THE HIGH Court has quashed the decision of the Seanad to suspend Senator Ivor Callely for alleged misconduct involving his Seanad expenses claims.
It voted to suspend him for 20 sitting days on July 10th last, with consequent loss of pay, following an investigation by the select committee on members’ interests which found he had misrepresented his “normal place of residence” in claiming his expenses.
Mr Callely had claimed expenses for travelling from his house in Kilcrohane, west Cork, to Dublin. Two complaints were made about this by members of the public and investigated by the Seanad committee.
Mr Justice Iarfhlaith O’Neill found the Seanad committee had infringed Mr Callely’s constitutional rights, had failed to act in an appropriate judicial manner by making a “political judgment”, had acted outside its power and had breached natural justice and fair procedures.
It did not find that three members of the committee, Senator Dan Boyle, Senator Joe O’Toole and Senator Alex White, had shown evidence of bias in conducting the investigation, as had been alleged by Mr Callely.
The members of the committee had claimed the matter fell outside the jurisdiction of the courts in that it concerned internal matters of a House of the Oireachtas, and was not justiciable by the courts because of the separation of powers. Referring to Article 15.10 of the Constitution, they had claimed the Seanad and its committees are masters of their own deliberations.
Mr Justice O’Neill found the matter was justiciable by the courts. He said that Article 15.10 did not exclude the jurisdiction of the courts over members of the Oireachtas, though the Constitution did contain such exclusions in other Articles relating to the President, utterances of members of the Oireachtas in either House and in relation to emergency legislation. If it were intended that the jurisdiction of the courts would be excluded when the Oireachtas conducted its business, as referred to in Article 15.10, this would have been stated.
“Thus in this disciplinary process the applicant’s right to vindicate his good name is preserved intact, as is his right of access to the courts, which is one of the unenumerated rights protected by Article 40,” he said.
He added that the absence of any provision for an appeal against the committee’s decision, combined with a denial of access to the courts, would seriously injure Mr Callely’s constitutional right to vindicate his good name.
“It would seem to me that the boundary between the exclusive roles of the Oireachtas, on the one hand, and the High Court on the other hand, appropriately respecting the separation of powers principle, does not exclude access to the courts where a member of the Oireachtas, in circumstances such as the applicant, seeks the protection in vindicating his constitutional right to his good name and to natural justice and fair procedures,” he said.
He also said the exclusive jurisdiction of the Oireachtas that Article 15.10 refers to is limited to parliamentary business, and does not include expenses. In addition, the fact that the committee acted under statute brought the investigation outside the exclusive parliamentary realm.
The members of the committee had acknowledged that Mr Callely’s Cork house met the definition of “normal place of residence” as defined by the Department of Finance for parliamentary expenses but claimed that they were exercising a “political function” by reference to the ethical standards expected of a public representative.
“I profoundly disagree . . . that [the committee] was not circumscribed by the Department of Finance interpretation of [the act],” Mr Justice O’Neill said.
“In conducting an inquiry resulting in findings of fact, which had the potential to cause grave damage to the reputation and livelihood of the applicant, it necessarily follows that the function the respondents were discharging was a judicial or quasi-judicial function in which they were bound to act judicially,” he said.
“The standards of natural justice and fair procedure cannot be displaced by a ‘political judgment’ simply because the person affected is a member of the Oireachtas.”
He said the position the respondents sought to adopt during the proceedings was “quite remarkable”. They claimed they were not seeking to decide Mr Callely had misrepresented his normal place of residence, but rather that his expenses claim offended “political ethics”.
The “specified act” referred to in the investigation was that Mr Callely did misrepresent his normal place of residence. It was now accepted the west Cork house complied with the Department of Finance definition for claiming travel expenses. He had never been charged by the inquiry with a breach of “political ethics”.
By attempting to substitute a political judgment for a quasi-judicial finding, the committee stepped outside the jurisdiction conferred on them by the relevant legislation and were acting ultra vires, Mr Justice O'Neill said.
Counsel for Mr Callely, Rory White, said they wanted to consider the ruling and the matter will return to court on Monday week.