Supreme Court dismisses appeal upholding Seanad Committee's finding of expense fraud against Senator Callely.

[2014] IESC 26

THE SUPREME COURT

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) and Committee on Members’ Interests of

Seanad Éireann,

Respondents/Appellants

JUDGMENT of Mr. Justice Hardiman delivered on the 9th day of April, 2014.

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”.

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.

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.

Overview.

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.

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.

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.

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.

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.

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.

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.

Concessions.

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

“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.

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.

The detail of the allegations, and findings, against Mr. Callely is fully explored below, at paras 17 to 42. 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.

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.

Background.

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.

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.

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

“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.

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.

A query to Mr. Callely.

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)

The office pointed out that:

“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”.

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:

“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.

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:

“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.

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.

The allegation against Senator Callely.

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:

“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”.

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”:

“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”.

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.

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.

The finding against Senator Callely.

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

“(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.

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.

The Committee’s Defence.

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.

The Concession.

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

“(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.

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.

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.

The Committee’s argument on appeal.

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

that:

“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.

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:

“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.

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.

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.

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.

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:

“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.

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.

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”.

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”.

Summary of the competing claims.

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.

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.

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.

A preliminary objection.

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.

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

“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. 69 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.

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.

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:

“‘tearing asunder’ the provisions of the Constitution by adjudicating upon this application (para. 63).”

because the Court had no jurisdiction in the matter.

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

“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:

“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.” (ibid, par 44) (Emphasis supplied)

And:

“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.” (ibid, par

50)

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.

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

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.

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

provides:

“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.

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:

“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.

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.

At p. 424, the Divisional Court held:

“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.

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”.

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.

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.

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.

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.

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.

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.

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:

“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”.

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:

“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.

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

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.

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:

“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.

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”.

Article 15.10 is introduced by the phrase:

“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.

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:

“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”.

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.

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”.

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.

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

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:

“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.

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

“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”.

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.

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”.

At s.392 of Bennion’s Code he says:

“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.

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.

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:

“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.

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

“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”.

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

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

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.

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.

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.

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

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:

“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.

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.

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:

(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.

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.

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.

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.

Conclusion on the justiciability issue.

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

The merits of the case.

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.

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.

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)

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. 33 to 40 above. For present purposes I need only quote

the Committee’s own words in relation to the complaints against Mr. Callely:

“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. 41 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.

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

“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.

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”.

The office had pointed out to him that:

“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. 22 to 25, above.

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. 24.

Moreover, it is quite clear (see para. 26) that Mr. Callely in his response of the same date adopted the statutory phrase and the

Department of Finance definition of it.

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:

“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. 41 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”.

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.

The Committee’s response.

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

“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. 57 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.

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

“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)

This passage is quoted in full at para. 49, above.

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.

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.

The argument just summarised is dismissed with reasons in para. 49, 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:

“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”.

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

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