Seanad disciplinary committee decision allowed on judicial review due to lack of specific standing orders.

THE SUPREME COURT

Appeal No: 069/2011

Denham C.J.

Murray J.

Hardiman J.

Fennelly J.

O'Donnell J.

McKechnie J.

Clarke J.

Between/

Ivor Callely

Applicant/Respondent

and

Pat Moylan, Dan Boyle, Frances Fitzgerald, Camillus Glynn, Denis O'Donovan, Joe O'Toole, and Alex White

(Members of the Select Committee on Members' Interests of Seanad Éireann), Committee on Members' Interests of

Seanad Éireann and Seanad Éireann

Respondents/Appellants

JUDGMENT of Mr. Justice Fennelly delivered the 9th day of April 2014.

1. 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.

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

3. 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.

4. 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.

5. 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.

6. 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.”

7. 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.

8. 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.

9. 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.

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

“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.”

11. 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.

12. 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:

“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.” (Emphasis added: inserted by the Act of 2001).

13. 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.

14. 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.

15. 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.

16. 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.