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 of the Commission, concerned, (b) the censuring of the office holder or other member concerned by the House, (c) the suspension of the office holder or other member concerned from the service of the House— (i) for such period not exceeding 30 days on which the House shall have sat as may be specified in the resolution concerned ….” In addition, subsection (2A) provides: “(2A) (a) Notwithstanding subsection (4), where the action specified in a motion for a resolution under subsection (1) is or includes that specified in subsection (2)(c), it may also, subject to compliance with the conditions specified in paragraph (b), include the withholding from the office holder or other member concerned of so much of the annual sum by way of salary payable to him or her under the Oireachtas (Allowances to Members) Act, 1938 , as may be specified in the resolution. (b) The conditions referred to in paragraph (a) are: (i) that the Committee concerned is of opinion that the act or contravention to which the motion relates was done or made intentionally and was of a grave nature, (ii) that the withholding is reasonable in all the circumstances, (iii) that the amount of the annual sum specified in the resolution does not exceed the amount thereof payable in respect of the period of suspension from the service of the House concerned specified in the resolution.”

16. It is clear that what is contemplated by s. 4(1)(a) of the 2001 Act as a contravention is an act (called a “specified act”) which is inconsistent with the proper performance by a relevant office holder of their office or is such as would undermine the maintenance of confidence in such office. The precise breadth of that provision might be a matter of some legitimate debate. It is argued on behalf of the Committee and the Seanad that the section contemplates acts which are not directly in breach of any specific rule or regulation but which, to use a colloquial term, might be said to be such as would “bring politics into disrepute”. The disciplinary rules of many organisations from sporting or cultural bodies to representative bodies of professions include provision to like effect although not always expressed in exactly the same language. 17. The question of the breadth of s. 4 provides a backdrop to one of the issues which was debated at the hearing of this appeal. Indeed, it might be said that it lies at the heart of Senator Callely’s complaint. As already noted, the question of the proper definition of place of residence for the purposes of claiming expenses is one of the issues between the parties. It will be necessary in due course to say something briefly about published advices on that question which were available at the time when Senator Callely made his expenses claims. However, one of the points made on behalf of the Committee at the appeal in this Court is that the Committee were entitled to conclude that it was an abuse of the expenses system for Senator Callely to claim travelling and overnight expenses based on having an ordinary residence in Cork when he was not actually travelling from Cork to Seanad Éireann and was not staying overnight in Dublin without having a residence available to him in Dublin during the relevant period. It is argued that such remains the case even if it was technically open to Senator Callely to make a claim in accordance with the Regulations because of the meaning of the term “ordinary place of residence” in the 1938 Act. Put another way, the Committee argues that even if Senator Callely was technically entitled, to claim travel and subsistence expenses based on having an ordinary residence in Cork, his reliance, it is said, on that technicality to claim expenses which were never going to be incurred was the type of act which, in the words of s.4, is inconsistent with proper performance of his office and the maintenance of public confidence in the performance of that office.

18. It should also be noted that Senator Callely resisted that argument on a number of bases. First, he argued that the case which was brought against him before the Committee was not one which in substance involved an allegation of bringing politics into disrepute by claiming expenses to which he was technically entitled but which, it might be said, went against the spirit of the expenses regime, but rather was a case in which it was alleged that he was in actual breach of the expenses regime. Second, he says that it was not made clear at the hearings of the Committee that the Committee was considering the possibility of making an alternative finding of bringing politics into disrepute. Third, he argues that the Report of the Committee does not make it clear that he was not in breach of the expenses regulations themselves and was only found to have acted in contravention of what is required by s. 4 by virtue of a finding that he had, although technically correct, claimed expenses in circumstances that would bring politics into disrepute. Indeed, in a forceful argument, his counsel strongly suggested that, had the Report of the Committee been confined to a finding of that latter type, it might well have been the case that Senator Callely would not have sought to challenge the Report at all. 19. Against that background, it is next necessary to turn to the facts. The Facts 20. By letters dated the 31st May 2010 and the 2nd June 2010 complaints pursuant to s. 8 of the 1995 Act were received by the Clerk of the Seanad. These letters were referred to the Committee and, on the 3rd June 2010 the Committee concluded that there was sufficient evidence to potentially sustain a complaint and that it would carry out an investigation. As required by s. 32(6)(b) of the 1995 Act, a statement of contravention was provided to Senator Callely. It stated: “Two complaints from members of the public have been referred to the Committee on Members Interests of Seanad Éireann under the provisions of s. 8 of the Ethics in Public Office Act 1995 (as amended by the Standards in Public Office Act 2001) (“the Acts”). The two complaints relate to allegations that Senator Ivor Callely misrepresented his normal place of residence for the purpose of making claims for allowances. The allegations are such that they may give rise to contravention under the Acts if it is determined that the act or omission complained, or the circumstances of which, is a specified act (within the meaning of s. 4 of the Standards in Public Office Act 2001) and is determined to be inconsistent with the proper performance by a Member of the functions of the Office of Member or with the maintenance of confidence such performance by the general public and the matter is one of significant public importance.”

21. A public hearing was carried out over three days, being the 25th June 2010, the 30th June 2010 and the 13th July 2010. Evidence was given by Senator Callely on the 25th June and the 13th July explaining the various changes in his circumstances over the previous three years. He explained that prior to his appointment to the Seanad by An Taoiseach in August 2007 he had changed his principal residence to Kilcrohane, Bantry, County Cork, despite retaining a home and constituency office in Dublin. This was, he said, communicated by him in December 2007 on making his first expenses claim. Claims for expenses were then made based on travelling from Cork between the 3rd August 2007 and the 1st September 2008. 22. On the 2nd October 2008 the Members’ Services (the office in the Oireachtas that deals with allowances for Members) wrote to Senator Callely: “I note from your letter of December 2007, that you have stated that the House at Kilcrohane, Bantry, County Cork, is your ‘current principal residence’. However, for avoidance of doubt and for absolute certainty for factual and audit purposes, I would be grateful if you could certify, in writing, that this house in Bantry was ‘your normal place of residence for the time being’ for the period of the claim. This is the statutory provision used in s. 4(1)(c) of the Oireachtas (Allowances to Members) Act 1938, for payment of such expenses. For ease of reference, the term ‘normal place of residence’ has been defined by the Department of Finance in previous correspondence as ‘what is involved is a premises which, though not necessarily one’s permanent and principal abode, is used for a period which is both of some length and for a purpose which is not ad hoc and goes beyond mere shelter in passage such as a few nights in a hotel’.” Senator Callely replied: “. . . as already advised, my personal situation has changed since June 2007, as per my previous communication in December 2007. I can confirm that my residence in Kilcrohane is my normal place of residence for the time being, though not necessarily one’s permanent and principal abode at all time. It is the residence from which I received my appointment to Seanad Éireann . . .” The Department of Finance definition referred to in the above correspondence appears to emanate from advice provided by the Attorney General in 1987. Senator Callely sought to place emphasis on this advice during his testimony to the Committee on the 13th July 2010. 23. It is argued by Senator Callely that his normal place of residence, as that term is used in the 1938 Act and, in particular, as interpreted in the advices to which reference has been made, was in fact Cork. On that basis it is argued that the Committee were guilty of a misinterpretation of the law.

24. In any event a nil claim was submitted for the period between the 1st September 2008 and the 31st December 2008. Claims were subsequently made on the basis of travelling from Cork for periods between the 1st January 2009 and the 2nd October 2009. A nil claim was then submitted for the remainder of that year. Senator Callely claimed on the same basis, i.e. travelling from his Cork residence, for the period from 1st January 2010 to 28th February 2010. By a letter of 2nd April 2010 Senator Callely returned, by cheque, a sum being the March portion of his travelling and overnight allowances. 25. Senator Callely had enquired about changing the basis for his allowance to the daily allowance in June 2009 but had been told that only one election could be made in a calendar year and that he had elected to make his claims on the travel and allowance basis. This enquiry was made on the basis that Senator Callely had been spending more time than previously in Dublin. This was said to be due to “evolving personal, domestic and professional circumstances.” On 16th December 2009 Senator Callely again wrote to the Members’ Services Office and said the following: “As stated in my last letter of 30th November, I would prefer ‘my travel to reflect my actual and/or to be vouched to reflect actual expenses’. I understand a new expenses system will be introduced shortly, but will not be retrospective. In order to reflect travel between my Kilcrohane and Dublin abode and the expenses incurred, I wish to indicate that my claim, up to August 2008 is my last claim for 2008, I am claiming for eight months only in 2008, and I do not intend to claim for September, October, November or December 2008, as I feel this best reflects my particular situation.

I await the new expenses system and do hope it will accommodate my position.” 26. On 14th July 2010 the Committee issued the Report of the Results of an Investigation into the Complaints concerning Senator Ivor Callely. The ‘Findings and Determinations’ section stated the following: “1. The Committee determines that Senator Ivor Callely has done a specified act, as contemplated by s. 4 of the 2001 Act, by misrepresenting his normal place of residence for the purpose of claiming allowances. The Committee finds that such action was inconsistent with the proper performance by Senator Callely of the function of the office of Senator, was inconsistent with the maintenance of confidence in the performance by Senator Callely of the function of the office of Senator by the public, and was of significant public importance. 2. The Committee determines that the aforementioned act on the part of part of Senator Callely is continuing. 3. In order to cease the specified act, the Committee determines that Senator Callely, in conjunction with the relevant authorities, take account of the findings of this report and regularise and make good his allowance affairs and cease to misrepresent his normal place of residence. In this context, the Committee records Senator Callely’s clear undertaking given in the evidence on 25th June, 2010, that he would ‘reimburse’ or ‘repay’ any overpayment of allowances. 4. The Committee determines that the specified act on the part of Senator Callely was done intentionally. 5. The Committee determines that the specified act on the part of Senator Callely in all of the circumstances was of a serious and grave nature. 6. The Committee determines that Senator Callely did not act in good faith, having regard to all the circumstances. In making all of these determinations and findings, the Committee took into account all of the evidence before it, and on balance, agreed that the weight of all the facts taken together, including but not limited to the facts that Senator Callely:- • Describes his residence as his family home; • Maintains a Constituency Office in Dublin which has regular weekly opening hours and at which Senator Callely advertises on his website that he is available to attend Mondays, Wednesdays and Fridays; • Represents on his website that he is continuing to work in the Constituency in Dublin North Central and that he continues to live in Dublin North Central; • Has directed the Seanad to send his post to his family home in Clontarf; • Used his family home in Clontarf for the purposes of receiving post in relation to his Ministerial pension;

• Uses his family home in Clontarf for the purpose of correspondence with the Revenue Commissioners; and • Was registered to vote in Dublin. link Senator Callely to his family home in Clontarf rather than to Kilcrohane, County Cork. The Committee is strengthened in its conclusion by the fact that Senator Callely entered nil claims for September, October, November and December 2008 and 2009, and has not cashed certain cheques in 2010. The Committee believes that the expenses regulations would benefit from a clear and more robust definition of “normal place of residence”. In the interest of maintaining public confidence in the Houses, the Committee would recommend that this matter is addressed.” 27. It recommended the following actions be taken against Senator Callely: “(a) that the Seanad note this report of the Committee; (b) that the Seanad censure Senator Callely, and (c) that the Seanad suspend Senator Callely from the service of the Seanad for a period of twenty days on which the Seanad shall have sat. Considering the Committee has determined that, in its opinion, the specified act on the part of Senator Callely was done intentionally and was of grave nature, and considering it reasonable in all the circumstances, the Committee would recommend that the Seanad also resolve to withhold from Senator Callely so much of the annual sum by way of salary payable to Senator Callely under the Oireachtas (Allowance to Members) Act 1938, during the period of the twenty days suspension.” The recommended resolution was passed by the Seanad on the same day. The Proper Approach 28. It is clear that what might be termed the ordinary judicial review issues which arise in this case can only be addressed if this Court has constitutional jurisdiction to entertain a challenge of the type brought by Senator Callely in these proceedings. If the Court should determine that the separation of powers express and inherent in Bunreacht na hÉireann do not permit such a challenge, it seems to us that it would be wholly inappropriate to comment in any way on the merits or otherwise of Senator Callely’s challenge. For those reasons it is important to turn first to the question of the separation of powers and the justiciability of the issues sought to be raised by Senator Callely.

II

Justiciability 29. This case self-evidently raises extremely important issues in relation to the separation of powers. As Binnie J. observed in Canada in Canada (House of Commons) v. Vaid: [2005] 1 S.C.R. 667 at para. 4: “There are few issues as important to our constitutional equilibrium as the relationship between the legislature and other branches of the State on which the Constitution has conferred powers, namely the executive and the courts.” It is an important part of the principle of government by separation of powers that it falls to the least powerful and dangerous branch to define the proper area of functioning of each of the branches of government. In entrusting this task to the judicial branch, the Constitution places considerable trust in the courts to identify and maintain the proper areas of activity of each branch including their own. But the obligation to respect the legitimate sphere of activity of each branch of government is not reserved to the judiciary. It applies equally to each of the other branches. As McLachlin J. observed in New Brunswick Broadcasting v. Nova Scotia (Speaker of the House of Assembly) [1993] 1 S.C.R. 319 at p. 389: “It is fundamental to the working of government as whole that all these parts play their proper role. It is equally fundamental that no one of them overstep its bounds, that each show proper deference for the legitimate sphere of activity of the other.” 30. The High Court (O'Neill J.) allowed Senator Callely's claim and made an order quashing the report concerned together with certain consequential orders. The Committee and Seanad Éireann have appealed against that decision to this Court. Before the High Court there were two main areas of controversy. The first concerned the extent to which it was permissible for the courts, in exercise of the judicial power under the Constitution, to review a report of a House of the Oireachtas or a committee thereof. It was argued on behalf of the Committee and Seanad Éireann that such issues were non-justiciable. Second, on the assumption that the relevant issues were justiciable, there was a dispute as to whether, on the facts and the law, there had been an error of law or a breach of Senator Callely's entitlement to a fair process. 31. Senator Callely succeeded in the High Court on both areas of controversy. The Committee and Seanad Éireann have appealed to this Court suggesting that the trial judge was incorrect both in so far as he held that the relevant issues were justiciable and, even if this Court were to find the issues to be justiciable, in holding that there was any error of law or lack of fair procedure such as would justify quashing the report. 32. The finding of justiciability plainly raises very important questions and it is to that issue that we first turn. In order to fully understand the question which this Court must now address under that heading, it is important to set out the argument made in respect of justiciability before the High Court and the findings of the trial judge in that regard. The Argument in Favour of Justiciability 33. It is first appropriate to note the terms of Article 15.10 of the Constitution which is in the following terms: “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.” 34. The argument on justiciability proceeded, at different times, on what might be described as a “narrow basis” or a “broad theory”. 35. The argument, on the narrow basis, drew attention to the fact that the consideration of the Committee was either exclusively or largely conducted under legislation rather than, it was argued, on foot of “rules and standing orders” so that, it was said, whatever immunity from judicial scrutiny might be conferred in respect of the imposition of penalties for breach of rules or standing orders as a result of Article 15.10, could not apply. 36. The broad theory, on the other hand, which appears to have been accepted in the High Court, is to the effect that the proceedings of the Committee, even if conducted pursuant to standing orders and explicit rules, would nevertheless have been reviewable at the suit of a member because of the assertion that his constitutional right to reputation may be affected by the finding. Thus at para. 47 of the High Court judgment it is said: “It would seem to me that the boundary between exclusive roles of the Oireachtas, on the one hand, and the High Court on the other, appropriately respecting the separation of powers principle, does not exclude access to the courts where a member of the Oireachtas, in circumstances such as those of the applicant in this case, seeks the protection of the Constitution in vindicating his constitutional right to his good name and to natural justice and fair procedures.” In addition, at para. 70 the trial judge went on to say the following: “[A] consideration of the subject matter of this investigation…and also a consideration of the nature of the investigation…lead, in my view, as will be discussed hereunder, to a conclusion that investigations of this type are not within the exclusive realm of the Oireachtas, so as to oust the jurisdiction of the courts under Article 15.10.”

37. The constitutional significance of this conclusion is considerable. Hitherto it had been assumed (and as we shall see, not least by a series of decisions of the Superior Courts) that there was an area of activity within the legislative branch of government that was beyond judicial review even if the precise boundary of that area was a matter of debate. However, if this broader view holds sway, then the words of one commentator are apposite: “The proceedings of the Houses vis-à-vis their own members are quintessentially the precise forum contemplated by Article 15.10, they arise in a context closely proximate to the conduct by the Houses over their own business and order, and there are strong arguments of policy as to why the Houses should exercise an exclusive and final authority over matters of their own internal discipline. Indeed, if a Deputy or Senator can mount a challenge of this kind to an internal decision of the Houses, one wonders what – apart from Oireachtas housekeeping such as the Order of questions and administration of debate – is actually consigned exclusively to their jurisdiction by the provision (and therefore, at all).” (see Brian Murray, SC, “Judicial Review of Parliamentary Proceedings and Procedures Under the Irish Constitution” in Carolan & Doyle eds., The Irish Constitution: Governance and Values, (Dublin; Thomson Round Hall; 2008 at p. 147,179). Thus, a fundamental issue that has to be addressed is whether there is any area of exclusive competence of the Oireachtas and therefore non-justiciability, and if there is, its theoretical basis and the basis on which it can be said not to apply in the present case. It seems to us that in truth, it must be accepted that the logic of the broad theory means that there is no area, or virtually no area, of non-justiciability. We propose therefore to address the broad theory first, before considering whether the decision in favour of Senator Callely could be justified on the narrow ground. Indeed, the narrow argument can only properly be addressed against the background of the determination of the broader question of what the separation of powers entails as a matter of principle. Discussion on Broad Theory 38. It is important to start by noting the fundamental constitutional architecture provided for in Article 6.1 of the Constitution. All government power is said to be broken down into the legislative, executive and judicial powers which powers in turn are to be exercisable only by organs of State established by the Constitution. As Ó Dálaigh C.J. pointed out in In Re Haughey [1971] I.R. 217 (p. 250), “the Constitution of Ireland is founded on the doctrine of the tripartite division of the powers of government”. The same judge had previously, in Melling v. Ó Mathghamhna [1962] I.R. 1 (p. 39), referred to that tripartite separation of powers as having “express limitations on the powers alike of legislature and executive over the citizen”. It might be added in this context that the principle imposes limitations on the extent to which any branch can interfere with another. 39. Thus, the tripartite division of power requires an analysis of what can properly be said to form part of the respective legislative, executive or judicial powers contemplated by Article 6. To some extent that division stems from the inherent nature of those respective powers. However, the express terms of the Constitution provide some further definition of the separate roles of the respective organs of State. In addition it is important to recall, as was pointed out by O'Donnell J. in Pringle v. Ireland [2012] IESC 47, that, as he put it at para. 17:

“[I]t is perhaps noteworthy, as the late Professor Kelly was wont to observe, that the form of separation of powers adopted in the Irish Constitution was not the hermetically sealed branches of Government posited by Montesquieu, but rather involved points of intersection, interaction and occasional friction between the branches of Government so established. Thus, by way of illustration only, the Executive appoint the Judiciary and the courts rely on the Executive to execute their judgments; the courts for their part review the acts of both the Legislature and the Executive for compatibility with the Constitution; and the Executive in turn is accountable to the Dáil and in practice commands it; and the members of the Government are required to be drawn from the Legislature. In the architecture of the 1937 Constitution therefore, the respective branches did not exclude each other entirely.” Thus there is a separate question which arises once a particular power has been allocated to a specified organ of Government. That question is as to the extent, if any, which the Constitution permits any role for either of the other organs of government in the area concerned.

40. It is necessary to address at this point an objection that might in other circumstances have considerable, even dispositive, force. It is said that the principle of non-justiciability of proceedings in the Oireachtas is not referred to explicitly in the Constitution, and therefore does not exist. Adapting the words of McCarthy J. in The Attorney General v. Hamilton [1993] 2 I.R. 250 it is “the positive argument – if it’s not there it isn’t so” (p. 285). That argument cannot however have much, if any, impact here. First, the respondent’s argument in the High Court, and the High Court judgment, accept the principle that there is some area of non- justiciability. The literalist objection therefore has as much (or as little) force in relation to that argument, as to the respondent’s contention. Indeed, an important question that must be addressed if the respondent’s argument is to be accepted is the theoretical justification for the area of non-justiciability except, and an explanation why it does not extend to the claim here. 41. Second, the principle of separation of powers while fundamental must itself be deduced from the language and structure of the Constitution. As is observed in J.M. Kelly: The Irish Constitution (Dublin; Tottel Publishing; 4th Edition; 2007) (p.108) Article 6 of the Constitution while often rhetorically invoked as the basis of the principle of separation of powers, merely describes, rather than prescribes, the principle. The nature of the separation of powers required under the Irish Constitution, therefore, must be deduced from the terms of the constitutional text, the constitutional structure, and the functions of government envisaged by it.

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

“Conceptually … the policy underlying the independence of the judiciary is best regarded as a component, indeed in practice far and away the most important component, of the separation of powers.” (p. 10) In the landmark case of Buckley v. Attorney General [1950] I.R. 67, the High Court and Supreme Court held that the power of the legislature to make laws did not extend to enacting legislation which sought to determine the outcome of litigation then before the courts. This was so notwithstanding what appeared to be the substantial body of legislation which was made since the coming in to of existence of the State, which was advanced in argument by counsel for the Attorney General. A case, which was the simplest of actions known to the law - an ex parte application for the payment out of funds - established a major constitutional principle. In the High Court Gavan Duffy J. stated: “I assume the Sinn Fein Funds Act, 1947, under which this application is made, to have been passed by the Legislature for excellent reasons and as a matter of course, and give to the Oireachtas all the respect due to the legislative assembly of the nation; but I cannot lose sight of the constitutional separation of powers. This Court can, in deference to an Act of the Oireachtas, abdicate its proper jurisdiction to administer justice in a cause whereof it is duly seized.” (p. 70)

In the Supreme Court, O’Byrne J. observed that:

“The manifest object of this Article [Article 6] was to recognise and ordain that, in this State, all powers of government should be exercised in accordance with the well-recognised principle of the distribution of powers between the legislative, executive and judicial organs of the State and to require that these powers should not be exercised otherwise.” (p. 81) Accordingly, he concluded that:

“The substantial effect of the Act is that the dispute is be determined by the Oireachtas and the Court is required and directed by the Oireachtas to dismiss the plaintiffs claim without any hearing and without forming any opinion as to the rights of the respective parties to the dispute. In our opinion this is clearly repugnant to the provisions of the Constitution, as being an unwarrantable interference by the Oireachtas with the operation of the Courts in a purely judicial domain.” (p. 84) The important obligation of the legislature to refrain from exercising its power to make law which would have the effect of determining the outcome of litigation then before the court was to be deduced from the principle of the separation of powers.

43. In The Attorney General v. Hamilton, the court considered a claim to cabinet confidentiality, itself not expressly stated in the Constitution. Finlay C.J. stated:

“The doctrine of the separation of powers under the Constitution has been identified by this Court as being both fundamental and far reaching, and has been set out in various decisions of this Court in very considerable detail. Yet, it undoubtedly flows from Article 6 of the Constitution … The identification of the doctrine of the separation of powers is based on a necessary interpretation of the consequence of these two somewhat terse sections of the Constitution. It is particularly derived from the opening phrase in Article 6.1: “All power of government, legislative, executive and judicial” and it has led to a very rigid division of rights and responsibilities between the three organs of State, and has led to the necessary categorisation of State activity as falling within one or other of these three separated areas. Elaborate principles of the relationship between the three organs of State have flown from this doctrine. The development of the doctrine of the separation of powers, without any express provision in the words contained in Article 6, or in any other provision of the Constitution to designate it, seems to me to justify a development of the claimed confidentiality for discussions at Government meetings for the provisions dealing with collective responsibility and collective activity.” (pp. 267-268) In the same case O’Flaherty J. said:

“So we are called upon to recount again the place of each of the three essential organs of State: legislative, executive and judicial. I believe that each must respect the sphere of influence of the other so that the essential symmetry of the separation of powers which is inherent in Article 6 of the Constitution is preserved.” (p. 299)

The provisions of Article 28.4.3 adopted in the aftermath of this decision while providing for specific limitations on the extent of cabinet confidentiality nevertheless make express provision for the principle. There are also other examples of the influence of the principle of separation of powers. The presumption of constitutionality afforded to the Acts of the legislature and executive is one example. On the other hand the provisions of Order 56 of the Standing Orders of the Dáil limiting commentary on matters before the courts, is perhaps an example in another context. It is not necessary or desirable to attempt a full account of the manner in which the principle applies. It is sufficient for present purposes to observe, that the principle of separation of powers, however difficult to ascertain and delimit in particular circumstances, is a necessary and fundamental component of the Constitution, to be deduced from the structure and language of the Constitution itself. 44. It is against that background that it is necessary to turn to Article 15. Of course, Article 15.2.1 provides that the sole and exclusive power of making laws for the State is vested in the Oireachtas. The primary legislative function is just that - making laws. The judicial power is, of course, given a role in relation to legislation in that the Constitution expressly confers on the High and Supreme Court a jurisdiction to determine whether laws are consistent with the constitution and, if not, by declaring inconsistency, the power to render the laws invalid. Thus while legislating is the primary and exclusive constitutional function of the Oireachtas it is subject to a measure of judicial control.

45. But it is clear from a reading of Article 15 as a whole that the constitutional role of the Oireachtas is not confined solely to law making. For example over and above the business of legislation, Article 15.6 confers an exclusive right to raise and maintain military or armed forces on the Oireachtas, war cannot be declared or participated in without the assent of the Dáil (28.3.1), members of the Oireachtas have a representative function (see e.g. Article 16.2.1) and members of the Dáil have a function in holding the Government to account (28.4.1). A useful list of the very differing roles and functions of the Oireachtas, and members of the Oireachtas, as contained in the judgment of McGuinness J. in Maguire v. Ardagh [2002] 1 I.R. 385, pp. 612-615. It is apparent therefore, that the proper role and function of the Oireachtas, and members of the Oireachtas, cannot be limited to the business of the consideration and passage of legislation, important though that is. The Text of the Constitution 46. There are a number of particular provisions of Article 15 that deserve consideration in the present context. Article 15.10 has already been quoted above, and provides: “Each House shall make its own rules and standing orders, with power to attach penalties for their infringement, and shall have power to ensure freedom of debate, to protect its official documents and the private papers of its members, and to protect itself and its members against any person or persons interfering with, molesting or attempting to corrupt its members in the exercise of their duties.” Article 15.12 provides:

“All official reports and publications of the Oireachtas or of either House thereof and utterances made in either House wherever published shall be privileged.” Article 15.13 states:

“The members of each House of the Oireachtas shall, except in case of treason as defined in this Constitution, felony or breach of the peace, be privileged from arrest in going to and returning from, and while within the precincts of, either House, and shall not, in respect of any utterance in either House, be amendable to any court or any authority other than the House itself.” Finally, Article 15.15 provides:

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

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

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

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

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

In Canada (House of Commons) v. Vaid the Canadian Supreme Court had to consider whether a claim by a chauffeur dismissed by the speaker of the legislature was within parliamentary privilege. The test applied was that certain privileges of parliament could be upheld although not referred to explicitly in either the 1982 Charter or the Constitution Act of 1867, if they could satisfy a test of necessity, which it was for the courts to determine. Distinguishing sharply between the application of parliamentary power to outsiders, and decisions made by parliament affecting its own members, the court held that the claim of the chauffeur was not captured by parliamentary privilege, but a matter related to discipline of members would be. At para. 46 Binnie J. said: “In order to sustain a claim of parliamentary privilege, the assembly or member seeking its immunity must show that the sphere of activity for which privilege is claimed is so closely and directly connected with the fulfillment by the assembly or its members of their functions as a legislative and deliberative body, including the assembly’s work in holding the government to account, that outside interference would undermine the level of autonomy required to enable the assembly and its members to do their work with dignity and efficiency.” Binnie J. also stated:

“In my view, the references to dignity and efficiency and also linked to autonomy. A legislative assembly without control over its own procedure would, said Lord Ellenborough CJ almost two centuries ago, “sink into utter contempt and inefficiency” (Burdett v. Abbot (1811), 14 East 1, 104 E.R. 501, at p. 559) “Inefficiency” would result from the delay and uncertainty would inevitably accompany external intervention. Autonomy is therefore not conferred on Parliamentarians merely as a sign of respect but because such autonomy from outsiders is necessary to enable Parliament and its members to get their job done.” (para. 29) At para. 29 the same judge included among the categories of privilege required by such necessary autonomy “disciplinary authority over members”. At paras. 20-21 he said: “It would be intolerable, for example, if a member of the House of Commons who was overlooked by the Speaker at question period could invoke the investigatory powers of the Canadian Human Rights Commission with a complaint that the Speaker’s choice of another member of the House discriminated on some ground prohibited by the Canadian Human Rights Act, or to seek a ruling from the ordinary courts that the Speaker’s choice violated the member’s guarantee of free speech under the Charter. These are truly matters “internal to the House” to be resolved by its own procedures. Quite apart from the potential interference by outsiders in the direction of the House, such external intervention would inevitably create delays, disruption, uncertainties and costs which would hold up the nation’s business and on that account would be unacceptable even if, in the end, the Speaker’s rulings were vindicated as entirely proper.

Parliamentary privilege, therefore, is one of the ways in which the fundamental constitutional separation of powers is respected.” 50. This analysis has clear echoes in the Irish constitutional context. Morgan in The Separation of Powers in the Irish Constitution (p. 222) observed that although there is no express provision in the Constitution akin to that of the Bill of Rights 1689 providing that proceedings in Parliament ought not to be impeached in any court, the same result may be reached by the principle of the separation of powers. The constitutional provisions in the Irish Constitution were “mainly concerned about protecting individual members”. However, the author posed the question:

“Does not the separation of powers bar the courts from intervening in the operation of the Oireachtas? For if one examines the policy underlying the law on historic development of parliamentary privilege – the policy of the freedom of parliament from intimidation or even influenced by: the King, the King’s court; the mob; the press; or any other agency which might interfere with the untrammeled discourse of public representatives – one finds a substantial overlap with the separation of institutions aspect of the separation of powers.” The same author observes that the courts have distinguished carefully between whether or not the case involves an exercise of the legislative power. The foregoing analysis suggests therefore that disciplinary action of the Houses of the Oireachtas in respect of its members is within the constitutional function of each House. 51. A further observation arising from a consideration of the provisions of Article 15 is that there appears to be a sharp conflict between the reliefs sought by the respondent in these proceedings and the terms of the Constitution. Thus, the first two reliefs sought by the respondent’s statements of grounds were in the following terms:

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

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

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

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

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

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

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

55. But even apart from this point, Articles 15.12 and 15.13 are also relevant to the question of the interpretation of Article 15.10 and the separation of powers more generally. Any theory that the internal operation of a House of the Oireachtas dealing with its own members must be justiciable because the constitutional right to a good name of a member may be affected, must explain how the Constitution could contemplate such justiciability when it expressly protects from legal action of any sort, any individual utterance by a member, and any collective report by either House. 56. This leads to a further important observation about the provisions of Articles 15.10, 12, 13 and 15. It was apparent that those provisions combined to place the Houses of the Oireachtas and the members for the time being thereof, in a distinct and special legal position. Like other provisions of the Constitution, they operate to place citizens in a position where they are conferred with additional powers, responsibilities and functions, and on occasion subject to additional liabilities. Thus, for example, the President takes precedence over all over citizens under Article 12.1 but is also subject to significant restrictions in respect of his or her right to travel (Article 12.9) and free speech (Article 13.7.3) and shares with judges appointed under the Constitution a restriction on engaging in other offices of emolument, which does not apply to ordinary citizens (Article 12.6.3). In the case of members of the Oireachtas, they have very significant privileges in respect of their individual and collective utterances, and are given significant exemption from criminal law in the shape of privilege from arrest. At a minimum therefore it should not be surprising if the law attaching to the incidence of their membership of the most important collected body in the State, is itself distinct.

Case Law 57. It follows that the Constitution defines areas within the exclusive competence of each of the powers of government which go beyond the narrowest definition of those powers and includes areas which are either inherently part of the function concerned by virtue of being inextricably linked to that function or must properly be said to fall within the function concerned because of the terms of the Constitution itself. In that context we have no doubt but that determining travel and subsistence expenses and putting in place a regime to ensure that they are properly policed falls within the legislative power conferred on the Oireachtas. That is not, however, an end to the matter. As noted earlier, the fact that a particular function lies within the sphere of one or other organ of government does not necessarily mean that the exercise of that power may not be subject to some degree of interaction with or scrutiny by another power of government. The fact, for example, that a particular function can properly be characterised as part of the executive function conferred on the government itself does not mean that it may not be subject to review in the courts or subject to a requirement to abide by legislation properly passed by the Oireachtas, scrutinised, if necessary, for its consistency with the Constitution by the courts. While the imposition of a policing regime with appropriate penalties in respect of funding made available to members of the Oireachtas to enable them to perform their functions is clearly part of the legislative function contemplated by the Constitution, the real question which is at the core of these proceedings is whether it is a function which is exclusively conferred on the Houses of the Oireachtas or rather while conferred on the Houses, is amenable, nonetheless, to judicial review. 58. In that context it is appropriate to consider the jurisprudence of this Court concerning the extent to which it may be appropriate for one organ of government to review or have a role in the exercise by another organ of its constitutional role.

59. There are, of course, cases (to which it will be necessary to turn in due course) where it has been determined that judicial scrutiny is constitutionally mandated notwithstanding that the matter being scrutinised represents the exercise by either the legislature or the executive of their respective constitutional functions. Having concluded that the fixing of expenses connected with the performance by members of the Oireachtas of their functions and the provision of penalties for any abuse of such a system falls within the legislative power conferred on the Oireachtas (or, in the specific circumstances of disciplinary matters, by virtue of Article 15.10, on each House of the Oireachtas separately) it follows that the real question which needs to be addressed is whether the exercise of that function is one which is constitutionally conferred on the Oireachtas and its Houses in a manner which excludes interference by either of the other organs of government. In particular the question which must be addressed is whether interference by the judicial power by the exercise of judicial scrutiny is excluded. 60. Judicial scrutiny of matters occurring within the Oireachtas has, of course, occurred in the past. Most notably in In Re Haughey this Court scrutinised, on the basis of fair procedures, the conduct of a committee of inquiry within the Houses of the Oireachtas. Thus, at the level of principle, it is clear that there are aspects of the actions which may be taken by the legislature which are subject to judicial scrutiny. However, it is important, in that context, to go back to the comment of Ó Dálaigh J. in Melling v. Ó Mathghamhna which noted the limitations on the power of the legislature “over the citizen”. Judicial scrutiny was invoked in In Re Haughey by a citizen who complained about the manner in which the legislature was exercising its power over him.

61. A key difference between the parties on this appeal was the extent to which it might be said that the Constitution and the jurisprudence of the courts create a distinction between the exercise by the legislature of its constitutional power insofar as it affects, on the one hand, citizens who are not members of either House and, on the other hand, members of the Houses of the Oireachtas. That judicial scrutiny is available to a citizen who is not a member of either House and who may be subjected to aspects of the legislative power can hardly be doubted in the light of the consistent jurisprudence of this Court. The real issue of controversy is as to whether the same principle applies to the exercise of similar aspects of the legislative power over members of the Houses. 62. Prior to the decision of the High Court in this case, the position in relation to actions taken by committees of the Oireachtas in respect of members of the Oireachtas appeared to have been stated most clearly by McGuinness J. in Maguire v. Ardagh, who while commenting on the various committees of each House administering standing orders, observed at p. 629: “All these Committees, all investigations carried out by them and all penalties imposed by them (or by the Dáil or Seanad at their instigation) concern solely the members of the Oireachtas themselves. There is no doubt but that all these matters are non-justiciable in accordance with Article 15.10.” 63. However, that dictum does not, by any means, stand in isolation. There have been consistent and repeated statements that the courts will not intervene in the internal matters of the Oireachtas, at least when they do not affect the rights of non-members. If the respondent is to succeed in these proceedings, it must necessarily mean disavowing such dicta, and distinguishing, and if necessary overruling, any contrary decision. In considering the relatively extensive jurisprudence therefore, it is necessary to keep in mind the two distinctions offered by the applicants, and adopted by the High Court. First, that the decided cases did not involve any proceedings by a member of the Houses of the Oireachtas and accordingly any statements as to a distinction between the position of members and non-members are merely obiter dicta and moreover wrong. Second, it is argued that any cases or decisions tending to suggest an area of nonjusticiability did not involve the assertion of any individual personal rights of the citizen (whether member or non member), which it is argued arise in this case.

Kohn: The Constitution of the Irish Free State 64. The earliest statement of the limited nature of parliamentary privilege in Ireland is contained in Kohn’s The Constitution of the Irish Free State. His analysis has been influential and was relied on in Maguire v. Ardagh. In particular, the statement that the parliament, established by the Irish Free State Constitution, does not have the attributes of a sovereign authority which had accrued to the House of Commons during its conflict with the Crown, but rather was invested by the Constitution “with comprehensive and adequate powers to regulate its business and to maintain its authority” (p. 230) but no more, could be said to be a cornerstone of the decision in Maguire v. Ardagh which held that the Oireachtas did not have the power to conduct a fact finding inquiry which could make findings adverse to the good name of a citizen. However, that issue does not arise here. Instead the question here is of the justiciability of something which the Oireachtas undoubtedly has power to do, namely discipline its members by suspension. In our view, it is instructive therefore that Kohn appears to take the view that the Oireachtas is a master of its own internal affairs:

“Both Houses of the Oireachtas have full power to regulate their procedure by making and amending their rules on standing orders. In this sense the Irish parliament, like the English, enjoys the privilege of “exclusive cognisance of matters arising in it”. (p. 230) (Emphasis added)

This is a particularly important and general statement. It asserts the existence of exclusive cognisance of matters arising within the Houses of the Oireachtas, and thus, that such matters are not amenable to judicial review. Kohn’s work is also the earliest example of a distinction being made between the exercise of powers in respect of members and non-members. Thus, as already observed, he considered that the reference in Article 20 of the 1922 Constitution to the attachment of penalties (in identical terms to Article 15.10) was to be construed as limited to a disciplinary function over members and possibly persons disrupting business, but not more generally. This analysis was repeated in the 1967 Report of the Committee on the Constitution. This, it might be observed, is a departure from a purely literal interpretation of the provision which might suggest a broader sweep to the Article. Wireless Dealers Association v. Fairtrade Commission (Unreported, Supreme Court, 14th March 1956) 65. In this case the applicants sought the passage of legislation which if asserted would be immediately damaging to the business of the plaintiff. The claim was rejected both in the High Court and the Supreme Court. Ó’Dálaigh J., as he then was, explained the decision in that case on the basis that:

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

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

“Article 15.10 ought to be regarded as empowering the Houses of the Oireachtas to deal with internal matters of procedure and discipline only, and to punish its own members for breaches of it rules;…”. (para. 40)

This echoes Kohn’s approach. O’Malley v. An Ceann Comhairle [1997] 1 I.R. 427 67. In this case, a member of the Oireachtas had sought to raise a question relevant to the operation of an export credit scheme for beef which subsequently became a matter of significant controversy during the tribunal of inquiry to inquire into the beef processing industry. The Ceann Comhairle wrote to the applicant saying that he was disallowing part of the question as it would involve repetition in light of answers already received from the Minister. However, Order 33 of the Standing Orders of Dáil Éireann, while giving power to the Ceann Comhairle to examine every question put, only permitted him to amend any question “after consultation with the member responsible for the Question”. It thus appeared that there had been a clear breach of the provisions of standing orders. The applicant sought judicial review and was represented by distinguished counsel. However, both the High Court and the Supreme Court refused leave to seek judicial review of the decision. Barron J. in the High Court considered such a review was inappropriate having regard to the separation of powers. He considered that the exercise of the function by the Ceann Comhairle was an internal matter for Dáil Éireann itself. He also pointed out that it appeared to him that once the Dáil had been dissolved, even the right to challenge the Ceann Comhairle ceased since the affairs of that Dáil had been terminated. In the Supreme Court, O’Flaherty J. (with whom Murphy and Lynch JJ. agreed) upheld the decision of Barron J. observing:

“How questions should be framed for answers by Ministers of the Government is so much a matter concerning the internal working of Dáil Éireann that it would seem to be inappropriate for the court to intervene except in some very extreme circumstances which it is impossible to envisage at the moment. But, further, it involves to such a degree the operation of the internal machinery of debate in the house as to remain within the competence of Dáil Éireann to deal with exclusively, having regard to Article 5, s.10 of the Constitution.” (p. 431)

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

Haughey v. Moriarty [1999] 3 I.R. 1 69. In the High Court in this case, the applicant sought to demonstrate that the Seanad had been improperly convened and that past resolutions pursuant to the Tribunals of Inquiry (Evidence) Act 1921 were invalid. Geoghegan J. held that it was not permissible to consider this issue: “[I]t seemed to me that these matters were not justiciable in the courts on the grounds of the constitutional separation of powers. The Dáil and the Seanad regulate and enforce their own procedures.” (p. 16) (Emphasis added)

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

Maguire v. Ardagh [2002] 1 I.R. 385 70. The most significant case in this line of authority is Maguire v. Ardagh. It is suggested by the respondent in the present case that the decision in this case is merely a necessary extension of the decision in Maguire v. Ardagh. In order to analyse that contention it is necessary to keep in view the central issues which were raised in that important case. The fundamental issue raised by the plaintiffs in that case was their contention that, on a true interpretation of the Constitution, the powers of the Oireachtas did not extend to making inquiries having as their object the finding of facts in relation to the affairs of individual citizens. It is important to observe that this issue does not arise in this case. There is no question but that the exercise by the Seanad of powers of inquiry and, if necessary, discipline over members and in respect of matters relating in particular to allowances for travel to and from the Houses of the Oireachtas, is a matter plainly within the constitutional functions of that House of the Oireachtas. In order, however, to come to its conclusion, the court also had to address an argument raised by the Houses of the Oireachtas to the effect that proceedings in the Oireachtas were not amenable to judicial review in any way and were non-justiciable in those proceedings. While the Supreme Court upheld the claim of the applicants on the first issue by a majority, all members of that court, and the divisional court, were unanimous in rejecting the contention made on behalf of the Committee. However in doing so, all members of the court, and the High Court who addressed this issue, distinguished sharply between cases involving citizens and those involving members of the Oireachtas. 71. The divisional court (Morris P., Carroll and Kelly JJ.) held that in “…matters internal to the workings of parliament in carrying out its legislative power or alternatively in dealing with its own members” the Houses of the Oireachtas were not amendable to judicial review (p. 413). The divisional court stated:

“Whatever about the way in which parliament regulates its own members, a citizen cannot be subjected to a parliamentary process unless it is lawful, within jurisdiction and is fair.” (p. 415) (Emphasis added)

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

“That is not to say that the courts will accept every invitation to interfere with the conduct by the Oireachtas of its own affairs: such an approach would not be consistent with the separation of powers enjoined by the Constitution. Specifically, the courts have made it clear that they will not intervene in the manner in which the House exercises its jurisdiction to Article 15.10 to make its own rules on standing orders and to ensure freedom of debate, where the actions sought to be impugned do not affect the rights of citizens who are not members of the House.… : see the decision of this court in Slattery -v- An Taoiseach. It was also held by the former Supreme Court in Dealers’ Association -v- Fair Trade Commission, that the courts could not intervene in the legislative function itself: their powers to find legislation invalid having regard to the provisions of the Constitution arise only after the enactment of legislation by the Oireachtas, save in the case of a reference of a Bill by the President to this court under Article 26. Nor, in general, will the courts assume the role exclusively assigned to the Oireachtas in the raising of taxation and the distribution of public resources, as more recently made clear by this court in T. and Others -v- Minister for Education and Science and Others. … Different considerations apply however, where, as here, the Oireachtas purports to establish a committee empowered to inquire and make findings on matters which may unarguably affect the good name and reputations of citizens who are not members of either House. An examination by the courts of the manner in which such an inquiry is established in no way trespasses on the exclusive role of the Oireachtas in legislation. Nor does it in any way qualify or dilute the exclusive role of the Oireachtas in regulating its own affairs.” (pp. 537 – 538)(Emphasis added)

73. McGuinness J. seemed to expressly conclude that all actions of the Oireachtas which impinge on the rights of non-members were justiciable but that conversely, matters of internal regulation and discipline, were not. At pp. 628 - 629 McGuinness J. (in a fuller version of the passage already cited) said: “It is clear from this sub-article that, as submitted by counsel for the applicants, the Oireachtas “makes its own rules for its own members.” These rules are in the main set out in the standing orders of both Houses. Various committees of each House administer these rules and may provide for penalties for their breach. Committees such as the Committee on Procedure and Privilege and the Committee of Selection are long established and are known as standing committees. In recent years another such standing committee has been established – the Committee on Members Interests of Dáil Éireann. All these committees, all investigations carried out by them and all penalties imposed by them (or by the Dáil or Seanad at their instigation) concern solely the members of the Oireachtas themselves. There is no doubt but that all these matters are non-justiciable in accordance with Article 15.10.” (Emphasis added) The Committee in these proceedings is the Seanad counterpart of the Dáil Committee referred to.” (Emphasis added) This is perhaps the strongest statement on this issue in the judgment. It is not questioned by any other judgment and it is directly contrary to Senator Callely's submissions or the decision of the High Court. Moreover, it is consistent with the other judgments in Maguire v. Ardagh. At p. 737 Geoghegan J. spoke to similar effect:

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

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

Howlin v. Morris [2006] 2 I.R. 321 74. In this case, Hardiman J., in a minority concurring judgment, adopted the view that the distinction drawn in the judgments in Maguire v. Ardagh between the application of rules and procedures to members and to non-members, was a “vital” one. He said at para. 48:

“On the small numbers of occasions when the courts have been prepared to supervise the orders or procedures of an Oireachtas body it has been at the suit of non-members whose rights were affected.… a decision on whether to grant immunity from otherwise lawful disclosure in respect of what are claimed to be the private papers of a member, or to refrain from doing so, is that of Dáil Éireann itself or its lawful delegate. If such decision does not affect the rights of anyone who is not a member of Dáil Éireann, that decision appears to be final and unreviewable.” (Emphasis added) 75. Together these dicta add up to a very substantial and consistent body of authority which would be overturned if Senator Callely were to succeed on the broad theory. In our view it is not possible to dismiss these observations as mere dicta, and therefore not binding, and furthermore wrong. A distinction considered vital as recently as Howlin v. Morris cannot be so readily discarded. Furthermore, it seems to us that these observations, and particularly those in Maguire v. Ardagh, are closely intertwined with the reasoning in that case and the basis upon which the court rejected the claim on behalf of the Houses of the Oireachtas to general non-justiciability of all proceedings in the Houses. In any event, we consider that the distinction drawn, and the decisions made, are correct and consistent with principle . It is noteworthy that similar distinction has been made elsewhere. In Canada (House of Commons) v. Vaid it was observed:

“As courts are apt to look more closely at cases in which claims to privilege have an impact on persons outside the legislative assembly than at those which involve matters entirely internal to the legislature”. (para. 20)

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

“All persons ought to be very tender in preserving to the House all privileges which may be necessary for their exercise, and to place the most implicit confidence in their representatives as to the due exercise of those privileges. But power, and especially the power of invading the rights of others, is a very different thing: it is to be regarded, not with tenderness, but with jealousy.” (para. 39)

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

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

78. In Wireless Dealers, Ó’Dálaigh J. concurring held that to grant an injunction was an interference with the freedom to be protected by Article 15.10. But Article 15.10 does not itself protect freedom of debate. It merely gives each House the “power to ensure freedom of debate”. It is clear therefore, that Ó’Dálaigh J. deduced that the power of the House to protect that freedom of debate within the Oireachtas was protected by the Constitution itself and that as a consequence, the court could not grant any order in relation to it. It is important to consider the significance of this decision. After all, a court is entitled to grant an injunction to restrain an apprehended wrong. If for example, a county council or any other public law body was purporting to act in a manner which it was contended was unconstitutional or in any other way ultra vires, then it would at least be open to a party to argue in court and have determined the question of whether or not an interlocutory injunction should be granted. However, that fundamental part of the administration of justice is not available when a plaintiff seeks to contend that the Oireachtas enacting legislation is breaching the obligation upon it under Article 15.4. This cannot be reconciled with the broader theory which suggests that when the rights of a citizen are affected (which is precisely what was argued by Wireless Dealers), the courts can intervene in, and restrain, the actions of the Oireachtas. 79. In O’Malley v. An Ceann Comhairle both the High Court and the Supreme Court expressly held that the complaint was not justiciable. The High Court expressly said that this was by virtue of the separation of powers and that appears to have been accepted in the judgment of O’Flaherty J. in this court. Again, it is self-evident that there is no express provision to this effect. It might be said that this conclusion follows from the words of Article 15.10 which refer to the right of the Houses to make their “own” rules and standing orders. However, the broad theory requires that a narrow view be taken of this power. There is no necessary reason to deduce from the power to make rules, the power to police them, enforce them, and exclude judicial review. A private club can make its own rules but that does not normally preclude a member from applying to court to restrain breach of them. Again this area of non-justiciability cannot be reconciled either with the broad theory or the reasoning process by which it is justified. Once again it is not too difficult to recast O’Malley v. An Ceann Comhairle as a constitutional claim. The claim as already observed, while made by a person who had since lost his seat, was nevertheless a claim in reliance on members of the Dáil at the relevant time. Yet his claim was not justiciable. 80. It is important to note that this reasoning does not mean that all the proceedings of the Oireachtas are immune from scrutiny or that members lose their constitutional rights. As already observed, it is emphatically the function of the courts to determine the proper boundaries of the exercise of the legislative power in each case, which, pursuant to the separation of powers requires that their proceedings be non-justiciable. This cannot be a matter for the Oireachtas, or either House. Therefore, it seems to us that the real test in each case is whether the actions sought to be subjected to review form an important and integral part of the exercise of the legislative power and does not directly affect persons outside the Houses of the Oireachtas. In that context, it is important to note that the “specified act” which can be the subject of an inquiry under s.4(1) of the 2001 Act must be an act which interferes with the ability of a member of the relevant House to carry out his constitutional function as such member. The definition of "specified act" in substance, provides for as much. Purely private activity which could not impact on the carrying out of the constitutional legislative function is expressly excluded. It is true that such activity is not confined directly to the act of legislating but, for the reasons already analysed, the legislative function seems to us to go beyond the core activity of participating in deliberations leading to the adoption of legislation. We are, therefore, satisfied that the sort of activity which can be considered to be a "specified act" is closely associated with the core legislative function and comes within an area which can legitimately be governed by rules and orders.

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

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

III

Discussion on the Narrow Basis 83. It is necessary to consider if the decision of the High Court can be justified on the narrower ground of the absence of formal rules or orders. There are, it seems to us, a number of reasons why this is not possible. First, it is apparent from some of the matters cited above that the principle of non-justiciability does not solely depend upon the words of Article 15.10 but also, and perhaps more importantly, is derived from the separation of powers. Second, it is important to consider why it was necessary to provide explicitly for a power to make rules and standing orders. It seems to us that the purpose of Article 15.10 resides in the word “each”. In other words, each House of the Oireachtas, independent of the other, and of anyone else, can adopt its own rules which have the force of law. It does not require the concurrence of the other House or the President. It is therefore an important expression of the autonomy of each House, something which is indeed relevant to the larger issue in this case.

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

85. If each House of the Oireachtas independently and autonomously adopts the legislation including that portion of the legislation establishing both the mechanism for procedure and the substantive standard of behaviour, we cannot see any reason to say that it has not adopted its “own” rule, even if it happens to be the same rule as that applying to the other House of the Oireachtas. 86. In any event, the matter does not end there because by standing order 90 the Seanad, in our view, adopted, by standing orders, the procedures contemplated in the Act. Standing order 90 (of the 2007 Standing Orders of the Seanad) provides:

“There shall stand established at the commencement of every Seanad, a Select Committee of Seanad Éireann which shall be called the Select Committee on Members’ Interests of Seanad Éireann, to perform the functions conferred on it by the Ethics in Public Office Act, 1995.” 87. Thus, if there was any doubt about it, it seems that the Seanad, by creating a committee to operate the Act has, by standing order, adopted the rule of behaviour in the Ethics in Public Office Act 1995 (as amended). Indeed, in the High Court, the High Court judge acknowledged this and conceded that “Standing Order 90 does draw the respondents’ inquiry within the ambit of Seanad standing orders” (para.78). However, he considered that could not be conclusive because he considered the subject matter of the investigation manifestly fell outside the “normal sphere of parliamentary activity” (para. 78). This was undoubtedly, so he said; “where the subject matter of the inquiry and the potential findings of fact were likely to cause great damage to the good name and reputation and, perhaps, livelihood of the Member under investigation.” (para.78). This distinction cannot be sustained. The narrow ground is essentially a formal and technical one: the objection was to the absence of standing orders and the High Court’s (correct) acknowledgement that standing order 90 brings the proceedings within the realm in which standing orders ought to be fatal to the narrow ground. Furthermore, for the reasons set out above we do not agree that the subject matter of this inquiry fell outside the legislative function. 88. Finally, and in any event, the non-justiciability of the internal operations of the Oireachtas is not solely dependent on the existence of Article 15.10 rules; it is derived from the separation of powers. If something falls within an area of non-justiciability mandated by the separation of powers, essential to Constitutional equilibrium, it does not lose that status by the introduction of legislation which facilitates the performance of the function. Accordingly we would allow the appellants’ appeal and set aside the order of the High Court.

IV

Review 89. However a majority of the court takes the view that the absence of rules adopted by standing orders means that the proceedings of the Committee and Seanad are justiciable. Accordingly it is necessary to address the question of whether the Report and the Resolution were unlawful or otherwise ultra vires and should be quashed.

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

“As the respondents now accept that the applicant’s claim for expenses was in compliance with the Department of Finance definition, and as these guidelines were not ultra vires the Act of 1938, it necessarily follows that their determination is clearly based on an error of law.” 91. It is also clear that no question of any other breach of fair procedures arises. Senator Callely was given a statement of the procedures the Committee proposed to follow which set out in elaborate detail the procedures which would be accorded to him. He was given notice of the issues to be the subject of the hearing. He was invited to attend and informed that he was entitled to be represented if he saw fit. He was permitted to hear and test by cross examination the evidence given to the Committee, to give evidence on his own behalf, and to make submissions to the Committee. He participated very fully in the proceedings and as an experienced former deputy he was clearly comfortable with the manner in which the hearing proceeded. The proceedings were not adversarial. There was no prosecutor and little formality. There is no claim that the proceedings of the Committee were unfair to Senator Callely. The core question therefore is the error of law alleged. That depends first on whether Senator Callely can be said to have complied with the Department of Finance definition, and second, whether that definition is itself a correct interpretation of the provisions of the Oireachtas (Allowances to Members) Act 1938 (as amended).

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

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

“[I]n the case of a member of Seanad Éireann, travelling facilities between Dublin and his normal place of residence for the time being” (Emphasis added)

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

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

“In examining future claims for any deputies or senators, you will, I presume, take full account of the legal advice obtained in 1987. While this confirmed that the words ‘normal place of residence for the time being’ could be construed as governing a temporary holiday home the Attorney General’s Office indicated at the time that ‘while the concept is quite imprecise it seems to me that what is involved is a premises which, though not necessarily one’s permanent and principal abode is used for a period which is both of some length and for a purpose which is not ad hoc and goes beyond mere shelter in passage, such as a few nights in a hotel while attending a conference or staying briefly with friends’.” This advice was, it appears, prompted by issues which had arisen in connection with members claiming travelling allowances from holiday homes, which had emerged following an audit by the Office of the Comptroller and Auditor General. It is not clear if Senator Callely, who was at the relevant time a deputy in Dáil Éireann, was the subject of the original advice in 1987, but it does appear that he had benefited from the view that holiday homes could be included within the concept of “normal place of residence for the time being”. In an email in June 2010, the Assistant Secretary to the Houses of the Oireachtas Service, Conan McKenna, recalled the fact that “holiday home expenses claims had been paid in the 1990s with the D/Finance approval (subject to restriction) to then Deputy Callely”. However, the same email noted that the law had been changed by the Regulations ( S.I.101/98) by the “once and once only” provision “ thus effectively locking out holiday home claims and rendering the position pre 1998 irrelevant to the issue at hand”. It will be necessary to consider the effect of the Regulations later in this judgment. However, before doing so it is desirable to recall the facts by reference to which this issue arises in this case.

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

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

The attached letter from the Department of the Taoiseach was dated the 3rd of August and was addressed to Mr Callely in Kilcrohane. Senator Callely appears to have attached considerable significance to the fact that this letter was addressed to him in County Cork. However, it does not appear important in the present context. Wherever Mr Callely was in early August was the address to which the letter was to be sent. There is no constitutional or statutory requirement that such a letter be addressed to the recipient’s normal place of residence. More importantly, Senator Callely’s letter also attached a completed form for subsistence and travel allowances for attendance at Leinster House. It was signed by him and gave his “home address” as “the Paddock, Kilcrohane, Bantry, County Cork.” It expressed the distance in kilometres from his “home to Leinster House to the nearest kilometre” as 370 km and ticked the box seeking “overnight allowance and travel allowance” which was only applicable to persons with normal places of residence more than 24.135 km from Leinster House (the metric equivalent of 15 miles). On the same occasion he submitted an overnight claim form in respect of travel expenses. He sought to recoup expenses incurred in attending Leinster House between the period of the 3rd August 2007 to 3rd November 2007 and set out 39 one way journeys at 370 km per journey and a total of 38 overnight allowances to be recouped in respect of journeys to Dublin to attend Seanad Éireann (20), for parliamentary visits with other members (3), and using the facilities of the Houses (15). Again this was signed by Senator Callely who certified that he was submitting the application “in strict conformity with the legislation and regulations relating to the recoupment of the above expenses to members of the Houses of the Oireachtas”. A further form was submitted for the period from the 4th of November to the 31st of December in respect of 21 one-way journeys, 26 attendances in the House, two parliamentary business visits with members and seven occasions on which he used the facilities of the House. This form was a form for attendance at the Dáil but this appears to have been used in error. 95. It appears that Senator Callely’s expenses were paid on a number of similar occasions during 2008, 2009 and 2010. In October 2008 the matter was looked into by Derek Dignam of the Offices of the Oireachtas who reported to Conan McKenna. He pointed out that the office had no way of looking behind the claim without risking potential legal counter-claims. However, if Senator Callely continued to claim at the rate he would drawn down about €40,000 per annum, €25,000 more than would have been expected if he had remained on daily allowances, i.e. the rate applicable to someone resident in Dublin. Mr Dignam raised the matter with Mr McKenna with a view to discussing possible amendments to the guidelines. 96. Almost at the same time, and it appears as part of Mr Dignam’s review, Ms Bernadette McCormack of Members’ Services wrote to Mr Callely referring to his letter of December of the previous year observing that he had stated that the house called “Kilcrohane” was his “current principal residence”. That letter continued:

“However, for the avoidance of doubt and perhaps with certainty for future audit purposes I would be grateful if you could certify in writing that this house in Bantry was your ‘normal place of residence’ for the time being for the period of the claim. This is the statutory position used in s.4(1)(c) of the Oireachtas Allowances (to Members) Act 1938 for the payment of such expenses. For ease of reference, the term ‘normal place of residence’ has been defined by the Department of Finance in previous correspondence with you as ‘what is a premises which, though not necessarily one’s permanent and principal abode, is used for a periods which is both of some length and for a purpose which is not ad hoc and goes beyond mere shelter in passage such as a few nights in a hotel’”.

The reference to the previous correspondence with Mr Callely is, it appears, a reference to the issue which arose when he sought and obtained expenses for travelling from his holiday home at Kilcrohane and which was referred to in Mr McKenna’s email referred to at paragraph 5 above. 97. On the same day, Senator Callely replied:

“Dear Bernie,

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

As already advised, my personal situation has changed since June 2007, as per my previous communication in December 2007. I can confirm that my residence in Kilcrohane is my normal place of residence for the time being, though not necessarily one’s permanent and principal abode at all times. It is the residence from which I received my appointment to Seanad Éireann (copy already supplied). I would like to thank you and the one stop shop for your assistance in this matter.” It is clear that, at least from this point on, Senator Callely adopted the language of the advice of the Department of Finance/Attorney General’s Office. He had however been in receipt of expenses for a year at that point. He continued to submit expenses on this basis until 2010. However, for some periods he submitted a nil claim. At the hearing he explained that he was spending more time in Dublin and wanted his expenses to reflect his travel more accurately. As late as the 25th of March 2010 however, Senator Callely completed a parliamentary standard allowance “normal place of residence declaration” form which he described his address as “the Paddock, Kilcrohane, Bantry, County Cork” and the “distance in kilometres from your normal place of residence to Leinster House by the shortest practical route” as 366 km. 98. In the middle of 2010, a Freedom of Information Act request revealed some of this information and triggered the press coverage, complaints from members of the public and the Committee investigation which became the subject matter of these proceedings. The Committee held hearings on the 25th of June, the 30th of June and the 13th of July, and met in private on the 3rd, 17th and 25th of June, and on the 6th, 7th, 8th and 14th of July. On the opening day the clerk of the Committee read the two complaints and stated;

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

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

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

It is clear in our view that the allegation made against Senator Callely was the misrepresentation of his normal place of residence. Indeed it is a significant part of Senator Callely’s case that this was so. His essential defence was that he complied with the Department of Finance definition. 99. The findings and determinations of the Committee were set out in nine numbered paragraphs which have already been quoted but which it is convenient to set out again here:

“(1) The Committee determines that Senator Ivor Callely has done a specified act as contemplated by s.4 of the 2001 Act by misrepresenting his normal place of residence for the purpose of claiming allowances. The Committee finds that such action was inconsistent with the proper performance of Senator Callely of the function of the office of senator, was inconsistent with the maintenance of confidence in the performance by Senator Callely of the function of the office of senator by the public and was of significant public importance. (2) The Committee determines that the aforementioned specified act on the part of Senator Callely is continuing.

(3) In order to cease the specified act the Committee determined that Senator Callely in conjunction with the relevant authorities take account of the findings of this report and regularise and make good his allowance affairs and ceases to misrepresent his normal place of residence. In this context the Committee records Senator Callely’s clear undertaking given in his evidence on the 25th of June 2010 that he would ‘reimburse’ or ‘repay’ any overpayment per balances. (4) The Committee determines that this specified act on the part of Senator Callely was done intentionally.

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

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

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

• Described his Clontarf residence as his family home;

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

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

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

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

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

• Is registered to vote in Dublin Links Senator Callely to his family home in Clontarf rather than to Kilcrohane, County Cork.

The Committee is strengthened is its conclusion by the fact that Senator Callely entered nil claims for September, October, November, December 2008 and 2009 and has not cashed certain cheques in 2010. The Committee believes that the expenses regulation would benefit from a clear and robust definition of ‘normal place of residence’. In the interests of maintaining public confidence in the Houses the Committee would recommend that this matter is addressed.” (Emphasis added)

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

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

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

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

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

At paragraph 20 he said:

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

At paragraph 21 he stated: “I respectfully believe and am advised that the respondents misunderstood the complaint and misdirected themselves on the issue of law that was before them. In considering the complaint, I believe and am advised that the members of the Committee on Members Interest of Seanad Eireann were required to have regard to and apply the definition of “normal place of residence” as is provided to me in writing by Members’ Services.”

102. The matter became a little more confused however when the Committee came to defend these proceedings. The then Cathaoirleach of the Seanad, Senator Pat Moylan, swore an affidavit in opposition to the relief sought. For present purposes paragraph 19 of the affidavit is particularly important: “The Committee consider that its role was to determine whether the actions of Senator Callely in these circumstances, were such to be as to be inconsistent with the proper performance by him of his office or were inconsistent with the maintenance of competence in Senator Callely’s performance of his office by the general public, within the meaning of s.4(1)(a) of the Standards in Public Office Act 2001. The matter was clearly one of significant public importance. The Committee considered it was exercising a political function, judging a member of the Oireachtas by reference to what Committee members believed to be the appropriate ethical standards expected of a member of the Oireachtas. The Committee therefore reviewed Senator Callely’s action in a political context in circumstances where it concluded that he had a greater affinity with Clontarf that with Kilcrohane. The Committee viewed its actions in the light of their understanding of political ethics and their appreciation of the propriety of Senator Callely’s behaviour. The Committee did not consider than in exercising its peculiarly political functions, it was circumscribed by the interpretation of s.4(1)(c) of the 1938 as given by the Department of Finance in the circumstances outlined by Mr Dignam.”

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

104. At paragraph 10 however it is also pleaded that if the Committee had concluded that the applicant misrepresented his normal place of residence within the meaning of s.4(1)(c) of the 1938 Act: “It was entitled not to apply the Department of Finance Act 1994 or any interpretation of that phrase, as communicated to the applicant by letter dated October 2nd 2008. The latter interpretation of the “normal place of residence” was erroneous and ultra vires the 1938 Act. For the avoidance of doubt the respondents acknowledged that the applicant’s claim for expenses came within the scope of the interpretation given by the Department of Finance.” (Emphasis added)

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

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

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

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

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

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

110. By the time Senator Callely submitted his claims in 2007 the expenses regime had little connection to expenses actually incurred. Once a normal place of residence was identified, expenses were payable at a fixed rate per kilometre dependent upon the number of times a person attended the Oireachtas and travelled for that purpose irrespective of the point of departure. Similarly, overnight expenses became payable without proof of any such expenses being actually incurred. 111. The 1998 Act also amended the 1938 Act provisions in relation to the making of regulations and permitted the Minister for Finance to make regulations in relation to the manner in which claims were to be made for such expenses. By the Oireachtas 1998 Regulations (SI No.101/1998) the then Minister for Finance provided that a person whose normal place of residence was further than 15 miles from Dublin could opt either for a daily allowance which was payable to Dublin members, or mileage allowance payable at civil service rates in respect of the relevant period, but that the option to so opt could only be exercised “once and once only for a relevant period in respect of which the member is entitled to an allowance under that paragraph”. Under Article 6 of the relevant regulations “relevant period” was defined, in effect, as a 12 month period. As was observed in the correspondence referred to above, this change in the regulations made it impossible to opt for expenses being incurred from a holiday home. Given the fact that election for travelling expenses is made once, and once only, during a given year, it is necessary to take an overview of the places at which a member of the Oireachtas resides during that year and consider which is the (single) “normal” place of residence for that year. 112. In most cases it should be easy to determine what is the normal place of residence (remembering that there is only one) for a member of the Oireachtas. In cases of difficulty, the inquiry can be refined by recalling that the purpose of the regulation is and remains expenses for travelling to and from the Oireachtas and that therefore the principal focus should be on the residence of a member during the Oireachtas sessions. In cases of genuine difficulty where there are two or more competing residences of some permanence then a decision must be made by reference to the residence with which the member has the closest connection and which can therefore be said to be the normal place of residence. That is precisely what the Committee did in this case. It assessed all the available information which clearly showed that Senator Callely had a closer connection to his residence in Clontarf than that in West Cork. Accordingly, in our view there was no error of law in the Committee’s conclusion on this point. 113. For that reason it is not perhaps necessary to consider whether, even if the Department of Finance’s interpretation was correct, the Committee was in breach of fair procedures in finding that his claim for expenses undermined public confidence in his office. Clearly it is in principle possible to conclude that strict adherence to a technical provision may nevertheless bring the office into disrepute. The principal complaint here is not with the Committee’s jurisdiction to so find, but rather whether Senator Callely was properly on notice of the possibility of such a finding. We do not think that too close an analogy can be drawn between disciplinary proceedings before a Committee and an indictment in a criminal trial. The Committee must hear and determine complaints made by members of the public. It has no power to reformulate the complaint or add additional complaints, and there is no person performing the role of a prosecutor. Thus, it seems to us that the question is whether the proceedings before the Committee were sufficient to put Senator Callely on notice that he was at risk of such a finding i.e., that he had complied technically with the provisions but was nevertheless guilty of conduct likely to bring the office into disrepute. During the hearings Senator White, the seventh named respondent, stated:

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

These proceedings were reasonably informal. Senator Callely was obviously comfortable with the procedure in the Committee hearings. It is significant that he did not complain either at the time, or in his affidavit, of the matter being put to him in this way. It was clearly an issue in the deliberations of the Committee. It is noteworthy that while Senator Callely quotes this passage in his affidavit, but relies on it only as evidence of the error of law which he alleges against the Committee. The question was clearly in issue therefore in the proceedings. In the circumstances we do not consider there was any unfairness in the hearings or any error of law in the Committee’s conclusions. 114. It is true that the Committee did not frankly acknowledge in its conclusions that Senator Callely was in compliance with the Department of Finance interpretation. The first occasion on which this was acknowledged was in the Statement of Opposition referred to above. Whether this reticence was due to a desire not to expose the officials to criticism for proffering that interpretation, or a less high minded desire to avoid public attention and criticism of the Oireachtas expenses regime more generally, may be a matter of speculation and comment, but it cannot resolve this case. In truth the principal complaints about the Committee are directed, with some merit, not to what the Committee did, but rather what it said (or did not say) in its Report and more particularly in the documents filed in defence of these proceedings. But the only issue for this Court is one of law. In our view the Committee was correct in rejecting as erroneous the 1994 interpretation and was entitled to conclude that Senator Callely had indeed misrepresented his normal place of residence and thereby committed a specified act which was inconsistent with the maintenance of public confidence in the performance by him of his office. Accordingly we would allow the appeal and refuse the reliefs sought.