Supreme Court allows judicial review of Seanad committee disciplinary actions under Constitution and Ethics Act.

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 Murray delivered the 9th day of April 2014.

1. 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.

Justicability

2. “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.)

3. 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.

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

5. “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).

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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”.

12. 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.

13. 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:

“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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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))

20. 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:

“… 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

21. 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.