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THE SUPREME COURT [Appeal No: 069/2011]

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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 Joint Judgment of Mr Justice O'Donnell and Mr Justice Clarke delivered the 9th of April, 2014. I Introduction 1. At one level this appeal concerns questions about the payment of expenses to a member of the Oireachtas and the procedures followed by an Oireachtas Committee in considering allegations arising out of such payments. At another level this appeal raises very important questions about the separation of powers and, in particular, the entitlement of the courts to review disciplinary decisions made by the Houses of the Oireachtas in relation to their own members. 2. The background to these proceedings starts with a public controversy which emerged in the middle of 2010. Suggestions were made of impropriety in the way in which the respondent (hereinafter “Senator Callely”) made claims for expenses. In late May and early June, formal complaints in writing were made by members of the public which were ultimately referred to the Committee on Members Interests of Seanad Éireann (although it is not clear that this is a juristic body). The first to seventh named appellants (hereinafter “the Committee”) are the members of the Committee who conducted hearings during June and July of 2010 and ultimately determined that Senator Callely had misrepresented his normal place of residence for the purposes of claiming such expenses. The Committee found that this action was inconsistent with the proper performance by Senator Callely of the function of his office as a Senator and was inconsistent with the maintenance of confidence in the performance by Senator Callely of his functions as such. The report of the Committee containing those findings is entitled “Report of the Results of an Investigation into Complaints Concerning Senator Ivor Callely” (hereinafter “the Report”) and is dated the 14th July 2010. 3. Thereafter, on the 14th July 2010, Seanad Éireann passed a resolution (hereinafter “the Resolution”) which, having referred to the Report, censured Senator Callely and resolved that he be suspended from the House for a period of 20 days and that his salary not be paid during the time when he was so suspended. 4. Senator Callely sought an order of certiorari quashing the Report and certain other consequential relief in the High Court and was successful. The Committee and the Seanad have appealed to this Court against that decision. 5. In the course of the proceedings before the High Court, an issue was raised on behalf of the Seanad and the Committee to the effect that it was inconsistent with the separation of powers as recognised in the Constitution for the courts to seek to quash either the Report or the Resolution. For the reasons set out in his judgment, Callely v. Moylan & Ors [2011] 1 I.R. 676, O’Neill J. rejected that argument. In addition, O’Neill J. held that the procedures which led to the conclusions in the Report and thus, to the consequences determined on in the Resolution, were unfair to the extent that both of those measures should be quashed. Both sets of issues remain alive on this appeal. Against that background, it is appropriate to start by referring to the procedural history. Procedural History 6. On the 6th September 2010, Senator Callely applied for leave to seek judicial review. Ryan J., to whom the original application was made, adjourned the hearing until the following day to enable him to read the papers. At the resumed hearing, counsel representing the Committee and the Seanad applied to be allowed address the court notwithstanding the fact that, in accordance with ordinary practice, the application for leave was being moved ex parte. The principal point addressed at that stage on behalf of the Committee and the Seanad was the suggestion that Senator Callely was precluded, on separation of powers grounds, from seeking to quash the Report and the Resolution. In the light of those issues being raised, Ryan J. directed that there be a so-called telescoped hearing at which both the application for leave and, if appropriate, the full application would be heard together. 7. In that fashion the case ultimately came to be heard before O’Neill J. who delivered his judgment on the 14th January 2011. 8. It should also be noted that the appeal before this Court took place in two phases. The hearing as originally listed proceeded in the ordinary way to a conclusion. However, while the court was considering the issues raised, it was determined that the matter be re- listed for further hearing directed particularly to the question of the relevance, if any, of Article 15.12 of Bunreacht na hÉireann to the separation of powers issues which arise in this case. 9. Against that background, it is next necessary to turn to the issues which arise on this appeal. The Issues 10. As already noted, there is a key issue as to whether the High Court was correct in concluding that the courts have jurisdiction to entertain an application to quash a report or a resolution of the type arising on the facts of this case. 11. Assuming that the courts have such jurisdiction, further issues arise as to whether, on the merits, it can be said that the High Court was correct to hold, as it did, that the Committee and Seanad Éireann acted ultra vires by failing to exercise their respective adjudicative functions in an appropriate manner by making what was said to be a political judgment on the issues in the investigation thereby allegedly breaching Senator Callely’s constitutional right to natural justice and fair procedures. 12. In addition, the question of whether the High Court was correct to hold that the Committee had misconstrued the term “normal place of residence”, as that term is used in the legislation and the regulations governing the payment of expenses, also arises. The Legislation and the Regulations 13. Section 4(1)(c) of the Oireachtas (Allowances to Members) Act 1938 (hereinafter “the 1938 Act”) creates an expenses regime to allow Senators to recoup costs incurred in travelling to the Seanad. Section 4 in relevant part provides: “The travelling facility to be granted to each member of the Oireachtas under this Act shall be- . (c) in the case of a member of Seanad Éireann, travelling facilities between Dublin and his normal place of residence for the time being.” At the time of the events in this case, the applicable rate of payment was provided for in the Oireachtas (Allowances to Members) (Travelling Facilities and Overnight Allowances) Regulations 1998 (S.I. No. 101 of 1998) (hereinafter “the Regulations”). Regulation 4 provided an option to members residing more than 15 miles from Dublin. Such members could either opt for a daily allowance or a travel allowance based on mileage and an overnight allowance. Pursuant to regulation 5, a senator exercising the option under regulation 4(b) could do so “once and once only for each relevant period in respect of which the member is entitled to an allowance under that paragraph” and must notify the Clerk of the Seanad of that choice in writing. 14. The Ethics in Public Office Act 1995 (hereinafter “the 1995 Act”) creates a statutory regime aimed at regulating the proper conduct of designated persons including members of the Oireachtas. Its provisions were amended by the Standards in Public Office Act 2001 (hereinafter “the 2001 Act”). Under s. 8 of the 1995 Act, each House was required to establish a select committee with responsibility for investigating complaints. In the case of the Seanad, this committee is known as the Committee on Members' Interests of Seanad Éireann, and is the Committee for the purposes of this litigation. The 2001 Act extended the matters which such a committee could investigate to specified acts. A “specified act” is defined in s. 4(1)(a) of the 2001 Act by reference to a person having: “done an act or made an omission after the commencement of section 2 that is, or the circumstances of which are, such as to be inconsistent with the proper performance by the specified person of the functions of the office or position by reference to which he or she is such a person or with the maintenance of confidence in such performance by the general public, and the matter is one of significant public importance.” Section 10(1) of the 1995 Act requires that where a relevant committee carries out an investigation in relation to a specified act, a report of the results should be prepared, and, if that report concludes that a contravention has occurred, such report must be laid before the relevant House. 15. Section 28 of the 1995 Act, as amended, governs the actions to be taken by a House once a report has been laid before it. Under s. 28(1), the relevant committee shall; “if it considers it appropriate, having regard to all the circumstances of the case … cause a motion to be moved in that House for a resolution that such action or actions specified in subsection (2) as may be specified in the resolution and is or are reasonable in all the circumstances be taken by that House in relation to the matter.” Those actions, under subsection (2), include: “(a) the taking note by the House concerned of the report of the Committee, or the report
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