Court ruling a victory for Oireachtas, but not a resounding one

Some four years after it was disclosed Dublin-based Fianna Fáil senator Ivor Callely was claiming travel and overnight expenses from his holiday home in west Cork, the Supreme Court yesterday ruled his Seanad colleagues were correct in censuring him.

While the judgment represents a victory for the Oireachtas, it was not a resounding or decisive decision by any means, with the court allowing the appeal taken by the Oireachtas by a four-to-three majority.

That reflected strongly divergent views within the court on the two key issues that were decided. Indeed on the second – whether the courts had any right to scrutinise a report or resolution of the Oireachtas – it held against the parliament.

The circumstances of the case revolved around expenses claims submitted by Callely after he was appointed to the Seanad in 2007. Despite living in Clontarf and having represented that constituency, he submitted expenses claims on the basis his holiday home near Bandon in west Cork was his “normal place of residence for the time being”.

Hearings
A Seanad committee held hearings into his claims and held that he misrepresented his normal place of residence. Callely was not travelling to the Seanad from Co Cork but from his family residence in Clontarf, where his constituency operation was continuing. He admitted as much during the hearings.

The former senator relied on a 1994 Department of Finance interpretation of "normal place of residence" (as defined by a 1938 Act). That interpretation would have allowed him to claim expenses from west Cork. However, a majority of the court ruled the interpretation was incorrect, or was not the point.

As Mr Justice Nial Fennelly put it, the technical definition of place of residence was not the point. What was the point, he stated, was that the senator claimed expenses that he was not in fact incurring.

He, like other judges in the majority, said such claims were "specific acts" as described by section 4 of the Standards in Public Office Act 2001. As judges Clark and O'Donnell noted, such an act, "to use a colloquial term, might bring politics into disrepute" and also noted many sporting, cultural and professional bodies used similar language in setting out disciplinary rules.

Critical
However, Mr Justice Hardiman and others, did not reject the 1994 interpretation. He was critical of the committee for finding Callely misrepresented his normal place of residence.

He said they had done so “in the teeth of their very late admissions that the claim for expenses came within the scope of the interpretation given by the Department of Finance”.

In another significant ruling, the court – again by a majority – rejected the contention put forward by the Oireachtas that under the separation of powers provisions under article 15 of the Constitution, the court did not have the jurisdiction to scrutinise the determination.

Two of the judges ruled the case was not justiciable, as an inquiry into claims for allowances was “squarely within the constitutional function of the Houses of the Oireachtas”. But a majority disagreed.