Judgment of Mr. Justice William M. McKechnie, delivered on the 9th day of April, 2014.
Introduction:
1
. But for the fact that Mr. Callely (or “the applicant” or “the Senator”) was a member of Seanad Éireann at the time, the essential issue in this case would not even have arisen, much less have the significance which the respondents (“the respondents”), including Seanad Éireann, maintain. By reason of his membership of that House of the Oireachtas (“the House”), it is said that the High Court could not, and thus on appeal this Court cannot, exercise the very functions for which the courts exist, namely, in a case such as this, the vindication of core constitutional rights, such as the right to one’s good name, the right to earn a livelihood and - as part of a process which is claimed to have irreparably eroded such rights - the right to fair procedures. In short, the Superior Courts must stand aside even if otherwise satisfied that what is asserted would justify their intervention. Such an outcome, surprising as it must be to a great number, is said to be mandated by the Constitution of Ireland, 1937 itself (“the Constitution” or “the 1937 Constitution”), so as to give due recognition to the legislative power, when exercising a sub-set of that power, namely parliamentary privilege. In essence it is essential to and demanded by the separation of powers.
2. The rights which are involved in this case are at the highest level of our constitutional order, not only from the viewpoint of the administration of justice but also from the perspective of the very Constitution itself. Thus, any mandatory disablement of the judicial system of government solely because of his Oireachtas position, is a matter of grave significance which each member of the public will have a great interest in. It will therefore be necessary to inform them in the clearest manner possible if this is so.
3. However, having stated thus, it must immediately be added that if this submission is correct, the Court can have no discretion over what it should decide: it must respect what is exclusively within the remit of the legislative branch and must accord to that branch, due recognition of its true role.
4. All of these matters arise out of an allegation that the applicant misrepresented his place of residence for the purposes of obtaining travel expenses and overnight allowances, in respect of his attendance at the House between August, 2007 and March, 2010. On complaint being made by two members of the public, the eight named respondent, the Committee on Members’ Interests of Seanad Éireann (“the CMI” or “the Committee”) conducted an investigation into the matter and published a highly condemnatory and extremely critical report (the “Report”) of the applicant’s behaviour. On the same day, namely the 14th July, 2010, Seanad Éireann passed a resolution (the “Resolution”) adopting the Report and the sanctions suggested by the Committee, which included censuring the Senator and suspending him from service, without salary, for a period of twenty sitting days.
5. Whilst this is a skeleton version of the background, and whilst the formal allegation was couched so as to reflect the wording of s. 4, of the Standards in Public Office Act 2001 (“the 2001 Act”), the above is in essence the factual matrix of this matter.
6. Arising out of the actions of both the Committee and Seanad Éireann, the applicant successfully obtained leave to seek judicial review and at the substantive hearing obtained from the High Court an order, quashing both the Report and the Resolution. Judgment to that effect was given on the 14th January, 2011. Having served a notice of appeal, the respondents’ principle argument is that the issue in question is not “justiciable” before the courts. They make this submission on two grounds, the first of which they say, is by far the most important one: they claim that the Constitution prevents the courts’ intervention by reason of the doctrine of the separation of powers and secondly that any adjudication on a breach of s. 4 of the 2001 Act (“a s. 4 breach”), is a matter of political judgment; thus as there exists no legally recognised standard of review, the same is not reviewable by the courts. They also deny that there was any breach of fair procedures as well as make a number of other subsidiary points.
7. I can readily understand why the respondents say that these are serious matters. However, as I listened intently to the argument I could not help but think that they were considered serious only from their point of view. The position of the applicant was very much lost in the debate. Such cannot be the case, particularly where the Court is being asked to step back from even considering the issues raised, which have at their core, key constitutional rights.
8. The structure of what I propose to write on these issues is loosely as follows. In the first part of this judgment (“Part A”) I will deal with the justiciability issue considering firstly the separation of powers point and secondly the political standards point. In the second part (“Part B”) I will address the substance of the judicial review application. In both parts I have referred interchangeably to “Mr. Callely”, “the applicant” and “the Senator”, and have referred to the respondents, individually when necessary, and collectively as “the respondents”.
PART A
Background:
9. Having been a member of Dáil Éireann for 18 years, representing the constituency of Dublin North Central, as it was at the time, the applicant lost his seat in the general election of May, 2007. In August of that year he was one of An Taoiseach’s nominees to Seanad Éireann. Nothing turns on nomination as distinct from election. Whilst a member of Dáil Éireann he maintained both his family home, in which he resided, and his constituency office in North Dublin. He also had a second home in West Cork, since 1992, which originally was a holiday home. His letter of nomination was sent to his West Cork address.
10. As a member of Seanad Éireann he was entitled to claim expenses in travelling from his “normal place of residence for the time being”, to the House when in session. Such entitlement was provided for by s. 4(1)(c), of the Oireachtas (Allowances to Members) Act 1938 (“the 1938 Act”). Pursuant to regulations made in respect thereof (Oireachtas (Allowances to Members) (Travelling Facilities and Overnight Allowances) Regulations 1998 (S.I. 101 of 1998) (the “1998 Regulations” or the “Regulations”)), a distinction was made between those members whose normal place of residence was within and those beyond a 15 mile radius of where the Seanad sits (“Leinster House”). Those within this distance had no choice of allowance: they received a daily figure of about €62 at the time. Those who had to travel further had an option to either proceed in that way, or in the alternative, to get a travel and overnight allowance, which apparently in the applicant’s case, had a value of about €139 per night.
11. In December, 2007, Mr. Callely made his first claim, being one based on travel and subsistence, for attending at Leinster House, for the period 3rd August, 2007 to the 3rd November, 2007, stating in the process that his “current principle residence” had changed, and was now in West Cork. Further claims on this basis were made for the remainder of that year, for the first eight months of 2008, for the first nine months of 2009, and finally for the period of the 1st January, 2010 to the 28th February, 2010. Many of the claims were submitted at different time intervals and for different parts of the overall periods, which I have outlined.
12. On the 22nd December, 2009, he sent to Members’ Services, the relevant office of Seanad Éireann dealing with expenses, a form to cover the last four months of 2008, submitting a “nil” claim for this period. He submitted a like form for the period 3rd October, 2009, to 31st December, 2009, and finally, in April, 2010 he returned a cheque which represented his March, 2010 expenses. Such steps were said by the applicant to have been taken in furtherance of an “… anxious[ness] … that [his] claim[s] should reflect [his] actual travel …”.
13. The claims as made were interspersed with correspondence which passed between Mr. Callely and Members’ Services. On the 2nd October, 2008, that office asked Mr. Callely to certify in writing that West Cork was his “normal place of residence for the time being”. That was the precise phrase used in s. 4 of the 1938 Act, whereas the applicant, in the first claim submitted, had referred to West Cork as being his “current principal residence”. The letter, for “ease of reference”, went on to say that the Department of Finance (or “the Department”) had previously defined (in 1994), the s. 4 phrase thus:
“[W]hat 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” (“the Department’s definition”).
By reply of the same day, he confirmed that West Cork was his place of residence as falling within this definition.
14. Sometime in June, 2009 the applicant, because of a continuing concern that his expenses would reflect his “evolving circumstances”, enquired about changing the basis of his claim to a daily allowance. On the 2nd July, the office pointed out that under the Regulations a member could opt “once and only once”, within a calendar year as to the basis upon which he wished to claim expenses. As Mr. Callely, had in November, 2008 declared his position for 2009, he was therefore bound to stay with travel and overnight allowance, for that year.
15. On the 7th October, 2009, the applicant contacted Members’ Services, again expressing concern that his claims should reflect his actual travel and to that end, pointed out that he had made no recent claim. The reply of the 15th October, 2009, referred once more to the Regulations, but offered to make a special plea to the Minister if Mr. Callely so wished. On the 16th December, 2009, the applicant further communicated with the office, stating that in order to best reflect his particular situation, he would not make a claim for the last four months of 2008. On the same basis he likewise did not claim for October to December, 2009, and as stated above, returned a cheque in April, 2010, in the sum of €3987.50, which he had received in respect of his March, 2010 allowances.
The Sunday Independent and the Complaints:
16. In its edition of the 30th May, 2010, the Sunday Independent newspaper published an article under the heading “Callely got €80,000 mileage from Cork Ex-Dublin TD has Bantry address”. This provoked complaints from two members of the public. On the 31st May, 2010 a Mr. John Mulligan wrote to the Clerk of Seanad Éireann, and having referred to the article made a formal complaint “under [s.] 8 of the Ethics in Public Office Bill 1995 [sic] in respect of Senator Callely’s expenses claims”. A few days later the second complaint, this time from a Mr. Patrick Hurley was received. On this occasion the complaint was lodged under s. 8 of the Ethics in Public Office Act 1995 as amended (“the 1995 Act”) and in essence alleged that, by specifying his Cork address, Mr. Callely had falsified his claims for expenses.
17. Treating both matters as serious, the Clerk of the House, a Ms. Lane, on the 2nd or 3rd June, 2010, referred these complaints to the eight named respondent for its consideration. Being satisfied that there was sufficient evidence to warrant an inquiry, the Committee decided to investigate.
The Investigation:
18. Section 8(1), of the 1995 Act, requires each House of the Oireachtas to establish, after the commencement of the section and thereafter following each general election, a select committee, to be known as a Committee on Members’ Interests, to perform the functions conferred on it by that Act. Amongst these is a power to investigate complaints such as those made in this case. The Committee was comprised of the first seven named respondents, each of whom was a member of Seanad Éireann at the time. As required by the Act, the CMI served on Mr. Callely, a statement of contravention “of this Act alleged” (s. 32(6)(b) of the 1995 Act). Having interpreted the complaints received as alleging that the Senator had misrepresented his normal place of residence for the purposes of obtaining expenses, the operative part of the contravention statement continued:
“… 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, or the circumstances of which, is a specified act (within the meaning of section 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 in such performance by the general public and the matter is one of significant public importance.”
By return, the applicant submitted a statement in full exoneration of his position. In it he referred to most of the correspondence above noted and asserted compliance with the definition, of “normal place of residence”, as provided to him by the office of Members’ Interests.
19. The Committee thereafter met on several occasions, often in private, but on three occasions in public. There were two witnesses; a Mr. Derek Dignam, Principal Officer of Members’ Services, and Mr. Callely himself. On the 14th July, 2010, its Report was published. In summary, it found that the applicant had committed a “specified act … by misrepresenting his normal place of residence” (para. 201 infra), and in the process had also breached s. 4 of the 2001 Act. In its view this breach was continuing, was committed intentionally and was not done in good faith: accordingly it should be regarded as being both serious and grave. “[O]n balance”, the Committee concluded that the weight of the evidence “link[ed]” Mr. Callely to his Dublin home rather than to his house in West Cork (p. 8 of the Report). It proposed a series of sanctions.
20. This Report was sent to Seanad Éireann as required by law. The Committee, as empowered to do so under s. 28 of the 1995 Act, caused a motion to be moved before the Seanad on the same day, seeking the approval of the House to implement the suggested sanctions. Such Resolution was passed and as a result the applicant was censured and suspended from service without pay for a period of 20 sitting days.
Grounds Pleaded for Judicial Review:
21. By means of an amended statement dated the 7th September, 2010, the applicant, who grounded his application for judicial review on the background circumstances outlined above, claimed that:
22. He particularised, in relation to assertions (i) and (ii) as regards “normal place of residence”, inter alia that the respondents:
(i) failed to have regard to and/or to apply the Department’s definition but instead, in error, applied a test of whether the facts “linked” the applicant to his Clontarf address rather than to his Cork address;
(ii) erred in determining that he had misrepresented same without making a finding that the Cork residence did not comply with the Department’s definition;
(iii) failed to have regard to the applicant’s legitimate expectations arising out of, inter alia, the express representation that that definition, as provided to him by Members’ Services, was reliable and could be acted upon.
23. In regards to assertion (iii), he specified inter alia that:
(a) a reasonable person in the circumstances would reasonably apprehend that he was denied a fair hearing;
(b) statements made at the hearing by the sixth and seventh named respondents gave rise to a real risk and/or perception of actual or objective bias;
(c) the respondents failed to have regard to relevant considerations and/or considered irrelevant matters;
(d) Members’ Services made a representation as to the meaning of “normal place of residence”, addressed it directly to the applicant with the intention that he should rely upon same, which he did. The representation and conduct therefore, created a reasonably held expectation that the Department’s definition would apply: accordingly it would be unjust to allow the respondents to make a finding, to publish a Report and to cause a Resolution to be passed, all to the effect that he had made an intentional misrepresentation.
24. By reason of such matters the applicant sought; (i) an order quashing the Report and the Resolution and (ii) a declaration that the investigation, Report and Resolution were conducted, compiled and passed in disregard of fair procedures and in breach of his legitimate expectations. Further ancillary relief was also prayed for.
Defence By Way of Objection/Opposition:
25. The defence to these allegations, pleaded in part by way of objection, asserted the justiciability bar, basing this argument firstly on the separation of powers, in particular on Article 15.10 of the Constitution and secondly by reason of the absence of any “cognisable legal standard”, by which the Court could review the s. 4 finding, as such a finding was entirely one of political judgment. Without prejudice to this plea the opposition papers denied all claims.
26. In addition however and of real significance is the plea that the Committee was not, as part of its inquiry, deciding whether the West Cork residence fell within s. 4(1)(e)of the 1938 Act so that the applicant might have properly claimed expenses therefrom, but rather was determining whether he had committed a “specified act” under s. 4 of the 2001 Act. Of even greater interest is the assertion that the Department’s definition of one’s “normal place of residence” was not only wrong but was in fact also ultra vires the 1938 Act. Further, the defence went on to say that, “for the avoidance of doubt”, the respondents accepted that the basis upon which the applicant submitted his expense claims, came within the Department’s definition, as previously outlined.
The High Court Judgment:
27. The High Court judgment ([2011] 1 I.R. 676) records the submissions made to it by the parties: those of the respondents, in respect of the immunity point, were very much structured as per the summary above given and were as follow. The procedures, investigations, and Report of the CMI and the Resolution of the House, were not amenable to judicial review. These matters and the issues which they raised were not cognisable by the courts. This resulted from the separation of powers doctrine, created by the Constitution with particular reliance on Article 15.10 thereof. The respondents were thus masters of this disciplinary process which was legally - that is constitutionally - the exclusive preserve of the House. Accordingly, as so understood, the issues in this case are non-justiciable.
28. Such issues were said to be likewise beyond the courts’ reach, because the assessment as to whether or not a “specified act” was committed under s. 4 of the 2001 Act, was solely based on political ethics which can only be adjudicated upon by members of the House. The law knew of no “standard” by which it might have made that decision. The precise phrase which the respondents used in this regard was “no objective legal standard”. So once again, on this alternative basis, the objection made in the notice of opposition, was repeated.
29. In short, it was claimed that what occurred was intrinsically an exercise by the House on and over its own affairs, involving as it did a member. It was no different than when disciplining a speaker for unruly behaviour or a member for unacceptable conduct, when committed within the House. The fact that all of the steps complained of were taken pursuant to statutory provisions, was simply not relevant.
30. The submissions advanced by the applicant are readily detectable from the judgment, a summary of which now follows.
31. The trial judge accepted (at p. 696) that passages cited from case law supported the view that the Houses of the Oireachtas had exclusive jurisdiction in matters relating to the internal disciplining of their members: in this regard he referred to Wireless Dealers Association v. Minister for Industry and Commerce & Ors. (Unreported, Supreme Court, 14th March, 1956); O’Malley v. An Ceann Cómhairle & Ors. [1997] 1 I.R. 427 (or “O’Malley”) (p. 431); Haughey & Ors. v. Moriarty & Ors. [1999] 3 I.R. 1 (or “Haughey”) (p. 16); Controller of Patents, Designs and Trade Marks & Anor. v. Ireland & Ors. [2001] 4 I.R. 229 (“Controller of Patents”) (Kelly J. at p. 242); Maguire & Ors. v. Ardagh & Ors. [2002] 1 I.R. 385 (or “Maguire”) (Divisional Court p. 413: Keane C.J. at p. 537, McGuinness J. at pp. 628 to 629: Geoghegan J. at p. 736) and Howlin v. Morris & Ors. [2006] 2 IR 321 (or “Howlin”) (Hardiman J. at p. 366). However, in none of these cases was a member trying to assert against the House, or an emanation thereof, as Mr. Callely was seeking to do in the instant case, that his constitutional rights had been violated. This was the first such case. Therefore the dicta of the learned judges, whom I have mentioned, must be regarded as obiter.
32. Having stated that with the adoption of the 1922 and the 1937 Constitutions, there was a clean break with parliamentary history as it then stood, the learned judge declared that whatever the scope of the privileges and immunities of Parliament might be, their bedrock is now “solely to be found” in the Constitution (p. 696).
33. On the following essential grounds, the judge rejected the respondents’ submissions on the justiciability issue, holding in the process that Article 15.10 of the Constitution should be given a literal meaning and should also be strictly construed (p. 701).
• Ground no. 1: If Article 15.10 was intended to operate in a manner which excluded other provisions of the Constitution, such as Articles 34, 37, 38 and 40, it would have expressly so stated, as is the situation with other provisions, for example Articles 13.8, 15.12, 15.13 and 28.3.3 (See the Report of the Committee on the Constitution 1967 (Dublin; Stationery Office), which group will hereafter be referred to as “the Constitutional Review Group”, and Howlin at p. 382 to 384). Therefore, the right to vindicate one’s good name and one’s right of access to the courts, remain in tact.
• Ground no. 2: Nor is it necessary by implication to exclude the jurisdiction of the courts on the basis of achieving some overriding constitutional imperative or of ensuring the harmonious and complimentary co-existence of two organs of government. What was at issue was not the fettering of legislative activity, but rather the constitutional rights of the applicant.
• Ground no. 3: In the absence of an appeal mechanism, the only body which could deal with any grievance or complaint arising out of its procedures or findings, would be the CMI itself. That would make it a judge in its own cause and thereby, would breach one of the most basic norms of natural justice.
• Ground no. 4: Article 15.10 of the Constitution does not exclude the courts simply because of Standing Order 90 (“S.O. 90”) of the Standing Orders of Seanad Éireann Relative to Public Business. That order - the only such provision with any connection to this case - merely established the CMI, as required by s. 8 of the 1995 Act.
• Ground no. 5:
(i) Article 15.10 should be looked at as a single provision and not as having two parts to it: what is mandated by its terms is the making of rules and standing orders so as to give effect to the powers thereby conferred. (Geoghegan J. in Howlin at p. 386).
(ii) Whilst the nature and scope of these powers are not specific and whilst there is no express bar in giving effect to them by legislation, nonetheless what Article 15.10 envisages is that the normal internal parliamentary business of each House (exercised through or effected by its members), should be regulated by rules and standing orders, and that all of the other matters mentioned in that subsection, including the power to ensure freedom of debate, should be regulated otherwise, that is, by legislation. Control by rules and standing orders is adequate to enforce what truly should be covered by them, but would be inadequate to deal with the other matters as mentioned, where legally enforceable measures might be required, particularly if non-members were involved.
(iii) When legislation is therefore resorted to or is necessary, the matters thereby covered are not exclusive to the jurisdiction of either House, which in turn means, that the other provisions of the Constitution remain operative.
(iv) Further, in light of the provisions of s. 8(2) of the 1995 Act, which allows a member of the public to make complaints, as happened in this case, the underlying scheme ceases to be one of internal regulation, even where the subject of the complaint is a member of either House.
(v) As every aspect of the process involved in this case is governed by the 1995 Act and/or the 2001 Act (“the 1995/2001 Acts”), any and all complaints made thereunder are cognisable by the courts.
(vi) Cane v. The Right Honourable the Lord Mayor & Ors. [1927] I.R. 582; In re Haughey [1971] I.R. 217 (or “In re Haughey”); and McGuinness J. (p. 626 in Maguire) where she recites an apparent concession by the Attorney General in the High Court that orders and resolutions of select committees, insofar as they relate to the operation of statutory powers, are reviewable, all establish a sound legal basis for the stated conclusion.
• Ground no. 6: Despite how otherwise it might appear, claims for expenses were never contemplated to be covered by Article 15.10. This is clear when the provisions of Article 15.15 (para. 82 infra) are considered and where the entire process of providing for and claiming expenses is governed by legislation and regulations made in respect thereof. This viewpoint is reinforced when one considers other provisions of the Constitution such as Articles 17, 21 and 22, dealing with the appropriation of public monies.
34. In concluding this section on what the High Court decided, it is useful at this juncture to cite from para. 79 of the judgment, at p. 713, where the learned trial judge himself gave the following summary of his decision:
35. As above mentioned the second basis upon which non-justiciability was claimed, stemmed from what is involved in operating s. 4 of the 2001 Act. In this regard the High Court rejected the contention of the respondents who argued (i) that the determination of whether or not a “specified act” was committed was intrinsically a matter of political judgment to be embarked upon by politicians and judged according to peer-review values and (ii) that there were no cognisable legal standards, objectively based, by which their judgment in this regard, could be reviewed. These arguments equally applied to the decision of Seanad Éireann in resolving, as it did, to adopt the Report including its findings, and to affirm the sanctions thereby outlined.
36. The High Court on this point went further than mere rejection, being compelled to “profoundly disagree” with the suggestion of the members of the Committee, that as they were exercising a political function, they could, as a result, “free themselves from the disciplines of natural justice and fair procedures” and could cast aside well established principles so as to arrive at a conclusion which in their view, accords with “political ethics” (p. 715). Such was held to be entirely inconsistent with the minimum standards which a person, facing an inquiry capable of reaching adverse findings carrying the gravest of consequences, was entitled to expect: In re Haughey. The position of Mr. Callely in this regard was no different to any other individual citizen. That being so, it was necessary that all facts essential to the charge or accusation should exist and be proven to the required level. If such facts are not so established, the person in question should be exonerated. If so established, the question of sanction or redress only then arises. The inquiry envisaged by the 1995 Act was no different to that of the scenario so outlined.
37. In reality according to the learned judge, the position in this case was that the applicant was facing an allegation that he misrepresented his normal place of residence, so as to improperly obtain expenses. There were other follow-on questions if this was established, such as whether he did so intentionally, negligently, recklessly, or even in bad faith. In substance he was facing a charge of dishonesty. If on proper inquiry he was found to have so acted, all right-thinking persons would clearly agree that some sanction or censure should follow. Certainly a court would be so minded. In fact, the circumstances giving rise to the Committee’s inquiry, are similar to those which on a daily basis the courts, and a variety of other bodies in this country, are obliged to deal with. The suggestion therefore that the judge of such an issue must have some unique insight into “political ethics” is entirely unfounded. For those reasons the High Court concluded that the submission made under this heading, could not be countenanced.
The Appeal:
38. By notice of appeal dated the 22nd February, 2011 the respondents appealed against the said High Court decision on sixteen grounds. These may be grouped into the following categories, all suggesting that the learned judge, in a variety of ways, erred in law and/or in fact in holding:
(i) that the investigation, Report and the resultant Seanad Resolution were not immune from judicial review, by virtue of the principle of the separation of powers or pursuant to Article 15.10 of the Constitution or as a result of the standing orders, in particular S.O. 90;
(ii) that the scope of the Article 15.10 exclusive powers did not encompass, at a general level, statute-based jurisdiction, certainly where that included measures involving non-members, and at the particular level, decisions taken pursuant to the 1995/2001 Acts, in respect of a member’s entitlement to claim certain expenses;
(iii) that the vindication of the applicant’s constitutional rights required access to the courts, and that when contrasted with the rights of members of the public, such denial would result in a breach of his Article 40.1 rights;
(iv) that the Committee did not properly discharge its adjudicative function;
(v) that the political aspect of the function exercised by the Committee in making its findings and determinations was neither unique nor distinct; and
(vi) that the Department’s definition of “normal place of residence” was (a) intra vires s. 4(1)(c) of the 1938 Act and its derivative Regulations, and (b) binding on the Seanad Committee.
The Respondents’ Submissions to this Court:
39. In the original submissions to this Court, the CMI defines the jurisdictional question as being “… whether Seanad Éireann and its committees are masters of their own deliberations and whether the Superior Courts can exercise any function with regard to their deliberations where the disciplining of members is concerned in the context of an expenses regime”. They claim that by virtue of the separation of powers, Article 15.10 confers complete immunity on the House when it is engaged in this process. They complain that the decision of the High Court ends what was previously understood from judicial comment, although not from judicial decision, to be a distinction between members of the Oireachtas and non-members and that in so doing, it fundamentally erred in law.
40. To support this proposition they refer to the cases above identified (para. 31) and rely on an article by Mr. Brian Murray, S.C., “Judicial Review of Parliamentary Proceedings and Procedures Under the Irish Constitution” in Carolan & Doyle (eds) The Irish Constitution (Governance and Values) (2008) (Thomson Round Hall): chapter 8, pp. 147 to 180 and also on a submission made by O’Donnell J. in Maguire, recorded at p. 466 of the report, when appearing as counsel (as he then was) for the applicant in that case.
41. Of the authorities mentioned, what Geoghegan J. said in Haughey, when excluding from the case any evidence suggesting that the Seanad was not properly convened when passing a resolution under the Tribunal of Inquiry (Evidence) Act 1921, is noted:
“… it 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);
as is what Kelly J., in Controller of Patents, when referring to the O’Malley case, observed:
“… there was much force in the defendant’s submission that what happened in Leinster House, either in the upper or lower House, is neither cognisable by this [C]ourt or relevant to the issue that has to be tried.” (p. 242)
42. By far the most important authorities relied upon are, Maguire and certain remarks of Hardiman J. in Howlin. Both the judgment of the Divisional Court and that of the Supreme Court in Maguire are extensively quoted. These are cited, in some instances at length, later in this judgment. Whilst acknowledging that the aggrieved persons, in Haughey and in Maguire were non-members, and that as a result all observations relative to the instant issue, must be regarded as obiter, nonetheless such must be treated with considerable respect. When one also notes that these judicial statements, quite evidently, were carefully chosen and deliberately made, such factors add to their weight.
43. Although the trial judge considered these dicta, nevertheless he erred in not affording them more persuasive effect than he did. In fact if he had correctly understood their true import, he would have felt compelled to follow and apply their impressive logic.
The Applicant’s Submissions:
44. There were three matters on the factual side which Mr. Callely seeks to highlight:
(i) At the inquiry Mr. Derek Dignam gave uncontradicted evidence to the effect, that the intention of sending the letter of the 2nd August, 2008 was to “set matters to right”, in that expenses were claimable not from a person’s current principle residence but rather from a member’s normal place of residence (p. 13, Day 2 of the transcripts). He said that in order to facilitate the applicant’s understanding of this phrase, the office had outlined in the body of the letter the definition previously received from the Department of Finance (para. 13 supra), which was both current and in use at the time.
(ii) Mr. Callely gave evidence, again uncontradicted, confirming his reliance on the Department’s definition at all times. On that basis he was therefore satisfied that his West Cork address complied with its terms and that as a result his expense claims were submitted correctly.
(iii) The Report and the Resolution had grave consequences for him. He said that he was pilloried in the national media, vilified by the general public and subject to personal abuse by others including strangers. His reputation was destroyed and his good name devastated.
45. Reference is also made to the statement of opposition in which for the first time, the respondents acknowledged that the claims, as made, came within the Department’s definition. Although belated the same was welcome. However, the assertions which then follow, could only be described as quite extraordinary: these are that the CMI was not engaged in making a determination of whether the applicant had misrepresented his normal place of residence, but rather was deciding whether his actions offended political ethics, and secondly and in any event, that the definition given to him, was not only erroneous, but was in fact ultra vires the 1938 Act.
46. The submissions made on the issue of justiciability both as regards the separation of powers and the s. 4 arguments, are entirely supportive of the judgment of the learned High Court judge from whose decision extensive passages were cited. Considerable reliance is also placed on the proposition that all statutory provisions must be viewed and operated in accordance with fundamental constitutional principles; East Donegal Co-Operative Livestock Mart Ltd. & Ors. v. The Attorney General [1970] I.R. 317 at p. 341 (“East Donegal Co-Operative”).
The Court’s Invitation:
47. In an unusual step, though by no means without precedent, the Court, in a letter dated the 19th July, 2013, requested both parties to file supplemental submissions in relation to “ … what relevance, if any, Article 15, and in particular subss. 12 and 13 have specifically to
Supplemental Submissions Regarding Article 15:
From the Respondents:
48. The respondents commenced their further submissions with a reference to Article 6 of the Constitution which identifies the three distinct arms of government. Whilst the powers of the legislative branch are not strictly defined, Article 15 does set out some of its powers, but, in their view the express enumeration therein provided for, is not exclusive.
49. Where the boundary line runs between that branch and the other branches of government, may have to be determined on occasions. When necessary, the courts will define the nature and scope of its powers, but will do so on considerations not solely found within the precise terms of Article 15. While regard should be had to its exact wording, a more holistic approach to interpretation is required, in particular in relation to Article 15.10. To limit oneself to such wording would be to fail to understand the Constitution in its historical and comparative context. It is in this regard, that the approach of the Constitutional Review Group of 1967 (para. 33 supra), is criticised as being too literal and too simplistic, which as a result gave rise to some irrational conclusions.
50. Reference is made in this context to R. v. Chaytor & Ors. [2011] 1 A.C. 684 where the Supreme Court of the United Kingdom, when dealing with an assertion that expense claims of a member should be protected by parliamentary privilege, either based on Article 9 of the Bill of Rights 1688 or because of Parliament’s exclusive cognisance over such matters, eschewed a mere textual analysis or a formalistic approach and instead adopted an approach which centred on the constitutional principles, which determine what conduct should or should not be covered by such privilege. This approach was urged upon this Court.
51. The interpretive task of the courts must be carried out with regard to the raison d'être of the privilege, even though such is not expressly identified in the Constitution. That task however is threefold; it is to: (i) delineate the “zone of autonomy” of the legislative power, with Articles 15.10, 12 and 13 being indicative of same; (ii) determine the manner in which that autonomy can be exercised by employing a purposive interpretation of the subss. 10, 12 and 13, in particular regarding the interrelated concepts of power and protection; and (iii) harmonise such exercise with the other requirements of the Constitution, having regard to a historical and comparative law perspective.
52. If the approach as suggested is followed, it should lead to a conclusion that the historical British type relationship between the three branches of State, is reflected in the concept of parliamentary privilege which applies in this country. This concept, in the manner argued for, is also enshrined in the constitutional models of many Commonwealth countries, from which the framers of our Constitution drew inspiration: thus, the Court should also consult those documents.
53. Where the contours of the Constitution have been established by the courts, and when matters are found to fall within parliamentary privilege, then the courts are obliged to acknowledge that this is an area of immunity, or as it was put a “zone of self policing”, into which they must not trespass. Respect for the legislative organ means that the Houses of the Oireachtas have the sole task of exercising authority in respect of the relevant activity. Such activity includes the propriety of members’ conduct where such impacts on the reputation of either House in the discharge of its legislative power.
54. It is claimed that the privilege encompasses not only what is necessary to protect the Houses from unlawful conduct but also from conduct which would inhibit the exercise of their legislative roles, the integrity and efficiency of which, must be ensured.
55. Whilst it is acknowledged that a distinction can be drawn between the unwelcome attention of the executive on the one hand and the involvement of the judicial power on the other, nonetheless the exclusion of both is necessary so as to protect the legislative power. Historically the desire to confine the remit of the former, incentivised the development of the British law of parliamentary privilege. Whilst the judicial arm is far more benign, nevertheless it too, must be restricted as otherwise the separation of powers doctrine, would be breached. And so the term “protect”, in Article 15, must encompass protection of the discharge of the legislative function from scrutiny, even by the courts.
56. The rationale for the courts’ respect of parliamentary privilege is out of deference to the separation of powers, as required by Articles 6 and 15 of the Constitution.
57. In defining the boundaries of parliamentary privilege, the courts have consistently acknowledged that it stops at the precipice where non-members’ rights come into play (See Howlin at p. 367). The corollary should be that intervention is not permitted where members only are concerned.
58. Further dimensions of parliamentary privilege are covered by Articles 15.12 and 15.13, all of which can be better understood by reference to the jurisprudence of the Supreme Court of the United States on Article 1, s. 6, Clause 1 of their Constitution.
From the Applicant:
59. Mr. Callely politely but firmly objects to the Court revisiting this matter and points out that Articles 15.12 or 15.13 were not mentioned in the pleadings, or in the statement of opposition or in the notice of appeal; in fact these provisions were never relied upon in the High Court, where the case was fully argued, with no application ever having been made, either in that Court or in this, to amend the statement of opposition. Thus, it would be unfair and unjust to permit the respondents to introduce such new grounds at this stage of the proceedings (Director of Public Prosecutions v. Cronin [2006] 4 IR 329 is referred to).
60. On the privilege or immunity point, reliance is based on the concession made by the respondents, that the terms of Article 15.10, given their ordinary meaning, cannot be said to render the subject matter of Mr. Callely’s complaints, non-justiciable. This inevitable concession is the reason why they have been forced to rely on some secondary meaning, which in any event, on a strict construction basis, is not open.
61. The respondents’ reliance on British parliamentary practice is contrary to the long established jurisprudence of this Court that the powers and privileges of the Oireachtas are to be gleamed only from the express words of the Constitution. The British system is irrelevant to the Irish system; the latter was not modelled on the former (Maguire). There is no bar within the terms of Article 15.10 to the justiciability of statutory procedures. Thus, those at issue in the instant case are reviewable.
62. As a result of the presumption of constitutionality regarding legislation, it is submitted that every statute must be operated in compliance with the principles of constitutional justice as first set out in East Donegal Co-Operative, and as subsequently confirmed in many other cases.
63. In addition to the objection in principle regarding the introduction of Article 15.12 and 15.13 at this stage of the case, it is said that the persistent focus of the respondents on Article 15.10 (despite the concession above mentioned) and the lack of any citation of case law regarding subss. 12 and 13 in their supplemental submissions, demonstrate an “implicit or tacit” acknowledgment that those latter provisions are not directly engaged.
64. The procedures at issue in this case are statutory and the Court must endeavour to interpret the Constitution and the legislation harmoniously. The House could have established a Committee on Members’ Interests under standing orders if it so wished: if it had done so, a greater level of protection from judicial scrutiny may have resulted, but this was not the route opted for. Therefore the Court is perfectly entitled to scrutinise the constitutional fairness of statutory procedures undertaken by committees (Cane v. The Right Honourable the Lord Mayor & Ors. [1927] I.R. 582; In re Haughey [1971] I.R. 217; and Maguire). As the governing statute, i.e. the 1995/2001 Acts, provides for very specific safeguards for an affected person, any analysis of Article 15 must be conducted in light of this.
65. Finally on a discreet point the applicant says, that as the Oireachtas consists of the President and the two Houses (Article 15.2), committees, at least on the face of this provision, are not included. Accordingly Articles 15.12 and 15.13 do not apply if the CMI is found not to be a House of the Oireachtas. The provisions of s. 2 of the Committees of the Houses of the Oireachtas (Privilege and Procedure) Act 1976, which were in existence at the time, support this view.
Decision:
66. The basis upon which allowances are paid to members of each House is governed by statute and via permitted delegation, by regulations. The 1938 Act is the principle provision in this regard, having repealed similar statutes going back to 1923. Section 4(1)(c) of the 1938 Act states that such expenses are claimable from a member’s “normal place of residence for the time being”, without otherwise defining or describing what that might be. This and other provisions have been supplemented from time to time by regulations, with those in place for the period in question (May, 2007 to March, 2010) being the Oireachtas (Allowances to Members) (Travelling Facilities and Overnight Allowance) Regulations 1998 (S.I. No. 101 of 1998). The phrase “normal place of residence for the time being” continued to be used. The 1998 Regulations were replaced by the Oireachtas (Allowances and Facilities) Regulations 2010 (S.I. No. 84 of 2010) which however, because of their commencement date, are not material to this case. As can therefore be seen, the entitlement to and the obtaining of such allowances, is governed, in its entirety, by statutory provision.
67. The legal foundation which established the system or regime, including the underlying process which the applicant was subjected to, is likewise statutory in nature, in this instance being that as provided for in the 1995/2001 Acts. Before addressing these provisions in more detail however, some general comments about this legislation should be made, although it may seem trite and unnecessary to do so.
68. Unlike rules and standing orders, which each House can make independently of the other, both the 1995 Act and the 2001 Act (“the 1995 and 2001 Acts”) were brought about by the collective involvement of both Houses, operating under the provisions of the Constitution which enable legislation to be passed. Each Bill which gave rise to its corresponding Act was passed by both Houses of the Oireachtas and on presentation, was signed and promulgated into law by the President. This process was identical to that undertaken with the vast majority of Acts on our statute book. The creation of such legislation differed in no respect from those other Acts.
69. Every step of the process to which the applicant was subjected to, is set out and provided for in the 1995/2001 Acts, without which such process could not have been initiated, much less conducted and concluded, as it was. The accusation or charge which he faced was created by s. 4 of the 2001 Act: the entitlement of members of the public to a make complaint is articulated in s. 8(2) of the 1995 Act; the role of the Clerk to Seanad Éireann is set out in s. 8(3); the establishment of the CMI is mandated by s. 8(1), with its powers to conduct an investigation being given by s. 9: the requirement to furnish a statement of contravention and to supply other information to the member concerned is specified in s. 32(6)(b); the manner in which the investigation should proceed is also guided by s. 32, as is the right of the member concerned to give and call evidence, to test by cross-examination that given against him, to make submissions and to be legally represented. A report of the investigation must be compiled and must deal with the issues mentioned in s. 10(2): that report must be laid before the House per s. 10(1) and the Committee may cause a motion to be moved in the House in that regard. Such motion may ask the House to note the report and to censure and suspend the member. All of these last mentioned matters are specifically provided for in s. 28 of the 1995 Act. As is obvious therefore, every element of this procedure is also entirely statutory based.
70. Having decided to establish an investigation into the complaints received, it seems it was obvious from the outset that such had the potential to have serious consequences for Mr. Callely, both professionally and personally. That the allegations in question would be a significant matter for any individual cannot be doubted: to so accuse the holder of such a public position must indeed be serious. To determine and make findings as the CMI did, is an extremely grave matter. Not only did the Committee find that the applicant committed the misrepresentation as alleged, but it further held that such misrepresentation was on-going, was of a serious and grave nature and was done intentionally. In addition it held that the Senator had also, in effect, acted in bad faith. Moreover, to have the House of which one is a member, adopt a report and pass a resolution of censure and suspension without pay, must surely be a matter of the highest gravity.
71. In these circumstances it would require little evidence to conclude that such a determination, including the sanction and its endorsement by the House, could cause serious damage to a person’s good name and livelihood, both generally and in particular as a public representative, as well as in many other respects. There is no reason whatsoever to question the affidavit evidence of Mr. Callely to the effect that he was pilloried in the media, reviled by the public, ostracised by colleagues and acquaintances and abused by strangers. If ultimately those findings should stand, it is almost certain that irreparable damage will have been caused.
72. Whether such state of affairs is justified or not is entirely beside the point: what is to be noted is that the applicant was investigated by the CMI, which was empowered by legislation to make adverse findings which could be very damaging to his good name and reputation and to his right to earn a livelihood. In all other circumstances of which I am aware, where such a possibility exists, one would expect that the guarantee of fair procedures and constitutional justice would apply, and that for the vindication of such rights, an aggrieved person, if necessary, would have access to the courts. These are the cornerstone issues in this case. Despite the undoubted importance of the separation of powers, it is crucial not to lose sight of this point. Accordingly, it must follow, at least presumptively, that the constitutional rights of the applicant are engaged and that the issues relative to such rights, are amenable to judicial review.
73. The case of Doherty v. Government of Ireland & Ors. [2011] 2 IR 222 should be noted in this context, where Kearns P., when responding to a submission that the Court had no jurisdiction to entertain a challenge against the Government for failing to move the writ for a by-election, said at p. 241:
“It seems to me that there is ample precedent for concluding that decisions or omissions which affect or infringe citizens’ rights under the Constitution are prima facie justiciable.”
I entirely agree with such view.
74. Given the prima facie right to have the issues in controversy decided by the Court, the respondents, if they are to succeed in nullifying that right, must rest their case squarely within the Constitution. Henchy J. put the matter thus in Tormey v. Ireland & Anor. [1985] I.R. 289, at p. 297 of the report:
“Save to the extent required by the terms of the Constitution itself, no justiciable matter or question may be excluded from the range of the original jurisdiction of the High Court.”
75. As the 1995 Act and the 2001 Act are both Acts of the Oireachtas they, like all other such Acts, enjoy the presumption of constitutionality. Walsh J. in East Donegal Co-Operative outlined what is demanded as a consequence of such a presumption, from those who apply their provisions:
“At the same time, however, the presumption of constitutionality carries with it not only the presumption that the constitutional interpretation or construction is the one intended by the Oireachtas but also that the Oireachtas intended that proceedings, procedures, discretions and adjudications which are permitted, provided for or prescribed by an Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice. In such a case any departure from those principles would be restrained and corrected by the [c]ourts” (p. 341).
This passage was fully endorsed in In re Haughey.
76. Moreover the 1995 Act itself, in furtherance of the State’s constitutional obligation to protect and vindicate core rights, is structured in such a way as to recognise fair procedures. Section 32 makes detailed provision in this regard (para. 69 supra). If recourse to the court is denied, without the most compelling of reasons, the effectiveness of such guarantee is significantly denuded of purpose and is substantially eroded of value: in effect the judicial system is rendered impotent.
77. The respondents, in reply, claim that the Constitution itself demands such judicial exclusion: they base this on the fact that the applicant was a Senator at the time and that the investigation related to expenses. Indeed, in light of the decision in Maguire this argument would be quite unsustainable but for Mr. Callely’s membership of the House. Essentially therefore this issue, in the final analysis, is truly one of distinction, which turns on his status at the time.
78. In such circumstances, for the respondents to disassociate the 1995/2001 Acts from the East Donegal Co-Operative principle (para. 75 supra), particularly where the Committee is exercising its statutory functions, it would require convincing proof that such was necessary so as to satisfy some constitutional imperative, or otherwise to reflect mandatory constitutional provisions. To do so in my view, would require the most persuasive of argument and the most decisive justification.
The Relevant Articles:
79. Article 15.10 prescribes that:
“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.”
80. Article 15.12 sets out that:
“All official reports and publications of the Oireachtas or of either House thereof and utterances made in either House wherever published shall be privileged.”
81. Article 15.13 sets out the circumstances in which immunity applies to discussion, debate and deliberation in the House and in which members are privileged from arrest:
“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 amenable to any court or any authority other than the House itself.”
82. Finally Article 15.15 should be noted as this subsection authorises the Oireachtas to make provision by law, for the payment of allowances in respect of public duties, and travel and other facilities of members in relation thereto. It states that:
“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.”
The Key Inquiry:
83. In simple terms, the remit, ultimately, within which the answer to the key justiciability issue is to be found, is very narrow: it is Article 15.10. The difficulties which arise are: how this subsection of the Article is to be interpreted; what matters may legitimately influence such interpretation; how is it to be viewed in light of other specific provisions of the Constitution, and further when the structure and overall framework of that document is also considered. To that end the first matter which should be considered is Article 15.12 and 15.13 of the Constitution.
The Relevance of Article 15.12 and 15.13:
84. In the papers grounding the application for judicial review, the complaints which Mr. Callely sought to litigate were set out, as were the legal basis upon which he pleaded for relief. The basis so advanced has no unusual features to it, it being asserted that the investigation, findings and Report of the CMI - all of which were carried out, made or compiled pursuant to statutory provisions - breached a variety of his constitutional rights, as well as his right to fair procedures and constitutional justice. In adopting the Report, so tainted in this manner, Seanad Éireann by so doing, likewise violated such rights.
85. As was their entitlement to do so, the respondents took an objection, by way of defence, to the plea so made. They claimed that the matters above outlined were immune from judicial scrutiny on two grounds. The subsidary ground upon which this bar was asserted has never changed: from outset to conclusion, it has been said that the CMI, in operating s. 4 of the 2001 Act, was applying political standards which only the peers of the Senator, Mr. Callely could determine. That being so, the judicial process could not intervene, given the absence of any cognisable legal standard by which the Committee’s decision could be reviewed. This was therefore a classical issue of political ethics which the law, because of some intrinsic incapacity, was incapable of recognising.
86. The primary, and clearly by far the most important objection was based on the separation of powers. Article 15.10 was emphasised as being the bedrock of this plea. No reference whatsoever was made to Article 15, subss. 12 and 13: likewise, in the High Court submissions, in the High Court judgment, and in the original submissions made to this Court. Only after being invited by the Court to do so, did the respondents make reference to the last mentioned subsections of that Article. If subsequently they had sought to place some real importance on these provisions, one might have been sceptical as to why they had not done so earlier. But that did not occur at the re-opened submission hearing. Instead, the respondents confirmed that their intended reliance on those provisions extended only as to how such informed the proper interpretation of Article 15.10. In other words, as a source from which the true meaning of that subsection could be better ascertained. Otherwise they were not claiming that the privilege which they asserted was to be found within either of those subsections.
87. In these circumstances, save for the purpose last described, I do not believe that Articles 15.12 and 15.13 are central to this case.
Overall Structure:
88. Article 6 of the Constitution, which establishes a tripartite system of government for the State, does not specify or nominate the remit of each organ. However certain other Articles of the Constitution are also informative to this end, as is a consideration of its overall structure. In Articles 15 to 19 inclusive there are provisions regarding the national Parliament, with Article 15 entitled “The National Parliament” and sub-headed “C[onstitution and] P[owers]”. Articles 16 and 17 concern Dáil Éireann and Articles 18 and 19 deal with Seanad Éireann. The manner by which legislative law may be enacted and the relationship between the respective functions of each House in this regard, are set out in Articles 20 to 24 which follow. Article 28, which falls under the section headed “The Government”, and the following Articles, deal with the executive power of the State. The judicial branch of government is elaborated upon in Articles 34 to 37, inclusive. Thereafter provision is made for the trial of offences, with the fundamental rights section being contained in Articles 40 to 44 inclusive.
89. Whilst many of these provisions inform each other, and whilst in a case of need each should be read, if possible, as being mutually complimentary, it is not suggested at a level of detail or even at a more general level, that recourse to provisions outside those of Article 6 and Article 15 would be of particular assistance in resolving the justiciability issue in this case.
The Interpretive Point:
90. The issue as to how the constitutional provisions relevant to this case should be interpreted is an important one, and as it has a bearing, albeit not a decisive one, on other issues, I propose to deal with it at this juncture. When discussing this question, it is important to bear in mind that no one particular approach has attracted such dominance as might entitle it to pre-eminent status in this area. At the general level the courts, in a manner not entirely dissimilar to statutory interpretation, but always with a conscious regard to the Constitution being the basic governing law of the State, have adopted a variety of measures to best elucidate the true meaning of its provisions. Irrespective however of what particular approach may be favoured in any given situation, there remains an overarching obligation to view the Constitution as a whole and wherever possible, to arrive at a conclusion where the provisions in question best compliment, not only other similar, inter-related provisions with which they naturally identify, but also the framework and architecture of the Constitution itself.
91. The absence of some fixed or rigid approach, whilst obviously justified at a general level, is also desirable at the particular level. Whilst context may not necessarily be everything, without it everything is necessarily less. Therefore the nature of the right which is being asserted; the scope, breadth and reach of its purpose, its intended beneficiary or class of beneficiaries, its classification or positioning within the constitutional order, the requirements necessary to meet the suggested obligations, its direct and indirect effect and its relationship to and with other constitutional provisions, are all matters which will have influence, of varying degrees, on achieving the constitutional result which the charter, as a whole, demands. Consequently, whilst discussion at a general level is not only commendable but indeed is essential, care is nonetheless required so as to ensure that a proper focus at the particular level is also maintained.
92. As a starting point it is worth recalling the words of Walsh J. in The State (Browne) v. Feran & Ors. [1967] I.R. 147 where at p. 159 it was said:
“In the construction of a Constitution, words, which in their ordinary meaning import inclusion or exclusion, cannot be given a meaning other than their ordinary literal meaning, save where the authority for so doing can be found within the Constitution itself” (emphasis added).
Having referred to this dicta, O’Higgins C.J. in The People (Director of Public Prosecutions) v. O’Shea [1982] I.R. 384 at p. 397 expressed a similar view, namely that plain and unambiguous words should be given their literal meaning: he added that whilst the Constitution must be looked at as a whole, where doubt or ambiguity exists, regard may be had to other constitutional provisions and to the situation which obtained and the laws which were in force, at the time of its enactment. The latter remark was obviously intended to reflect the scope for some historical input, when to do so would be informative to the issue at hand.
93. Having cited both of these passages with approval, Murray J. in Sinnott v. The Minister for Education & Ors. [2001] 2 IR 545 (“Sinnott”) acknowledged at p. 680 that:
“…the Constitution is a living document which falls to be interpreted in accordance with contemporary circumstances including prevailing ideas and mores, [but] this does not mean, and I do not think it has ever been so suggested, that it can be divorced from its historical context. Indeed, by definition that which is contemporary is determined by reference to its historical context”.
94. This statement reflects a belief that the Constitution should be viewed as a dynamic document, to be understood in its entirety, and as one which naturally develops and continues to evolve over its entire lifespan, with, evidently, no single interpretation intended to last forever. In essence, an approach from each perspective has a role, which is what Hogan and Whyte’s JM Kelly: The Irish Constitution (Tottel Publishing; Dublin; 4th edition; 2003) saw, as being the outcome of that debate in Sinnott: at para. 1.1.40 it states that such “… reflected the competing appeals of both a historical interpretation and a ‘living document’ approach”.
95. Giving the unanimous judgment of the Court, Murray C. J. in Curtin v. Dáil Éireann & Ors. [2006] 2 IR 556 (“Curtin”) set out some general principles of constitutional interpretation (pp. 609 to 612). Having instanced several contextual variations which may require analysis, such as particular words of general import or words or phrases grounded on a more philosophical basis, e.g. those involving fundamental rights, the learned Chief Justice said that:
“[a] correct balance has to be struck between the effect to be given to the literal meaning of particular words and the need to have regard to the terms of the Constitution as a whole.”
96. Murray C.J. expressed the result of his analysis at pp. 610 to 611 as follows:
“Where words are found to be plain and unambiguous, the courts must apply them in their literal sense. Where the text is silent or the meaning of words is not totally plain, resort may be had to principles, such as the obligation to respect personal rights, derived from other parts of the Constitution. The historic context of particular language may, in certain cases, be helpful … This is not to say that taking into account the historical context of certain provisions of the Constitution excludes its interpretation in the context of contemporary circumstances.”
Having cited the passage above quoted from Sinnott (para. 93) the Chief Justice referred at p. 611 to what Hardiman J. had said, again in Sinnott, at p. 688 of the report:
“Tensions are said to exist between the methods of construction summarised in the use of adjectives such as ‘historical’, ‘harmonious’ and ‘purposive’. In my view, much of this debate is otiose because each of these words connotes an aspect of interpretation which legitimately forms part, but only part, of every exercise in constitutional construction”.
97. I agree with the above observations which in my view offer, at a general level, the required flexibility which is necessary, given the diversity of circumstances which may fall to be considered. In particular I think that what Hardiman J. said, highlights the imperfections of generality, renders unnecessary the sometimes strained attempts to categorise an approach in a particular way, and in any event has the great merit of reflecting what in many instances, actually occurs.
98. It is worth noting in this context, that the key issue in Sinnott was whether the guarantee of free primary education contained in Article 42.4 of the Constitution should be prescribed by the practice of education in 1937 or be interpreted more so, as to reflect modern societal trends. Curtin was a case where the executive branch of government sought to invoke Article 35.4 of the Constitution so as to remove a Circuit Court judge from office for what was alleged to be “stated misbehaviour” on his part. Evidently therefore the rights in issue, and the nature of the inquiry considered necessary to inform the provisions in question, differed in both cases and obviously are quite distinct from those which are engaged in the instant appeal.
99. Given therefore the range of circumstances in which interpretive issues arise, and noting how such can individually affect a court’s approach to such matters, it seems to me that logically, the closer the authority or precedent is to the instant case, the greater should be its influence and its assistance.
100. Accordingly, The Attorney General v. Hamilton & Ors. (No. 2) [1993] 3 I.R. 227 (“Hamilton (No.2)”) is of particular interest. In that case the Court was called upon to examine the privilege, and its scope, as contained in Article 15.12 and 15.13 of the Constitution. The need to so do arose out of a finding by the respondent, who was the sole member of a Tribunal of Inquiry established to investigate aspects of the beef industry, that members of Dáil Éireann could not be compelled, in testimony before it, to explain utterances previously made by them in that House or to identify the source of the information upon which such statements were based. A further issue was whether by making statements to the Tribunal, the members concerned could be regarded as having waved the protection afforded by the provisions in question. That matter is not relevant to this case.
101. When dealing with a submission which sought to have an extended interpretation of Article 15 applied, so as to include within the privilege thereby conferred, the statements made to the Tribunal, Finlay C.J. at p. 270 said:
“The provisions of Article 15, s. 12 and Article 15, s. 13 of the Constitution are explicit and definite in their terms, though the application of them may be a matter of complexity in certain instances. They constitute a very far-reaching privilege indeed to members of the Houses of the Oireachtas with regard to utterances made by them in those Houses. They represent an absolute privilege and one which it is clear may, in many instances, represent a major invasion of personal rights of the individual, particularly, with regard to his or her good name and property rights.”
102. Having noted a further constitutional restriction which is created by this immunity, namely the deprivation which the administration of justice suffers in not having available all relevant evidence in the discharge of its functions, the Chief Justice, for both of these reasons, approached the decisive issue of interpretation by stating: “… having regard to the analysis I have made of the provisions of the Constitution applicable, and taking the narrower or less liberal interpretation of them which I feel obliged to take …” (p. 271) (emphasis added). The passage continued by outlining the respective arguments of the parties and after some further discussion the Court (by majority), adopted this approach, and allowed the appeal on the issue in question.
103. What is of utmost importance of course, is that having regard to the absolute privilege conferred by Article 15.12 and Article 15.13, which by its very nature has the capacity to significantly violate the constitutional rights of others, with the gravest of consequences, Finlay C.J. in respect of their meaning, felt compelled to reject any approach based on a broad analysis or a purposeful overview, but rather opted for what he described as a “narrower or less liberal” approach.
104. As can be seen, Article 15.10 did not feature as such in Hamilton (No. 2). It was however directly in issue in Howlin v. Morris & Ors. [2006] 2 IR 321 where Hardiman J. dealt extensively with this construction issue (pp. 361 to 364). Having reviewed the wording of the subsection itself and being satisfied that there existed ambiguity in its terms, the learned judge, in the absence of specific judicial authority as to its meaning, referred to the “important authority” of Hamilton (No. 2). At p. 363 he continued:
“For analogous reasons, principally the interference which the immunity represents to the rights of individual third parties and to the public right to have very grave allegations about members of An Garda Síochána, the police force of the State, properly and transparently investigated, I believe that it is right to adopt the strict construction of the immunity contained in Article 15.10. The subject matter of Article 15.10 and of Article 15.12 and 13 are sufficiently similar to make the analogy a useful one. They are not, however, at all identical, as will appear below and an analysis of sub-Articles 12 and 13 is by no means interchangeable with that offered below of Article 15.10. But there is the essential common feature of a privilege or immunity extending only to parliamentarians and which may impact on the rights of other citizens or those of the public generally.”
Accordingly, as can be seen, this represents direct authority on how Article 15.10 might be construed.
105. There can be no doubting the enormity of the immunities which are provided for by the provisions of Article 15.10, Article 15.12 and Article 15.13 of the Constitution. In argument, counsel on behalf of the respondents described them as “awesome”, saying that even in the face of injustice, the courts were required to step back in the interest of good governance. They are conferred on one body of citizens only, namely parliamentarians: their exercise may have the potential of inflicting grave damage and creating even life threatening consequences for third parties who, despite the circumstances, must remain without legal redress as the justice system is left powerless to intervene.
106. The justification for such privileges and immunities is undoubtedly substantial and must be both acknowledged and respected. However, the effective and unfettered exercise of the duties and functions of the legislative arm would not be unduly affected if the parameters of such immunities are viewed strictly. In such way, that organ of the State can perform its functions in a manner entirely compatible with the Constitution whilst the judicial arm can ensure that its role, as the administrator of justice serving those who seek recourse to it, is not restricted, limited, or indeed even ousted any more so than is necessary. Such an outcome fits with the overall structure of our constitutional order. It also accords with the obligation to view the Constitution “… in the manner most likely to make it an effective instrument for the ordering of society and the governing of the Nation …”: The Attorney General v. Hamilton [1993] 2 I.R. 250 at p. 267. Therefore I believe that both Hamilton (No. 2) and Howlin (Hardiman J.), are correct in their respective interpretive approaches to those subsections of Article 15 and accordingly I would propose to adopt them.
The Influence of British Parliamentary Privilege:
107. In approaching the text of Article 15.10 it is highly instructive to pay particular attention to the argument: in this regard it struck me that, as impressive as the written submissions are, the respondents’ position on key aspects of the case is better understood when their oral articulation is also considered. Even then, that position is very definite and clear cut on some matters, but less so and perhaps even vague and aspirational on others. They accept, as I think they must, that in the context under discussion, the status which Parliament historically once enjoyed is no longer. The Constitution is now the charter of all powers exercisable in the State. Parliament therefore has only such powers as the Constitution accredits to it and evidently, their exercise are subject to and prescribed by, its provisions.
108. It is submitted that the legislative power of the State includes parliamentary privilege: this privilege is an aspect of such power. Whilst Article 15.10, which is premised on Article 6, does offer some guidance as to the scope of the legislative power, it is far from being prescriptive to that end. In fact, it is said that the provision in itself should not be viewed as the starting point of the required analysis for establishing the parameters of such power. Indeed counsel for the respondents go much further, claiming that it would be quite dangerous to first consider the subsection, certainly if approached in isolation. It is then suggested that any literal construction of Article 15.10 must be resisted, as must be the temptation to reject the respondents’ submission simply because, there is no express ouster of court intervention in that subsection, such as to be found in Article 13.8, Article 15.13, and Article 28.3.3 of the Constitution. What is required therefore, is a holistic approach as to its meaning.
109. What the real point of this submission seems to be is that both legislative power and parliamentary privilege have their own autonomous meaning, to be ascertained from some overview of the Constitution, which exercise of itself, should be approached from what is described as a contemporary constitutional perspective. Noting the differential constitutional history which the Constitution has been exposed to, it is acknowledged that this is a difficult task, particularly as some aspects of that history are appropriate and others are not. Challenging however as it may be, in interpreting Article 15.10 and to understand the concepts of legislative power and parliamentary privilege, it is essential in so doing to have regard to the historical context. Therefore any interpretation which does not embrace such a perspective, is flawed.
110. It is therefore claimed that such an exercise must inevitably be influenced by the British parliamentary system, to which this jurisdiction was exposed for several centuries. It is only in this way that one can find, within Article 15.10, the source of the parliamentary privilege which the respondents rely upon. When that has been achieved the contours of the respective boundaries between the legislative branch and the judicial arm, can be seen and will thus become evident.
111. This submission in my view cannot be accepted as having the influence suggested, for to do so would deny a vital understanding of, and would effectively disown the national understanding of, the new constitutional order as established in 1937. and indeed even, but admittedly to a lesser extent, in 1922.
112. The supremacy of the British Parliament which existed for centuries was a pivotal pillar of the constitutional history of Great Britain, and Great Britain and Ireland when this country was under Westminster rule. Upon obtaining sovereignty, this Nation’s historical classification ceased; as did, in its essential terms, the parliamentary model of that age. Ever since, all powers of government derive from and vest in the people. Those powers were, as remains the case today, assigned to the three branches of government. No one branch enjoys paramountcy over another - all three individually are to exercise the powers of State, within their respective remits, and are to collectively act as a whole. In essence, the new constitutional scheme marked, as was intended, a definitive break from the former model of government and with that rejection, relegated the previous practice of parliamentary sovereignty and the privileges attended on it, to history. There was therefore on the one hand, a clear departure from the past and on the other, the self-evident creation of a new beginning, a new State, with its own structure of government. See Byrne v. Ireland & Anor. [1972] I.R. 241 (“Byrne”). This had come to full fruition by 1937. In all of its aspects this new order is to be found within, and is regulated by the Constitution, and not in any manner external to it.
113. The context in which the Constitution of the Irish Free State came to be drafted and its historical backdrop was referred to in some detail by Kingsmill Moore J. in In re Irish Employers Mutual Insurance Association Ltd. [1955] I.R. 176 (“In re Irish Employers”) at pp. 223 and 224 where, in contrasting the background to the establishment of the Canadian Constitution, he pointed out that whereas with the latter there was self-evidently a desire to adopt a Constitution similar in principle to that of the United Kingdom, that was certainly not the situation in Ireland. The learned judge said:
“Very different was the historical background of the Saorstát Éireann’s Constitution. It arose out of an armed revolt against British rule and the terms of a Treaty to put an end to hostilities. Of those who enacted it nearly all had been engaged in the revolt in one way or another and many had actually borne arms. There is not the slightest reason to suppose that ‘with a view to the perpetuation of the connection with the Mother Country’ they desired ‘to follow the model of the British Constitution so far as circumstances permit.’ The admitted reproduction in the Constitution of many of the features of the British Constitution is more properly attributable partially to a genuine appreciation of the inherent excellence of those features, partially to the fact that the Constitution had much of the nature of a compromise between British and Irish views.”
114. A passage from the judgment of Ó Dálaigh C.J. in Melling v. Ó Mathghamhna & Anor. [1962] I.R. 1 (“Melling”) is also highly instructive in this regard. He said at p. 46:
“The United States of 1775 which emerged as a republic looked upon itself as securing to itself the rights and privileges of the glorious revolution of 1688. A once-happy colony was being driven by the selfish taxation policies of the Westminster government to sever its connection with the homeland. The parting was made in sorrow as the recitals to the Declaration of Independence bare witness. Ireland’s case in 1922 was different. The framers of the Constitution of Saorstát Éireann had no particular reason to look with reverence or respect to the British statute roll in Ireland as affording them an example of standards which they would wish to enshrine in their new Constitution.”
115. Having reviewed both of these cases, Denham J. in Maguire & Ors. v. Ardagh & Ors. [2002] 1 I.R. 385 summed up her view of the position at p. 561:
“The Irish Constitution, both in 1922 and 1937, had the benefit of modern constitutional concepts and people with a vision of a new Irish State. There is no reason to assume that the privileges and powers of the House of Commons would naturally be an incident of the representative assembly in Ireland. Indeed there is evidence to the contrary.”
116. Professor Kohn, in his book, The Constitution of the Irish Free State (Allen & Unwin Ltd.; London; 1932) dealt with parliamentary privilege in several places but in particular at pp. 229 to 233. He made a number of observations which are both interesting and informative. Firstly, he said that the “latent powers of extensive scope”, which the concept of parliamentary privilege vested in the British Parliament, “has been restricted by the Irish Constitution within … narrow limits”. Secondly he spoke of the power of each House to make its own rules and standing orders and having done so, of the “exclusive cognisance”, which each individual House enjoys over and in respect of, the matters thereby covered. Thirdly he felt that the power to attach penalties for breach of such rules and standing orders is limited to the disciplinary measure of suspension and that Parliament has no authority to inflict any other form of penalty, nor the power to expel a member, both of which undoubtedly still existed at the time in the House of Commons.
117. The Professor then continued at p. 232:
“It is inevitable that there should be a certain tendency to view the Oireacthas in the light of the conceptions inherited from the House of Commons; but it is evident from the context of the Constitution that the Irish Parliament is not the omnipotent assembly for which Dicey could claim that its powers ‘make a near approach to an authority above that of the ordinary law of the land’. Its scope is so rigidly fixed by the terms of a written Constitution, its functional relationship to the other organs of the State so clearly defined, that it is not permissible to invest it with those attributes of ‘sovereign’ authority which have accrued to the House of Commons during its conflicts with the Crown. It is invested by the Constitution with comprehensive and adequate powers to regulate its business and to maintain its authority. It has none other.”
118. This I regard as a statement of high authority as to Ireland’s departure from the pre-1922 form of government and also as to the strict confinement of parliamentary powers to those as stated in the Constitution, and none other.
119. In addition, based on the analyses conducted by this Court in In re Irish Employers, Melling and Maguire, there is no evidence to suggest that the framers of the 1937 Constitution were minded to continue the scope of the former immunity into the new order and in the process to isolate representative members of Parliament from recourse to the fundamental rights section of the Constitution. Furthermore, as I will show, such a denial of rights is neither necessary nor required for the legislative power and thus would have been imported only because of this country’s historical connection with Great Britain. Given however the manner in which Ireland’s separation from that country was achieved, such seems most unlikely. The fact that not every vestige of such history was eliminated, does not affect this conclusion. I therefore cannot accept that on the basis of a historical perspective, the 1937 Constitution has been so overtly influenced, in the way and to the extent, which the respondents assert.
Not Determinative:
120. The view which I have taken on the proper approach to the construction of Article 15.10 does not of itself determine whether the immunity claimed is within the subsection. Before proceeding further however, it is important to state, or perhaps even restate that if the asserted privilege exists, the same must have its foundation within the Constitution; this follows from the supremacy and the self-contained nature of that legal order. If not so found to rest within its provisions, there can be no basis otherwise for its existence. This is entirely supportable at the level of principle: it is also confirmed by authority: in Byrne, Walsh J. said at p. 281 that:
“… the whole tenor of our Constitution is to the effect that there is no power, institution, or person in the land free of the law save where such immunity is expressed, or provided for, in the Constitution itself.”
See also, inter alia, that part of the passage from The State (Browne) v. Feran & Ors. [1967] I.R. 147 which is emphasised at para. 92 supra and also the comments of Keane C.J. in Maguire which are next quoted.
121. Such privilege, in the manner contended for by the respondents, is not, as is conceded, to be found in Article 15.10 by way of express provision: this is clear from the face of the provision itself and is reinforced by what Keane C.J. said in Maguire. Having quoted Articles 15.10, 12 and 13, the Chief Justice observed:
“These extensive immunities and privileges, denied to citizens who are not members of the House of the Oireachtas, are an important feature of the parliamentary democracy established under the Constitution. Neither these provisions, however, nor any other provision of the Constitution expressly exempts from scrutiny by the courts the actions of the Oireachtas or its individual members save to the extent specified in Article 15.12 and 13” (p. 537).
122. It is however said that the subsection can be regarded as ambiguous and so resort may be had to the second tier of interpretation, so as to penetrate its outer layer and explore what may lay inside, so that its true meaning may be found. Whilst generally “ambiguity” and expressions with similar intent, have been the gateway to look behind the actual words used, I would also accept that where provisions are silent as to the matters agitated, such may also be similarly regarded for construction purposes.
Meaning of Article 15.10:
123. The fact that a conferral of such immunity cannot be found within its express terms is not conclusive as to its meaning. That omission, which I will come back to and which cannot however be disregarded (para. 145 infra), does not of itself necessarily and inevitably lead to a conclusion that what is argued for, is an unwarranted assumption of power by the House. In this regard I would accept at the level of principle that the infrastructure, which is both indispensable to and necessitated by the exercise of legislative power, may also enjoy what immunity attaches to that power. What remains the challenge however is whether such immunity can, and as a matter of law should, be inferred or read into the provision. In conducting this assessment the Constitution must be viewed as a whole.
124. Hamilton C.J, in Haughey & Ors. v. Moriarty & Ors. [1999] 3 I.R. 1 at p. 32 touched very much on what may be considered an adjunct to express power: at p. 32 the learned Chief Justice stated the following:
125. I agree with this view subject to one point which is really one of clarification rather than expansion. The reference to powers which “… are exercised by a legislature in a democratic state” are not in my view intended to mean that one can look at other States, which are described as democratic, and confer on the Houses of the Oireachtas the powers which the Legislative Assemblies of those States, enjoy. As the structure of government in many democratic states will vary considerably, as undoubtedly will their constitutions, that could not have been what was envisaged. I think that the true meaning of the phrase is that, by reference to Article 5 of the Constitution, which declares the democratic nature of the State, and noting the overall system of divisional responsibility which each branch of government has, the legislative branch is not restricted in its powers to those which are expressly found in the Constitution, but is also afforded with such additional powers as are necessary for the essential discharge of its functions. In all circumstances however, such powers must exist within the Constitution and of course are subject to and governed by its provisions.
Article 15.10: Absolute Judicial Exclusion Not Asserted:
126. The respondents do not argue that what is involved in or covered by Article 15.10, expressly or impliedly, is deserving of absolute immunity. They do not make that case. They accept that judicial entry can occur, indeed at several different levels, occasioned in a variety of circumstances. If either House fails to make rules and standing orders, such would be a breach of the Constitution and would be justiciable: the nature and scale of the penalties which might be legitimately included for their breach, might likewise be reviewed. A provision in the rules for a jail sentence, or one with similar severity for say, unruly behaviour, would be reviewable. Conduct by members which could amount to offences like fraud, false pretences, dishonesty, and evidently those of a more serious nature, could attract the criminal process. A rule in standing orders, indeed even in legislation, which would deny a person in the position of Mr. Callely any right to be heard could be looked at. The prohibition contained in Article 15.4 of the Constitution continues to apply, as does the President’s right to refer a Bill including e.g. at the time, the Bills which gave rise to the 1995 Act and the 2001 Act, to the Supreme Court under Article 26. There are further examples but these suffice to show that even on the respondents’ own argument, immunity in an absolute sense is not suggested. Indeed, quite evidently as it was put, the House cannot have control over all aspects of a member’s life.
127. So judicial access at different levels is permitted but apparently as here, where the “complained of” is a member of Seanad Éireann and where the “complaint” relates to expenses, it is not.
128. What is highly interesting about this point, indeed far more so than the acknowledgement that absolute privilege does not exist, is that even when intervention can take place, the courts’ jurisdiction to involve itself was said to be highly circumscribed. It was contended that access, in most of the examples above given, is permitted only on the basis of the courts’ role as the ultimate adjudicator of what is included in or excluded from the remit of the legislative power. The scope of review does not exist beyond this parameter and does not succumb to provisions of the Constitution which are not directly relevant to such exercise. It therefore follows that intervention is not permitted because of the court’s obligation to vindicate rights, but rather and solely, on the basis of determining whether the legislative branch has exceeded its powers, as duly conferred. It is therefore only those provisions of the Constitution which relate to the separation of powers that can form part of this analysis. These do not involve provisions such as Articles 40 to 44 of the Constitution.
129. I would entirely reject this submission: what is the exclusive domain of the legislative arm remains solely a matter for it. There is no question of this, or, I suspect, the executive arm, either now or indeed ever, attempting to exercise a function which is exclusively that of another branch of government. Hardiman J. went to very considerable length in Howlin v. Morris & Ors. [2006] 2 IR 321 to emphasise this point (p. 366). However, when judicial intervention is permitted by the Constitution there is no basis, at any level of justification, for the imposition of such restrictions. The courts either can or cannot intervene but when they do, the basis for their authority in so doing derives from their obligation, as the ultimate guardian of constitutional rights, to uphold and protect such rights, when called upon. Therefore when appropriate to do so, the exercise by the judicial organ of its constitutional powers, cannot be trammelled, in the manner suggested.
Case Law Relevant to Article 15.10:
130. There has been some case law in this general area and also on Article 15.10 of the Constitution as well as on Article 15.12 and 13. In Wireless Dealers Association v. Minister for Industry and Commerce & Ors. (Unreported, Supreme Court, 14th March, 1956) (or “Wireless Dealers”) the Court was asked to injunct the Minister for Industry and Commerce from introducing a Bill in Seanad Éireann after it had been initiated and passed in Dáil Éireann. Under Article 20 of the Constitution, every Bill so initiated and passed, “… shall be sent to Seanad Éireann …” for its consideration. Maguire C.J. took the view that what the plaintiff sought to do was to directly interfere with the process of legislation which the Constitution had entrusted solely to the Oireachtas: he added that if the Court could be engaged at that stage of the process, the Constitution would have said so. It did not: therefore there was no warrant for the Court to intervene.
131. In a concurring judgment, Ó Dálaigh J. also rejected the application on the basis that it sought to obstruct freedom of debate and otherwise to interfere with the free deliberations of each House, which Article 15.10 expressly conferred.
132. Mr. O’Malley (O’Malley v. An Ceann Cómhairle & Ors. [1997] 1 I.R. 427), then a member of Dáil Éireann, was dissatisfied with a ruling of an Ceann Cómhairle which disallowed in part a question which he wished to ask a Minster. He sought to challenge the ruling as a breach of the standing orders of the House. He was refused leave on the basis that the Court could not interfere in the internal affairs of Dáil Éireann. The Supreme Court agreed, and in giving the judgment of the Court, O’Flaherty J. said at p. 431:
“How questions should be framed for answer 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”.
133. The challenge in Haughey included a suggestion that the Seanad was improperly convened when passing certain resolutions pursuant to the Tribunals of Inquiry (Evidence) Act 1921: the High Court refused to consider this ground on the basis, as stated by Geoghegan J. that:
“these matters were not justiciable in the courts on the grounds of the constitutional separation of powers. The Dáil and Seanad regulate and enforce their own procedures” (p. 16 of [1999] 3 I.R. 1).
134. Both the Divisional Court and the Supreme Court in Maguire dealt extensively with the issue of justiciability in the context of the separation of powers and in particular by reference to Article 15.10 of the Constitution. In that case, the Houses of the Oireachtas, through a joint committee, established a sub-committee to inquire into the death of a man who was shot by gardaí in April, 2000. That sub-committee exercised the power, previously obtained, to issue directions, to compel the attendance of witnesses and to require them to give evidence before it. The sub-committee made it clear that it considered its role as “adjudicative” in nature (see p. 411) and that as part thereof it intended to make findings of fact and express opinions which could have very serious consequences for third parties. The applicants who were members of An Garda Síochána objected and instituted judicial review proceedings seeking inter alia to quash the relevant directions.
135. Morris P., in delivering the judgment of the Divisional Court, stated at p. 413 that “matters internal to the workings of [P]arliament in carrying out its legislative power or alternatively in dealing with its own members”, could not be subjected to judicial review. At p. 537 of the report, Keane C.J., having outlined the provisions of Articles 15.10, 12 and 13, made the observations quoted at para. 121 above, and then continued:
“[T]he courts have made it clear that they will not intervene in the manner in which the House exercises its jurisdiction under Article 15.10 to make its own rules and standing orders and to ensure freedom of debate, where the actions sought to be impugned do not affect the rights of citizens who are not members of the House”.
McGuinness J. at p. 628 said:
“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 of those matters are non-justiciable in accordance with Article 15.10”.
The learned judge then focused on the issue in question, namely whether such immunity extended to cover persons who were not members of either House. Having referred to the power of the Committee in question, to compel the attendance of witnesses, the judge continued at p. 629:
“Could such non-justiciability extend to a situation where, for instance, the members of a committee were in blatant breach of the standing orders of the House itself and that breach affected the rights of non-members? It seems to me that it could not”.
Geoghegan J., again in Maguire (at p. 736), said:
“While it is true that out of respect for the separation of powers the courts will not intervene 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”.
136. None of these cases in my view are authority for the proposition that the courts, by virtue only of the wording of Article 15.10 or on the basis of any necessary implication to be derived therefrom, are excluded from their constitutional role when called upon to uphold an individual’s constitutional rights. Wireless Dealers can be seen as an attempt to directly impede the very process of legislation itself and also as an attempt to obstruct or curtail debate within the House. O’Malley raised an issue which classically fell within the normal range of activity which each House must engage in, so as to conduct its business. Far from that Court’s decision being surprising, it could rightly have been criticised, if it intervened, given the subject matter of the complaint. That, in essence, leaves Maguire.
137. The remarks of the Divisional Court in that case, which are referred to at para. 135 above and which I have taken from the High Court’s judgment in this case, are required to be given their proper context, which is to be found at p. 413 of the report. Immediately preceding the passage as quoted, the Court, having referred to a number of cases, including O’Malley, recorded that such decisions “… all deal with matters internal to the workings of [P]arliament in carrying out its legislative power or alternatively in dealing with its own members”. The observations of the Chief Justice above cited seem to be directed towards the manner in which each House can make its own rules and standing orders under Article 15.10, rather than towards dealing with a situation where such rules and standing orders have no application. The comments of Geoghegan J. are likewise referable to such rules and standing orders and in any event, if anything, his overall views can be regarded as being restrictive in nature rather than expansive in purpose.
138. Whilst I accept that the passage quoted from the judgment of McGuinness J. is capable of expressing the view that issues regarding members are non-justiciable, nevertheless, this was clearly obiter, as an essential feature of Maguire (previously noted), was the potential impact which the inquiry, given its powers and intended role, could have on non-members. That point was at the heart of that case, not as here where the applicant is a member of the Seanad. Therefore I do not accept the breadth of the submission that the passages above outlined establish a fundamental basis for the immunity proposition as made.
139. There is one further passage from the judgment of Keane C.J. in Maguire which should be cited: it reads:
“It should be noted that it was not submitted on behalf of the sub-committee … that the claim as to non justiciability extended to the compliance or otherwise of the committee and the compellability committee with provisions of the Act of 1997. It was also accepted that the High Court was entitled to examine the procedures undertaken by the sub-committee with a view to ascertaining whether they complied with the requirements of natural justice and fair procedures, a concession inevitably made in the light of the decision of this [C]ourt in In re Haughey” (p. 534).
This is quite an important statement, the validity of which has not been challenged in this case.
The Constitutional Review Group (1967):
140. And so, the Constitution needs to be looked at as a whole, with particular focus not only on the express powers of the legislative arm, but also on what is required or implicit so that such powers can be effectively and efficaciously used. As one must look at what the Constitution positively provides in this regard, the corollary is of course that one must also search for contra indicia which might be suggestive also of the answer. First however, I should refer to the report of the Constitutional Review Group of 1967.
141. Like Geoghegan J. in Howlin (p. 383 et seq.), I find myself impressed with the examination of Article 15.10 which was conducted by this Group. Paragraphs 36 to 40 inclusive of its report are particularly instructive. In summary, its views on this provision, which it described as “presenting some difficulties” can be stated as follows:
(i) The subsection contains no reference to the non-applicability of other provisions of the Constitution, such as is found for example in Article 28.3.3. That being the case, it follows that the pivotal provisions dealing with the administration of justice and fundamental rights, continue to apply. As a result, the powers of each House are not as extensive as might be found in other parliaments, such as in Britain.
(ii) The power to attach penalties applies only to breaches of rules and standing orders - no such power is given in respect of the other matters covered by the subsection, such as the power to ensure freedom of debate, to protect official and private papers and to protect themselves and their respective members from molestation or corruption.
(iii) The Oireachtas can only operate on a conferral basis: its powers are those set out in the Constitution and not otherwise. In view of the structure of the Constitution it would be remarkable for there to exist parliamentary privilege of the kind suggested, without much further comment on it within Article 15.10. The wording of this provision does not indicate such an intention.
(iv) The scope of Article 15.10 empowers each House to deal with internal matters of procedure and discipline only and to punish its members, including the power to withdraw privileges, for breach of its rules or standing orders.
142. The report went on to suggest that subject to the foregoing, a special Act of Parliament should be enacted so as to deal with all other offences against Parliament and its members, just as many other countries have done. That of course has never happened in this jurisdiction.
143. Geoghegan J. in Howlin, having reviewed this report, said:
“The most that can be said is that Article 15.10 does seem to assume that, independently of the terms of Article 15.10 itself, the freedom of debate, the protection of official documents and the protection of private papers of members were all natural to the efficiency and efficacy of a [H]ouse of [P]arliament. The main purpose of Article 15.10 is to dispense with the necessity for legislation to secure these freedoms and protections by allowing each House to make its own separate rules relating to them” (p. 385).
144. This instructive discussion of Article 15.10 by both the Constitutional Review Group and by Geoghegan J. would seem to suggest that, the privilege or immunity claimed in this case, has no presence within its provisions. The reasons why the Constitutional Review Group came to this conclusion, which are clearly stated, are varied and self-explanatory, and whilst not conclusive, are at least indicative, if not even more so, that Article 15.10 should not be understood as having the breadth of immunity which the submission seeks to assert.
145. There is one aspect of this notable analysis however which I wish to further comment on: it relates to the absence of an unequivocal declaration of ouster in Article 15.10, as found in other provisions of the Constitution, and whether such is fatal to the respondents’ assertion. As I read the report, the Constitutional Review Group did not so conclude but instead treated its absence as a factor in its overall view of the subsection. I would approach it in much the same way, for to do otherwise, would be to treat silence, in and of itself, as some sort of principle giving rise to an absolute bar, which cannot be. Furthermore, The Attorney General v. Hamilton [1993] 2 I.R. 250 shows that such an approach may be inappropriate. In that case what crystallised the Court in holding with cabinet confidentiality was that, the contrary view had the potential of paralysing the cabinet in its responsibility to collectively meet, collectively discuss, be collectively responsible for each and all departments of State, and be collectively accountable to the Dáil. In other words, without such protection, the very essence of its functions would be seriously compromised. Therefore the absence of a non-justiciability provision, such as found in Article 15.13, is not conclusive but is nonetheless strongly indicative of the provision’s true meaning.
146. The following questions must therefore be asked: in what way will the efficiency and efficacy of the House be curtailed if the breadth of parliamentary privilege as claimed, is found not to exist: how would the House be obstructed in the discharge of its functions or frustrated in the conduct of its core and essential business? No answer of any real substance has been given to these critical questions: certainly none that resonates with me. It is not suggested nor could it be, that the process of legislation itself would be interfered with or that such immunity is a necessary feature of that process. Nor is it claimed that freedom of debate is impaired, nor that full deliberation is curtailed, nor that the Seanad’s role, relative to matters covered by rules and standing orders, would be compromised. At its height, it is said that the House must have disciplinary control over its members, when expenses are involved, and that such must be a necessary adjunct to its powers. Whilst Mr. Callely was obviously a member of the House at the time and whilst expenses relate to his attendance at the House, those factors in themselves are not sufficient to carry this submission. In the absence of an express immunity provision, it becomes necessary to establish, if such is to be inferred, that its constitutional role will otherwise be critically impaired. I cannot see how this would result or follow if the actions of the respondents are subject to judicial review. How such might impact on good governance or why the suggested immunity is central to the form of governance required by the Constitution, have never been satisfactorily answered. Consequently, I do not believe, at the level of principle, that the immunity argued for can be inferred either as a constitutional imperative or otherwise to achieve some overriding constitutional objective.
Standing Orders:
147. Much discussion was had regarding S.O. 90 during the course of this case. As will be recalled, Article 15.10, by express provision, gives to each House the power to make its own rules and standing orders. Such a jurisdiction, and the manner in which it is exercised, certainly in respect of non-members, is not, according to Keane C.J. in Maguire, reviewable by the courts. The applicant, in argument, suggested or even agreed, that if the process to which he was subjected was provided for by such rules and standing orders rather than by statute, his case would be much more difficult. This, on the basis that, in respect of matters properly within such rules and standing orders, each House is the Master of its own affairs and thus on an express constitutional basis, its acts and omissions are immune from judicial scrutiny. It is unnecessary to pass any comment on this concession, other than to note it.
148. The respondents in this regard seek to argue that by reason of S.O. 90, it can be said that such process may be regarded as coming within the rules and standing orders of the House, as that phrase is understood in Article 15.10. In other words, S.O. 90 establishes the necessary link between the 1995 and 2001 Acts and the standing orders of the House, so that the former can be considered as being part of, or otherwise as being incorporated within, the latter.
149. I cannot accept this submission. It seems to me that S.O. 90 owes its entire existence to the Oireachtas and not to Seanad Éireann. The immediate and only backdrop to its creation, resulted from a statutory obligation imposed on each House by virtue of s. 8 of the 1995 Act. Thereunder the “select committee” envisaged by that provision was established, and is of course in this judgment known as “the Committee” or “the CMI”. Its existence was not linked to or associated with Article 15.10; nor was it established by the House under its powers, as given in standing orders, to appoint committees, which it has done from time to time. Further, its basis is also quite unlike all other provisions of such standing orders. In effect, Seanad Éireann was no more than the nominated agent by which it was created. Moreover, such a committee exists for the sole, but obviously important purpose, of discharging the functions conferred on it by the 1995/2001 Acts. Those functions cannot be varied or altered by the House. It therefore has no existence or purpose independent of such Acts. Consequently, in my view, the process involved in this case cannot be said, by virtue of S.O. 90, to be part of the rules and standing orders of the House, as such are envisaged by Article 15.10 of the Constitution.
150. This conclusion is patently evidenced also by the fact that the Senator was not accused of breaching any rules or standing orders. No mention of such is to be found either in the statement of contravention or in the Committee’s findings and determinations. Consequently, in my view, as the standing orders of the House have nothing to do with this case, the respondents cannot rely on the privilege which Article 15.10 confers in this regard.
151. A broader consideration of standing orders is also instructive as to the type of issue or activity covered therein. Matters that are dealt with include, the leader and deputy leader of the House, its terms and sittings, order of business, rules of debate including provisions regarding disorderly conduct and the suspension of members, divisions and voting, committees, official reports and the various stages of Bills which pass through its chamber. As can therefore be seen, neither when examined individually, or when viewed overall, is there any indication, even in the most general sense, that disciplinary matters arising out of expenses would normally or naturally fall within their purview or remit.
152. In this context I wish to state that no issue arises in this case, as to what the constitutional position would be if by standing orders, the House could and did make provision for expenses and/or for a disciplinary process as has been made by the 1938 Act and the 1995/2001 Acts, respectively. That simply does not arise and accordingly I expressly reserve my opinion until, if and when such circumstances should arise.
153. My conclusion is further supported by the enactment of the 1995 Act and the 2001 Act which establish the legislative basis upon which each constituent step of this process was taken. In proceeding solely by legislation which confers rights on third parties, who are neither members of either House nor employees in the public service, the House cannot rely, in respect of matters thereby covered, on Article 15.10. There is therefore no constitutional immunity which prevents the Court reviewing the operation of such statutory provisions. Cane v. The Right Honourable the Lord Mayor & Ors. [1927] I.R. 582 is and remains good authority in this regard. Consequently, on this basis also I would reject the submission made on behalf of the respondents.
154. There is a further ancillary reason which supports the conclusion which I have reached. In my view it must be doubtful whether the question of expenses was ever intended to be covered in “rules and standing orders” as envisaged in Article 15.10. By express constitutional provision the remuneration of the Chairman and Deputy Chairman of each House must be determined by law (Article 15.9). Equally so, the payment of allowances and travel expenses, as in this case, to each member of the House must be provided for by law (Article 15.15). Indeed there are further provisions of the Constitution which expressly require legislation in respect of the raising and deployment of public expenditure (Articles 17, 20, 21 and 22). Consequently, it may well be that all matters in respect thereof should more properly be dealt with by legislation or regulation, rather than by rules and standing orders. It is therefore likely that this is also a reason why provision has not been made in the standing orders of the House, to cover such expenses.
155. Finally, in an overall context it is worth quoting the following passage from Mr. David Gwynn Morgan in The Separation of Powers in the Irish Constitution (Dublin; Round Hall; 1997) at p. 224 which was cited with approval in Maguire at p. 419
“Thus, the conclusion which one can draw, provisionally, is that where no legislation is involved, the courts have no compunction about exercising jurisdiction to enforce the Constitution or other rules, in regard to the affairs of the Dáil or Senate. In expressing this conclusion, in the language of the separation of powers, one should recall that, theoretically, as was explained above in Chapter 3, separation might exist in respect of the (legislative) organ or of the (legislative) power. It appears that from what has been said already, in Ireland, it does not exist to protect the legislative organ, at any rate, when it is not exercising its legislative power.”
I respectfully agree.
156. On the second ground upon which the justiciability issue was argued, I would entirely agree with the views of the learned High Court judge and would reject at first instance any suggestion that the Court would be incapable of reviewing the political judgment or ethical standard element of s. 4, because of some intrinsic disability on its part or otherwise. Conduct which may bring a profession, organisation, grouping or entity into disrepute is an issue which falls to be determined in a variety of ways, virtually on a daily basis by the courts. If the standard, wherever it sits, can be appreciated by the reasonable man or woman, as is acknowledged, it is very difficult to see how the courts could be regarded as being so inept to that end. I therefore consider this submission as made in this regard, to be unsustainable.
157. In conclusion, for the above reasons I would reject the appeal on the justiciability issue.
PART B
The Application for Judicial Review:
Summary of Background:
158. Having determined the justiciability issue in the manner in which I have, and noting that as a result, the constitutional guarantee and safeguards, as specified inter alia, in Article 40 of the Constitution apply, it now becomes necessary to consider the substance of the judicial review application itself.
159. In this section I have continued using the same names, terms, abbreviations, definitions, etc. as used in “Part A” of this judgment.
160. In broad terms as previously stated, the applicant seeks to have the Report of the CMI and the Resolution passed by Seanad Éireann quashed on a variety of grounds. These include allegations, that: the Report contains an error of law, and was arrived at in breach of fair procedures and natural justice; that in failing to apply or apply correctly, or alternatively in misapplying the Department’s definition, the applicant’s legitimate expectation in having his “normal place of residence” determined in accordance with its terms was breached; that irrelevant matters were taken into account; and that by reason of certain conduct, both occurring within the inquiry and external to it, the findings and determinations so made were tainted by bias.
161. The High Court judge found in favour of the applicant regarding the error of law and fair procedures points but dismissed the claim based on legitimate expectation, irrelevant considerations and bias. He also found that by substituting a “political judgment” for what should have been a quasi-judicial determination, the investigation, Report and Resolution were thereby rendered ultra vires the jurisdiction conferred by ss. 8 and 9 of the 1995 Act. Although a defendant/respondent on whom a notice of appeal has been served is not required to cross-appeal, he should, in due compliance with O. 58, r. 10 of the Rules of the Superior Courts, give notice to the other party if he wishes to contend that the judgment under appeal should be varied. No such notice was given in this case. Accordingly I do not propose to consider the grounds of challenge which the High Court has rejected.
162. It should be noted, so as to avoid any degree of curiosity, that the basis of the irrelevant materials point has no bearing on any of the matters which I am about to address.
163. The context in which these issues must be considered can be stated briefly, but the following summary should be read in conjunction with the more substantive outline of the background which is explored early in this judgment. In particular, reference should be made to paras. 9 to 20 (supra).
164. Central to this aspect of the case, at least from the applicant’s point of view, is the content of the letter which he received from Members’ Services on the 2nd October, 2008. This letter was sent, because on a review of the applicant’s claim for expenses it was noticed that he had described his West Cork address as his “current principal residence”, whereas the phrase contained in the statute is one’s “normal place of residence for the time being” (s. 4 of the 1938 Act). The letter of the 2nd October, “[f]or ease of reference”, went on to detail the advice which the office had received from the Department of Finance in 1994 - which it in turn had received from the Attorney General - regarding how a member might correctly apply this formula. The applicant was asked, “… for the avoidance of doubt and for absolute certainty for future audit purposes …”, to certify that West Cork was such a residence. By return, Mr. Callely confirmed that by reference to this definition (“the Department’s definition” as per para. 13 supra), West Cork constituted his “normal place of residence for the time being”. Therefore he continued to make claims on that basis but with the variations above noted (para. 12 supra), until the events giving rise to the Committee’s investigation, occurred.
165. Those events were triggered by two complaints received by the Clerk of the Seanad on or about the 2nd June, 2010. In essence both complaints alleged that by claiming expenses on the basis of his West Cork address, the applicant, who at the time was said to be living in North Dublin, was guilty of misrepresentation and falsification in that regard. The members of the public who made the formal complaints requested that same be investigated.
166. In substance, the applicant alleges that by furnishing the Department’s definition, the respondents were informing him, by express representation, that his normal place of residence could and would be classified accordingly. This, he claims, the CMI subsequently failed to do or else misapplied its terms.
167. In addition, it is submitted that the Committee had no power to find a contravention of s. 4 of the 2001 Act, without first determining that West Cork was not his normal place of residence. This again it is said, they failed to do, and certainly did not do so by reference to the Department’s definition. Instead it appears that on quite an erroneous basis, the CMI proceeded with its investigation and reached a conclusion that, by reason of certain matters listed in the Report, the applicant was more “link[ed]” with his Dublin address than with his southern address. This did not constitute a finding as required by law, and in any event the vague, uncertain and non-specific test of “linkage”, could not form a sufficient legal basis to sustain the adverse findings so made against him.
168. The second matter noted arises out of the statement of contravention which was served on him; such statement, it is claimed, was anchored on the misrepresentation allegation. On any reasonable reading of the document, the grave nature of the charge centred on that point. It was that issue, that was notified to him: that he endeavoured to meet and that he addressed in both his prepared statement submitted to the Inquiry and and in the oral evidence given thereto. In the belief that such was to be determined by reference to the Department’s definition, he says that he focused his entire response on explaining the reasons for, and the basis upon which he made, his decision as to where his normal place of residence was, from time to time.
169. The applicant goes on to say that he was never notified of any change in the definition or on the key importance of the alleged misrepresentation, either by letter or by any amendment to the statement of contravention, or as equally significant, by any member of the Committee during the course of the investigation. As a result, given the manner of the Committee’s deliberations, its findings and Report, he was denied fair procedures and natural justice, which denial, also fatally undermines the validity of the Resolution, adopted by the Seanad.
170. The respondents, in reply, raise a number of issues which, to some at least, might seem surprising. In the first instance it is argued that the CMI was not determining whether the applicant improperly claimed expenses by means of misrepresenting his “normal place of residence”, within the meaning of s. 4(1)(c) of the 1938 Act and the associated 1998 Regulations. Rather the Committee was determining whether the submission of claims by the applicant constituted a “specified act” within the meaning of s. 4(1)(a) of the 2001 Act. Consequently, such was an assessment of due compliance with “political ethics” and on that basis also involved an evaluation of the “propriety” of the applicant’s conduct.
171. The respondents further claim that, even if the Committee was determining whether the applicant had misrepresented his “normal place of residence”, it was not obliged to rely upon the Department’s definition of 1994, even though that had been communicated to the applicant by letter of the 2nd October, 2008. In fact, and in any event, it was asserted that such interpretation of the phrase, was both erroneous and ultra vires the 1938 Act.
172. A series of formal denials followed in respect of the error of law and the fair procedures points. In conclusion, it is submitted that neither the Report nor the resultant Seanad Resolution were legally infirm.
173. Essentially, the above constitutes the live aspects of the judicial review issues, which I now propose to deal with.
Right to Fair Procedures:
174. The situation therefore was that, following complaint, the CMI established an inquiry to investigate a charge against the then Senator, Mr. Callely, who was being accused of serious wrongdoing, potentially resulting in devastating consequences for him. A person in such circumstances is entitled to invoke the State’s guarantee under the Constitution (Article 40.3.1) that, “as far as practicable”, it will by its laws protect, safeguard and vindicate his personal rights, his good name and his property rights, with resort of course being available to the courts, if necessary to that end. Likewise, such a person is entitled to expect that, in any investigation to which he is subject, the process by which it is conducted will adhere to fair procedures and uphold constitutional justice, in a manner demanded by the circumstances. In short, the entire process is subject to the overriding principles of constitutional justice and fair procedures.
175. In furtherance of these constitutional rights, Ó Dálaigh C.J. in In re Haughey [1971] I.R. 217, at p. 263 of the report, described in a very well known passage, “the minimum protection” necessary for the applicant, as he appeared before the Dáil Committee at issue, as including:
“(a) that he should be furnished with a copy of the evidence which reflected on his good name;
(b) that he should be allowed to cross-examine, by counsel, his accuser or accusers;
(c) that he should be allowed to give rebutting evidence; and
(d) that he should be permitted to address, again by counsel, the Committee in his own defence.”
These specific safeguards would of course have to vary or alter depending on circumstances.
176. A further extract from the judgment of that Chief Justice should be added: it was endorsed in the following terms by Keane C.J. in Maguire (p. 549 to 550):
“In a frequently quoted passage, the learned Chief Justice said at p. 264:-
‘Article 40, s. 3 of the Constitution is a guarantee to the citizen of basic fairness of procedures. The Constitution guarantees such fairness, and it is the duty of the court to underline that the words of Article 40, s. 3 are not political shibboleths but provide a positive protection of the citizen of his good name. [The Committee's procedures] while valid in respect of witnesses in general, in this instance, would, if applied in the circumstances of this case, violate the rights guaranteed to Mr. Haughey by the provisions of Article 40, s. 3 of the Constitution.’”
177. Quite frequently one finds that such rights are usually provided for in the constituent statute(s) which of course, in the instant case, are the 1995 and the 2001 Acts. Pursuant to s. 32(6)(b) of the 1995 Act the applicant was served with a document which according to the subsection must contain a statement of “the contravention of this Act alleged” (the “statement of contravention”). The purpose of such a document seems quite clear: it is to set out the essential ingredients of the accusation being levelled against the member concerned, so that he can readily see what he is facing. Armed with this information, he then has an opportunity of preparing whatever defence may be available to him. The section goes on to confer on the person, the right to present his case before the Committee, which includes giving evidence and calling witnesses, the testing by cross-examination of evidence against him, the making of submissions etc., and the entitlement of being legally represented, if he so wishes. Nothing turns on the rights last mentioned in this case.
178. The statement of contravention was also required by the section to identify any witness(es) whom the CMI proposed to call and to set out the nature and source of any information which the Committee had which might be useful either to the member in question or relevant to the subject matter of the investigation.
Statement of Contravention:
179. The statement of contravention as furnished in this case, contained the following, in what can be regarded as being its operative part:
“The two complaints relate to allegations that Senator Ivor Callely misrepresented his normal place of residence for the purposes 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 of, 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 in such performance by the general public and the matter is one of significant public importance.”
Meaning of s. 4 of the 2001 Act:
180. As is immediately apparent, the statement asserted that in the circumstances which it outlined, s. 4 of the 2001 Act may have been breached. That section reads:
“4.—(1) Where a person (“the complainant”) considers that—
(a) a specified person or a person who, in relation to a specified person, is a connected person may have 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,
(b) …
(c) …
the complainant may make a complaint in relation to the matter …”.
181. The term “specified act” is defined in Schedule 1 of the 2001 Act as meaning “an act or omission referred to in [s.] 4(1)(a) of the Act of 2001 and references to the doing of a specified act include references to the making of such an omission …”. In this judgment an “act or omission” and “specified act” have the same meaning and are used interchangeably.
182. Prior to the existence of s. 4, a member of the Oireachtas had certain statutory obligations in that he/she was obliged to furnish a statement of “registrable interests” to the Clerk of their House within a specified time (s. 5 of the 1995 Act), and was also obliged, in any proceedings in which he/she proposed to speak or vote on a matter in respect of which he/she had “a material interest”, to declare such interest (s. 7 of the 1995 Act). Any breach of these requirements could form the subject matter of a complaint under s. 8 of the 1995 Act, which in turn might lead to the Committee conducting an investigation in respect thereof.
183. Section 4 of the 2001 Act placed a further obligation on members, in that it prohibited conduct of a certain type, which if committed could also give rise to a complaint by any person, again under s. 8 of the 1995 Act. Upon the making of such complaint, the existing mechanism under the 1995 Act would also apply to its determination. Although the subject matter of the s. 4 prohibition is not referred to in that section as a “specified act”, such a phrase is as I have stated, to be found elsewhere, namely in Schedule 1 to that Act.
184. On any reading of s. 4 it seems to me that there must firstly exist some “act or omission” which if committed, might have one or more of the “consequences” specified in the section. In addition, the circumstances in which the act or omission takes place, may likewise be considered, even though the definition of “specified act” does not expressly include circumstances. The “consequences” of which I speak, are that the act or omission in question, may be viewed as either being inconsistent with; (i) “the proper performance” by the person in question of the position held by him or her, in this case that of Senator; and/or with (ii) the “maintenance of confidence” by the general public in such performance, and in either situation, the matter is regarded as being of significant public interest. In the interests of brevity I propose to describe these factors as constituting “the political criteria”.
185. In my view therefore there are two essential ingredients within the section, first the requirement that a “specified act” has been committed and second the application to that act, of the political criteria. Unless and until both steps have been satisfied I fail to see how a conclusion could be reached, that a breach of its provisions has occurred.
186. It is very difficult to see how the section could be construed or operate, in the absence of some “act or omission” having been committed. The application of what I have described as the political criteria, which others have termed a “political judgment” or a judgment based on “political ethics”, would otherwise have no meaning and would become quite ineffectual: evidently this type of judgment must have a subject or reference point to which it applies, as obviously the criteria cannot find an application in the abstract. In effect, it is the act or omission which feeds the test, activates its application and which ultimately may lead to a s. 4 breach.
187. This point can be looked at in another way. Let’s assume that the statement of contravention makes no mention of a preceding “act or omission”; if this were the case it must be asked to what, in such circumstances, could the ethical standard apply? What could be condemned or exonerated? Indeed how could the standard itself be set or formulated? In respect of what activity or conduct could a member’s action be found to have been flawed, inappropriate or substandard, or how and why could public confidence be said to have been undermined? In my view the existence of a “specified act” is critical to the operability of the section. It follows therefore that if the act or omission asserted against a member is not established, his/her conduct must be exonerated and a violation of the section cannot be found.
188. I do not believe that this analysis is in serious dispute: in fact this is exactly how the Committee, when framing the statement of contravention, saw the section as operating. This appears evident from the manner in which the statement is structured. It therefore becomes necessary to see what was the preceding act or omission, alleged against the applicant.
Misrepresentation at Centre of Charge:
189. The statement of contravention (para. 179 supra) opened, by making reference to the two complaints which had been received from members of the public. It then specifically stated that those complaints “relate to allegations” that the applicant “misrepresented his normal place of residence for the purposes of making claims for allowances”. The only possible interpretation in my view of this statement, giving the words their plain, ordinary and unambiguous meaning, is that the issue of “misrepresentation” is at the centre of the allegations.
190. The statement went on to say that “[t]he allegations” are such as “may” give rise to a breach of s. 4 of the 2001 Act and specified how that might occur, by pointing out that such allegations, presumably if established, may be viewed or determined as being inconsistent with the proper performance of the applicant’s function as a Senator or with the maintenance of public confidence in what is expected of such person, and in either one or both of these circumstances, may be considered a matter of significant public importance. On the basis of any interpretive approach I cannot view that part of the statement otherwise, than as making the question of misrepresentation central to the allegations. Thus the terms of the statement of contravention clearly set the assertion of misrepresentation as a prerequisite, which if established, would feed into a consideration of whether, in addition, the same could be regarded as having breached the political criteria as mentioned, and thus give rise to a contravention of the section.
191. The applicant says that he understood the accusation which he faced, that being the charge as outlined in the statement of contravention, in a manner reflective of the interpretation just given. Though not decisive in any way, as the test for determining what he should have understood the accusation to be, is an objective one, it is nonetheless of interest to see if Mr. Callely’s subsequent behaviour was consistent, with this stated position.
192. Immediately on receipt of the statement of contravention, the applicant drafted an outline of his response which was intended to form part of his evidence before the Committee. That evidence appears instructive as to his understanding of the charge levied against him; its entire tenor was directed towards explaining when, for how long and over what period, he resided in West Cork, and how, because of changing personal circumstances, he came to reside, on occasions throughout this period, in Dublin. In addition, what is immediately apparent is his particular focus on the Department’s definition, by reference to which, he sought to explain the location of where he regarded his normal place of residence to be, from time to time.
193. Of further significance is the absence of any reference whatsoever to the possibility of the Committee using a definition of “normal place of residence” other than that which the Department had supplied. Rather, in the statement, he endeavoured to set out the periods in which he resided principally in Cork or Dublin, the reasons why such varied, and the efforts made to change his chosen allowance option, although due to the rigidity of the system he was unable to do so. Therefore, working on the basis of the Department’s definition, he submitted the claims in a manner which he considered at all times to be duly compliant with the underlying scheme.
The Public Hearing Before the Committee:
194. The matters above mentioned are referred to solely for the purpose of demonstrating what the applicant’s understanding was, of the charge which he faced. These are not decisive but are indicative.
195. The structure and form of the investigation itself, does offer further insight into an understanding of what the inquiry was focused on. At the commencement of the public hearings, and after the applicant had read into the record his prepared statement, Senator O’Toole offered the first intervention and either by question or statement, addressed the applicant as follows:
“… if he would understand this, that what we are looking at here is really to recognise that there is a question of public confidence as well as the private issue. The question of where Senator Callely travelled from to the House and the private reasons for that are not the business of this [C]ommittee and we do not need to go into that in the sense of the private aspects of his life and so on.” (p. 14, Day 1 of the transcripts).
The member then set out what the Committee’s task was, namely to establish:
“first of all, whether there was a contravention and secondly whether that contravention was inadvertent, whether it was negligent, whether it was reckless or whether it was intentional. These issues are important. For us then we have to look at the public issue on this” (ibid.).
A short time later he continued (at the same page):
“Can you recognise the problem that creates in terms of public credibility for us, for the House, and that it is an untenable situation for us?”
196. The reference to inadvertence, negligence, etc. is reflective of what the Committee must include in its Report per s. 10 of the 1995 Act and nothing turns on those remarks. However what is quite notable is that, aside from a few passing reiterations of the problem which the House faced, no other effort, of any substance or import, was made by any member of the Committee or indeed by the Committee itself, to state, to clarify, or to elaborate for the applicant, the nature of the charge which he was facing and which was then under active investigation; much less to indicate that its understanding of what the charge entailed was considerably different to the manner in which it was being addressed by the member concerned. I therefore cannot read anything of significance into Senator O’Toole’s remarks.
Senator White’s Intervention:
197. In the closing stages of the inquiry another member of the Committee, Senator Alex White intervened; he stated the following:
“There is a whole myriad of factors that point to Clontarf rather than [W]est Cork, notwithstanding that the [W]est Cork house does satisfy, literally, the definition that is in the Act.
What I am putting to you is this: what do you say to the prospect that the [C]ommittee might decide or might be saying, ‘Look, yes, in terms of the letter of the law [W]est Cork satisfied the definition but for somebody in public life, for a [m]ember 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’. That is the sort of thinking, certainly, that I have at the moment and I have not come to a final conclusion on it. It is only fair that I should say that to Senator Callely so you can address that before we finish” (p. 65, Day 3 of the transcripts).
198. Notably however, the next time that the applicant was called upon to speak was to make his final statement. He did not directly address the essence of the last intervention in that statement, the resounding tenor of which was a repetition of what he had previously stated. Correctly or incorrectly he does not appear to have alluded to what might be described as possibly, a significant shift in the essence of the accusation standing against him.
199. A number of observations should be made about Senator White’s intervention. Firstly, this was a view of one member of the Committee, and not of the Committee itself. Secondly, it would of itself, have been entirely insufficient to have materially altered the core basis of what the “specified act” would be for the purposes of s. 4: here was a possible suggestion that even though the applicant’s conduct could technically be within the Department’s definition, nonetheless, the Committee might find a breach of the section. Thirdly, the suggestion, if adopted, would have involved an accusation based on circumstances entirely different to those which formed the basis of the statement of contravention, which still stood in its original terms. Fourthly, and at a minimum, such a highly important change would have to be brought to the attention of the applicant in some very clear and definite way and certainly in a manner which conveyed its significance to him: that intervention could not be said to have achieved this purpose. Fifthly, if that approach was to be pursued, the correct procedure would have been either to abort or at least to adjourn the inquiry and to have served an amended statement of contravention on the applicant. Even however if those steps could have been avoided, the applicant, at a minimum would have to have been afforded an opportunity to consider the variation and to address its substance at some further hearing. Finally, and in any case, the possibility raised by Senator White, was suggested far too late in the process.
200. For these reasons I do not believe that this intervention could be considered an adequate forewarning to the applicant, that a contravention finding may be possible, even if his conduct was duly compliant with the Department’s definition. In any event, the Committee, in its findings and determinations did not make such a finding nor did it make any reference to this possibility. Consequently, and in the circumstances, this intervention cannot be regarded as being in any way decisive.
The Findings:
201. The Committee went on to make the findings as contained in its Report. In para. 1 it determined that the applicant “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”. It went on to say that such action was inconsistent with the proper performance of his role as a Senator, was likewise inconsistent with the maintenance of public confidence in that role and that the matter was one of significant public importance. In answering the questions as required of it by s. 10 of the 1995 Act, the Committee continued by finding that the “specified act” was continuing, was done intentionally, was of a grave and serious nature, and that in so doing, the Senator had not acted in good faith. The determination then stated that the findings which I have referred to were arrived at having considered all of the evidence and having come to the view that, “on balance”, the weight of the facts as listed, “link[ed]” the applicant to his Dublin rather than his Cork address.
202. Of interest is the observation of the Committee recorded on p. 9 of its determinations where it said:
“The Committee believes that the expenses regulations would benefit from a clearer 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.”
203. The Committee in its opposition papers sought to further explain some of its findings and to outline the activity which it says, it was truly engaged in. Its position on these matters is set out in paras. 26, 170 and 171 above and therefore requires only the briefest of mention here. In essence it said that it determined that the applicant committed a “specified act” but did not determine that he had misrepresented his normal place of residence for the purpose of expense claims. It further said that it was not obliged to apply the Department’s definition which was ultra vires the 1938 Act. Quite strikingly however, it did not go on to say what impact this submission might have, on the fair procedures point.
The Misrepresentation at the Centre of the Finding:
204. The first aspect of this submission, though technically couched in language which reproduces that which is contained in s. 4 of the 2001 Act, seems to make a distinction, without effect, on the misrepresentation issue. As outlined previously, an essential feature of a s. 4 breach is that the member concerned is found to have committed an “act or omission”, namely a “specified act”. Such a finding in my view is an essential component required by the section. In this case, the “specified act”, by express declaration in the statement of contravention, was stated to have been the applicant’s misrepresentation as to his address for the purposes of the expenses claims. Therefore, the Committee had to consider and make a finding on that issue. If it failed to do so or if its overall conclusion was somehow reached on political or ethical grounds only, I would entirely agree with the learned trial judge that in so doing, it would have acted ultra vires its powers (p. 719 of the High Court judgment). I doubt very much however if that is what the Committee actually did or even intended to convey in its submission.
205. In para. 1 of its findings (para. 201 supra) the Committee states that the Senator, Mr. Callely, had done a “specified act” by “misrepresenting his normal place of residence…”. This, at least to me, seems definitive on the point and in fact, is also entirely consistent with what the section demands. Neither in the evidence nor in the submissions can I find what otherwise, the respondents say, was the act or omission which they found the applicant to have committed. It is entirely confusing to equate the doing of a “specified act” with a breach of the section. It is not: it is simply the commission of the “act or omission” alleged (paras. 183 and 184 supra). In any event, I do not understand how it could be said that, as part of an inquiry into a s. 4 breach, the Committee was not making a finding on this matter. I therefore reject their submission in this regard.
Definition of “Normal Place of Residence”:
206. The second aspect of this submission which is twofold in nature is that the Department’s definition is not only erroneous as a matter of law but is in fact ultra vires s. 4 of the 1938 Act and as a result the Committee was justified in disregarding and/or disapplying its terms. I find this, as a purported answer to the fair procedures point, to be wholly unconvincing and quite extraneous, it therefore has no impact or influence on my conclusion on that issue. There are several reasons for this.
207. In the very context of a concern regarding Mr. Callely’s compliance with s. 4 of the 1938 Act and the 1998 Regulations, the Members’ Services section of Seanad Éireann drew his attention to what the correct basis for claiming expenses was and issued the 2nd October, 2008 letter so that, by reference to its terms, due compliance with the statutory requirements could be achieved. At no stage thereafter, until the statement of opposition was filed, was it ever suggested to the applicant that he had been misled by Seanad Éireann in that regard and that, as the Department’s definition was erroneous, he would be breaking the law in following it.
208. At pp. 718 to 720, in particular paras. 93 and 96 of his judgment, the learned High Court judge recalled the unequivocal and unchallenged evidence, given by Mr. Dignam to the Committee, to the effect that for the purposes of allowances the working definition was that issued by the Department, which still applied in 2008 (the Department’s definition). He also confirmed that such was communicated to the applicant and applied by him. Despite an extensive search I cannot find any suggestion made by any member of the Committee during the course of the investigation which could cast doubt on the applicability of this definition, much less that such should be entirely disregarded. In fact, Senator White’s intervention was clearly premised on the continuing use of that definition (para. 197 supra).
209. Furthermore, there is no indication in its findings and determinations that the Committee ever informed Mr. Callely of its intention to disapply this definition and to use an alternative in its place. Even though the reference to “linkage”, which appears to have been applied in finding that the Senator had committed a misrepresentation, is highly dubious, nonetheless, I cannot find any statement, clear or otherwise, from which it could be inferred that the Department’s definition was being stood down and that some unidentified, unexplained, novel and as yet unannounced substitute, was being applied.
210. In fact one wonders how the Committee could ever have arrived at any alternative definition without high level consultation with many interested parties and without seeking and obtaining legal advice. More so, if by such extraordinary circumstance it had, it is difficult to see why, in its Report, it called for the creation of a clearer and more robust definition. In these circumstances it is very difficult to give credence to the submission that, the Committee deliberately disregarded the Department’s definition, because of some concern about its vires. If such was done, it is scarcely credible that in its Report it would not have referred to it.
Ultra Vires Point:
211. In any event, I do not think that whether the Department’s definition is or is not technically within s. 4 of the 1938 Act is relevant to this issue. At all times and in all material circumstances, the charge was framed to allege misrepresentation in the manner indicated, which, given the letter of the 2nd October, 2008, and the evidence of Mr. Dignam, was always intended to have been determined by reference to that definition. As on no occasion was the contrary ever stated or implied, it would be a gross affront to fair procedures to permit the respondents to resile from their obvious position, and to answer this allegation by relying on the ultra vires assertion. To do so would at least require the Committee to have forewarned Mr. Callely of its intention and to have done so in a time and in a manner which would have afforded him an opportunity of responding. That did not occur. Therefore, as the applicant was led to believe that a central issue in this investigation would be determined on the Department’s definition, and since it is now accepted that his actions fell within such definition, I do not believe that the findings and determinations of the Committee can be allowed to stand, as to do so, would be contrary to natural justice and fair procedures.
212. The conclusion which I have reached can be summarised as follows:
(i) Section 4 of the 2001 Act requires a finding that a “specified act” has been committed. That act, as alleged, is to be found in the statement of contravention, which describes it as involving a misrepresentation by the applicant of his normal place of residence. The only yardstick ever suggested by which that issue could be determined, was the Department’s definition.
(ii) If the Committee did in fact apply that definition, their conclusion on a s. 4 breach cannot stand, in light of the belated concession that the expense claims were within that definition. As such, the evidence could not have properly established that a “specified act” had been committed.
(iii) If the Committee applied some test in substitution for the Department’s definition, it was obliged to inform the applicant of its intention to do so and to afford him a timely opportunity to respond: this it did not do.
(iv) If the Committee failed to make any determination on the misrepresentation allegation, it follows that an essential requirement of the section, namely, the doing of a “specified act”, was never established.
(v) Whichever of these may be correct, the finding that s. 4 of the 2001 Act was breached, cannot be justified.
(vi) The suggestion that the Department’s definition is ultra vires s. 4 of the 1938 Act cannot effect this conclusion, particularly in light of the “political criteria” element of the section.
213. In arriving at this conclusion, I am far from saying that it could not have been asserted against the Senator that, even if compliant with the Department’s definition, his behaviour otherwise was such as could amount to a s. 4 breach. Whether such an assertion could have been sustained is not the point.
214. It is undoubtedly the case that the Committee had ultimate control over what activity it would specify as constituting the “specified act”, provided of course that the essence of the public complaints were included. That left open the possibility of accepting that the expense claims as made, fell within the Department’s definition, but that nevertheless the behaviour of the member concerned and the circumstances of its occurrence, were such as could amount to a “specified act” and could thereby give rise to a s. 4 breach. A further possible alternative which could have been adopted is that, irrespective of whether the expense claims were or were not within that definition, the conduct of the applicant likewise fell to be considered. However, neither of these possibilities grounded the allegation against Mr. Callely. A decision was made to centre the misrepresentation allegation at the heart of the charge levelled against him. Having made that decision, the respondents must abide by its consequences.
215. In these circumstances, I am satisfied that the learned High Court judge was correct to uphold the applicant’s claim in respect of fair procedures and natural justice.
216. By reason of this conclusion it is unnecessary in my view to determine what has been described as the error of law point, which is, whether or not the Department’s definition fell within s. 4 of the 1938 Act. If necessary such must await another day.
