case, contained the following, in what can be regarded as being its operative part:

  613. The two complaints relate to allegations that Senator Ivor Callely misrepresented his normal place of residence for the purposes of making claims for allowances. The allegations are such that they may give rise to contravention under the Acts if it is determined that the act or omission complained of, or the circumstances of which, is a specified act (within the meaning of [s.] 4 of the Standards in Public Office Act 2001) and is determined to be inconsistent with the proper performance by a member of the functions of the office of member or with the maintenance of confidence in such performance by the general public and the matter is one of significant public importance.

    Meaning of s. 4 of the 2001 Act:

  614. As is immediately apparent, the statement asserted that in the circumstances which it outlined, s. 4 of the 2001 Act may have been breached. That section reads:

  615. 4.

    (1)

    Where a person (“the complainant”) considers that—

    (a)

    a specified person or a person who, in relation to a specified person, is a connected person may have done an act or made an omission after the commencement of section 2 that is, or the circumstances of which are, such as to be inconsistent with the proper performance by the specified person of the functions of the office or position by reference to which he or she is such a person or with the maintenance of confidence in such performance by the general public, and the matter is one of significant public importance,

    ....

    ....

    the complainant may make a complaint in relation to the matter ....

  616. The term “specified act” is defined in Schedule 1 of the 2001 Act as meaning “an act or omission referred to in [s.] 4(1)(a) of the Act of 2001 and references to the doing of a specified act include references to the making of such an omission ....” In this judgment an “act or omission” and “specified act” have the same meaning and are used interchangeably.

  617. Prior to the existence of s. 4, a member of the Oireachtas had certain statutory obligations in that he/she was obliged to furnish a statement of “registrable interests” to the Clerk of their House within a specified time (s. 5 of the 1995 Act), and was also obliged, in any proceedings in which he/she proposed to speak or vote on a matter in respect of which he/she had “a material interest”, to declare such interest (s. 7 of the 1995 Act). Any breach of these requirements could form the subject matter of a complaint under s. 8 of the 1995 Act, which in turn might lead to the Committee conducting an investigation in respect thereof.

  618. Section 4 of the 2001 Act placed a further obligation on members, in that it prohibited conduct of a certain type, which if committed could also give rise to a complaint by any person, again under s. 8 of the 1995 Act. Upon the making of such complaint, the existing mechanism under the 1995 Act would also apply to its determination. Although the subject matter of the s. 4 prohibition is not referred to in that section as a “specified act”, such a phrase is as I have stated, to be found elsewhere, namely in Schedule 1 to that Act.

  619. On any reading of s. 4 it seems to me that there must firstly exist some “act or omission” which if committed, might have one or more of the “consequences” specified in the section. In addition, the circumstances in which the act or omission takes place, may likewise be considered, even though the definition of “specified act” does not expressly include circumstances. The “consequences” of which I speak, are that the act or omission in question, may be viewed as either being inconsistent with; (i) “the proper performance” by the person in question of the position held by him or her, in this case that of Senator; and/or with (ii) the “maintenance of confidence” by the general public in such performance, and in either situation, the matter is regarded as being of significant public interest. In the interests of brevity I propose to describe these factors as constituting “the political criteria”.

  620. In my view therefore there are two essential ingredients within the section, first the requirement that a “specified act” has been committed and second the application to that act, of the political criteria. Unless and until both steps have been satisfied I fail to see how a conclusion could be reached, that a breach of its provisions has occurred.

  621. It is very difficult to see how the section could be construed or operate, in the absence of some “act or omission” having been committed. The application of what I have described as the political criteria, which others have termed a “political judgment” or a judgment based on “political ethics”, would otherwise have no meaning and would become quite ineffectual: evidently this type of judgment must have a subject or reference point to which it applies, as obviously the criteria cannot find an application in the abstract. In effect, it is the act or omission which feeds the test, activates its application and which ultimately may lead to a s. 4 breach.

  622. This point can be looked at in another way. Let’s assume that the statement of contravention makes no mention of a preceding “act or omission”; if this were the case it must be asked to what, in such circumstances, could the ethical standard apply? What could be condemned or exonerated? Indeed how could the standard itself be set or formulated? In respect of what activity or conduct could a member’s action be found to have been flawed, inappropriate or substandard, or how and why could public confidence be said to have been undermined? In my view the existence of a “specified act” is critical to the operability of the section. It follows therefore that if the act or omission asserted against a member is not established, his/her conduct must be exonerated and a violation of the section cannot be found.

  623. I do not believe that this analysis is in serious dispute: in fact this is exactly how the Committee, when framing the statement of contravention, saw the section as operating. This appears evident from the manner in which the statement is structured. It therefore becomes necessary to see what was the preceding act or omission, alleged against the applicant.

  624. Misrepresentation at Centre of Charge:

  625. The statement of contravention (para. 179 supra) opened, by making reference to the two complaints which had been received from members of the public. It then specifically stated that those complaints “relate to allegations” that the applicant “misrepresented his normal place of residence for the purposes of making claims for allowances”. The only possible interpretation in my view of this statement, giving the words their plain, ordinary and unambiguous meaning, is that the issue of “misrepresentation” is at the centre of the allegations.

  626. The statement went on to say that “[t]he allegations” are such as “may” give rise to a breach of s. 4 of the 2001 Act and specified how that might occur, by pointing out that such allegations, presumably if established, may be viewed or determined as being inconsistent with the proper performance of the applicant’s function as a Senator or with the maintenance of public confidence in what is expected of such person, and in either one or both of these circumstances, may be considered a matter of significant public importance. On the basis of any interpretive approach I cannot view that part of the statement otherwise, than as making the question of misrepresentation central to the allegations. Thus the terms of the statement of contravention clearly set the assertion of misrepresentation as a prerequisite, which if established, would feed into a consideration of whether, in addition, the same could be regarded as having breached the political criteria as mentioned, and thus give rise to a contravention of the section.

  627. The applicant says that he understood the accusation which he faced, that being the charge as outlined in the statement of contravention, in a manner reflective of the interpretation just given. Though not decisive in any way, as the test for determining what he should have understood the accusation to be, is an objective one, it is nonetheless of interest to see if Mr. Callely’s subsequent behaviour was consistent, with this stated position.

  628. Immediately on receipt of the statement of contravention, the applicant drafted an outline of his response which was intended to form part of his evidence before the Committee. That evidence appears instructive as to his understanding of the charge levied against him; its entire tenor was directed towards explaining when, for how long and over what period, he resided in West Cork, and how, because of changing personal circumstances, he came to reside, on occasions throughout this period, in Dublin. In addition, what is immediately apparent is his particular focus on the Department’s definition, by reference to which, he sought to explain the location of where he regarded his normal place of residence to be, from time to time.

  629. Of further significance is the absence of any reference whatsoever to the possibility of the Committee using a definition of “normal place of residence” other than that which the Department had supplied. Rather, in the statement, he endeavoured to set out the periods in which he resided principally in Cork or Dublin, the reasons why such varied, and the efforts made to change his chosen allowance option, although due to the rigidity of the system he was unable to do so. Therefore, working on the basis of the Department’s definition, he submitted the claims in a manner which he considered at all times to be duly compliant with the underlying scheme.

  630. The Public Hearing Before the Committee:

  631. The matters above mentioned are referred to solely for the purpose of demonstrating what the applicant’s understanding was, of the charge which he faced. These are not decisive but are indicative.

  632. The structure and form of the investigation itself, does offer further insight into an understanding of what the inquiry was focused on. At the commencement of the public hearings, and after the applicant had read into the record his prepared statement, Senator O’Toole offered the first intervention and either by question or statement, addressed the applicant as follows (p. 14, Day 1 of the transcripts):

  633. .... if he would understand this, that what we are looking at here is really to recognise that there is a question of public confidence as well as the private issue. The question of where Senator Callely travelled from to the House and the private reasons for that are not the business of this [C]ommittee and we do not need to go into that in the sense of the private aspects of his life and so on.

    The member then set out what the Committee’s task was, namely to establish (ibid):

    first of all, whether there was a contravention and secondly whether that contravention was inadvertent, whether it was negligent, whether it was reckless or whether it was intentional. These issues are important. For us then we have to look at the public issue on this.

    A short time later he continued (at the same page):

    Can you recognise the problem that creates in terms of public credibility for us, for the House, and that it is an untenable situation for us?

  634. The reference to inadvertence, negligence, etc. is reflective of what the Committee must include in its Report per s. 10 of the 1995 Act and nothing turns on those remarks. However what is quite notable is that, aside from a few passing reiterations of the problem which the House faced, no other effort, of any substance or import, was made by any member of the Committee or indeed by the Committee itself, to state, to clarify, or to elaborate for the applicant, the nature of the charge which he was facing and which was then under active investigation; much less to indicate that its understanding of what the charge entailed was considerably different to the manner in which it was being addressed by the member concerned. I therefore cannot read anything of significance into Senator O’Toole’s remarks.

  635. Senator White’s Intervention:

  636. In the closing stages of the inquiry another member of the Committee, Senator Alex White intervened; he stated the following (p. 65, Day 3 of the transcripts):

  637. There is a whole myriad of factors that point to Clontarf rather than [W]est Cork, notwithstanding that the [W]est Cork house does satisfy, literally, the definition that is in the Act.

    What I am putting to you is this: what do you say to the prospect that the [C]ommittee might decide or might be saying, ‘Look, yes, in terms of the letter of the law [W]est Cork satisfied the definition but for somebody in public life, for a [m]ember of the Oireachtas to opt, as it were, to claim expenses in respect of that address rather than the address that he would appear to be very, very substantially associated with is exploiting an imprecise definition that exists, and that is wrong. It is not acceptable’. That is the sort of thinking, certainly, that I have at the moment and I have not come to a final conclusion on it. It is only fair that I should say that to Senator Callely so you can address that before we finish.

  638. Notably however, the next time that the applicant was called upon to speak was to make his final statement. He did not directly address the essence of the last intervention in that statement, the resounding tenor of which was a repetition of what he had previously stated. Correctly or incorrectly he does not appear to have alluded to what might be described as possibly, a significant shift in the essence of the accusation standing against him.

  639. A number of observations should be made about Senator White’s intervention. Firstly, this was a view of one member of the Committee, and not of the Committee itself. Secondly, it would of itself, have been entirely insufficient to have materially altered the core basis of what the “specified act” would be for the purposes of s. 4: here was a possible suggestion that even though the applicant’s conduct could technically be within the Department’s definition, nonetheless, the Committee might find a breach of the section. Thirdly, the suggestion, if adopted, would have involved an accusation based on circumstances entirely different to those which formed the basis of the statement of contravention, which still stood in its original terms. Fourthly, and at a minimum, such a highly important change would have to be brought to the attention of the applicant in some very clear and definite way and certainly in a manner which conveyed its significance to him: that intervention could not be said to have achieved this purpose. Fifthly, if that approach was to be pursued, the correct procedure would have been either to abort or at least to adjourn the inquiry and to have served an amended statement of contravention on the applicant. Even however if those steps could have been avoided, the applicant, at a minimum would have to have been afforded an opportunity to consider the variation and to address its substance at some further hearing. Finally, and in any case, the possibility raised by Senator White, was suggested far too late in the process.

  640. For these reasons I do not believe that this intervention could be considered an adequate forewarning to the applicant, that a contravention finding may be possible, even if his conduct was duly compliant with the Department’s definition. In any event, the Committee, in its findings and determinations did not make such a finding nor did it make any reference to this possibility. Consequently, and in the circumstances, this intervention cannot be regarded as being in any way decisive.

  641. The Findings:

  642. The Committee went on to make the findings as contained in its Report. In para. 1 it determined that the applicant “has done a specified act as contemplated by [s.] 4 of the 2001 Act by misrepresenting his normal place of residence for the purpose of claiming allowances”. It went on to say that such action was inconsistent with the proper performance of his role as a Senator, was likewise inconsistent with the maintenance of public confidence in that role and that the matter was one of significant public importance. In answering the questions as required of it by s. 10 of the 1995 Act, the Committee continued by finding that the “specified act” was continuing, was done intentionally, was of a grave and serious nature, and that in so doing, the Senator had not acted in good faith. The determination then stated that the findings which I have referred to were arrived at having considered all of the evidence and having come to the view that, “on balance”, the weight of the facts as listed, “link[ed]” the applicant to his Dublin rather than his Cork address.

  643. Of interest is the observation of the Committee recorded on p. 9 of its determinations where it said:

  644. The Committee believes that the expenses regulations would benefit from a clearer and more robust definition of ‘normal place of residence’. In the interest of maintaining public confidence in the Houses the Committee would recommend that this matter is addressed.

  645. The Committee in its opposition papers sought to further explain some of its findings and to outline the activity which it says, it was truly engaged in. Its position on these matters is set out in paras. 26, 170 and 171 above and therefore requires only the briefest of mention here. In essence it said that it determined that the applicant committed a “specified act” but did not determine that he had misrepresented his normal place of residence for the purpose of expense claims. It further said that it was not obliged to apply the Department’s definition which was ultra vires the 1938 Act. Quite strikingly however, it did not go on to say what impact this submission might have, on the fair procedures point.

  646. The Misrepresentation at the Centre of the Finding:

  647. The first aspect of this submission, though technically couched in language which reproduces that which is contained in s. 4 of the 2001 Act, seems to make a distinction, without effect, on the misrepresentation issue. As outlined previously, an essential feature of a s. 4 breach is that the member concerned is found to have committed an “act or omission”, namely a “specified act”. Such a finding in my view is an essential component required by the section. In this case, the “specified act”, by express declaration in the statement of contravention, was stated to have been the applicant’s misrepresentation as to his address for the purposes of the expenses claims. Therefore, the Committee had to consider and make a finding on that issue. If it failed to do so or if its overall conclusion was somehow reached on political or ethical grounds only, I would entirely agree with the learned trial judge that in so doing, it would have acted ultra vires its powers (p. 719 of the High Court judgment). I doubt very much however if that is what the Committee actually did or even intended to convey in its submission.

  648. In para. 1 of its findings (para. 201 supra) the Committee states that the Senator, Mr. Callely, had done a “specified act” by “misrepresenting his normal place of residence ....” This, at least to me, seems definitive on the point and in fact, is also entirely consistent with what the section demands. Neither in the evidence nor in the submissions can I find what otherwise, the respondents say, was the act or omission which they found the applicant to have committed. It is entirely confusing to equate the doing of a “specified act” with a breach of the section. It is not: it is simply the commission of the “act or omission” alleged (paras. 183 and 184 supra). In any event, I do not understand how it could be said that, as part of an inquiry into a s. 4 breach, the Committee was not making a finding on this matter. I therefore reject their submission in this regard.

  649. Definition of “Normal Place of Residence”:

  650. The second aspect of this submission which is twofold in nature is that the Department’s definition is not only erroneous as a matter of law but is in fact ultra vires s. 4 of the 1938 Act and as a result the Committee was justified in disregarding and/or disapplying its terms. I find this, as a purported answer to the fair procedures point, to be wholly unconvincing and quite extraneous, it therefore has no impact or influence on my conclusion on that issue. There are several reasons for this.

  651. In the very context of a concern regarding Mr. Callely’s compliance with s. 4 of the 1938 Act and the 1998 Regulations, the Members’ Services section of Seanad Éireann drew his attention to what the correct basis for claiming expenses was and issued the 2nd October, 2008 letter so that, by reference to its terms, due compliance with the statutory requirements could be achieved. At no stage thereafter, until the statement of opposition was filed, was it ever suggested to the applicant that he had been misled by Seanad Éireann in that regard and that, as the Department’s definition was erroneous, he would be breaking the law in following it.

  652. At pp. 718 to 720, in particular paras. 93 and 96 of his judgment, the learned High Court judge recalled the unequivocal and unchallenged evidence, given by Mr. Dignam to the Committee, to the effect that for the purposes of allowances the working definition was that issued by the Department, which still applied in 2008 (the Department’s definition). He also confirmed that such was communicated to the applicant and applied by him. Despite an extensive search I cannot find any suggestion made by any member of the Committee during the course of the investigation which could cast doubt on the applicability of this definition, much less that such should be entirely disregarded. In fact, Senator White’s intervention was clearly premised on the continuing use of that definition (para. 197 supra).

  653. Furthermore, there is no indication in its findings and determinations that the Committee ever informed Mr. Callely of its intention to disapply this definition and to use an alternative in its place. Even though the reference to “linkage”, which appears to have been applied in finding that the Senator had committed a misrepresentation, is highly dubious, nonetheless, I cannot find any statement, clear or otherwise, from which it could be inferred that the Department’s definition was being stood down and that some unidentified, unexplained, novel and as yet unannounced substitute, was being applied.

  654. In fact one wonders how the Committee could ever have arrived at any alternative definition without high level consultation with many interested parties and without seeking and obtaining legal advice. More so, if by such extraordinary circumstance it had, it is difficult to see why, in its Report, it called for the creation of a clearer and more robust definition. In these circumstances it is very difficult to give credence to the submission that, the Committee deliberately disregarded the Department’s definition, because of some concern about its vires. If such was done, it is scarcely credible that in its Report it would not have referred to it.

  655. Ultra Vires Point:

  656. In any event, I do not think that whether the Department’s definition is or is not technically within s. 4 of the 1938 Act is relevant to this issue. At all times and in all material circumstances, the charge was framed to allege misrepresentation in the manner indicated, which, given the letter of the 2nd October, 2008, and the evidence of Mr. Dignam, was always intended to have been determined by reference to that definition. As on no occasion was the contrary ever stated or implied, it would be a gross affront to fair procedures to permit the respondents to resile from their obvious position, and to answer this allegation by relying on the ultra vires assertion. To do so would at least require the Committee to have forewarned Mr. Callely of its intention and to have done so in a time and in a manner which would have afforded him an opportunity of responding. That did not occur. Therefore, as the applicant was led to believe that a central issue in this investigation would be determined on the Department’s definition, and since it is now accepted that his actions fell within such definition, I do not believe that the findings and determinations of the Committee can be allowed to stand, as to do so, would be contrary to natural justice and fair procedures.

  657. The conclusion which I have reached can be summarised as follows:

    1. Section 4 of the 2001 Act requires a finding that a “specified act” has been committed. That act, as alleged, is to be found in the statement of contravention, which describes it as involving a misrepresentation by the applicant of his normal place of residence. The only yardstick ever suggested by which that issue could be determined, was the Department’s definition.

    2. If the Committee did in fact apply that definition, their conclusion on a s. 4 breach cannot stand, in light of the belated concession that the expense claims were within that definition. As such, the evidence could not have properly established that a “specified act” had been committed.

    3. If the Committee applied some test in substitution for the Department’s definition, it was obliged to inform the applicant of its intention to do so and to afford him a timely opportunity to respond: this it did not do.

    4. If the Committee failed to make any determination on the misrepresentation allegation, it follows that an essential requirement of the section, namely, the doing of a “specified act”, was never established.

    5. Whichever of these may be correct, the finding that s. 4 of the 2001 Act was breached, cannot be justified.

    6. The suggestion that the Department’s definition is ultra vires s. 4 of the 1938 Act cannot effect this conclusion, particularly in light of the “political criteria” element of the section.

  658. In arriving at this conclusion, I am far from saying that it could not have been asserted against the Senator that, even if compliant with the Department’s definition, his behaviour otherwise was such as could amount to a s. 4 breach. Whether such an assertion could have been sustained is not the point.

  659. It is undoubtedly the case that the Committee had ultimate control over what activity it would specify as constituting the “specified act”, provided of course that the essence of the public complaints were included. That left open the possibility of accepting that the expense claims as made, fell within the Department’s definition, but that nevertheless the behaviour of the member concerned and the circumstances of its occurrence, were such as could amount to a “specified act” and could thereby give rise to a s. 4 breach. A further possible alternative which could have been adopted is that, irrespective of whether the expense claims were or were not within that definition, the conduct of the applicant likewise fell to be considered. However, neither of these possibilities grounded the allegation against Mr. Callely. A decision was made to centre the misrepresentation allegation at the heart of the charge levelled against him. Having made that decision, the respondents must abide by its consequences.

  660. In these circumstances, I am satisfied that the learned High Court judge was correct to uphold the applicant’s claim in respect of fair procedures and natural justice.

  661. By reason of this conclusion it is unnecessary in my view to determine what has been described as the error of law point, which is, whether or not the Department’s definition fell within s. 4 of the 1938 Act. If necessary such must await another day.


all rights reserved