Callely v Moylan and Others

JudgeMr. Justice Murray,Mr. Justice Fennelly,Mr. Justice Hardiman,Mr. Justice O'Donnell and Mr Justice Clarke,Mr. Justice M. McKechnie,
Judgment Date09 April 2014
Neutral Citation[2014] IESC 26
CourtSupreme Court
Docket Number[S.C. No. 69 of 2011]
Date09 April 2014
Callely v Moylan & Ors
Ivor Callely


Pat Moylan, Dan Boyle, Frances Fitzgerald, Camillus Glynn, Denis O'Donovan, Joe O'Toole, and Alex White (Members of the Select Committee on Members' Interests of Seanad Éireann), Committee on Members' Interests of Seanad Éireann and Seanad Éireann


PAT MOYLAN, DAN BOYLE, FRANCES FITZGERALD, CAMILLUS GLYNN, DENIS O'DONOVAN, JOE O'TOOLE and ALEX WHITE (Members of the Select Committee on Members' Interests of Seanad Éireann) and Committee on Members' Interests of Seanad Éireann

[2014] IESC 26

Denham C.J.

Murray J.

Fennelly J.

Hardiman J.

O'Donnell J.

McKechnie J.

Clarke J.

[Appeal No: 069/2011]
[S.C. No. 069/2011]


Appeal - Expenses - Alleged impropriety - Suspension -"Normal place of residence" - Separation of powers - Justiciability - Entitlement of courts to review disciplinary decisions of House - Constitutional right to natural justice - Fair procedures - s.4(1)(c) Oireachtas (Allowances to Members) Act 1938 - Ethics in Public Office Act 1995 - Standards in Public Office Act 2001

Facts: This appeal concerns a public controversy whereby allegations of impropriety were made against Senator Callely involving the payment of expenses. A hearing was conducted by the Committee on Members' Interests of Seanad Éireann concluding Senator Callely had misrepresented his normal place of residence for the purposes of claiming expenses. The committee found such activities to be inconsistent with the proper performance of his function as Senator and the maintenance of public confidence in his Office. A resolution was passed by the House that Senator Callely be suspended for 20 days with no salary. Senator Callely received an order of Certiorari quashing said resolution and other consequential relief.

The Commission and Seanad Éireann appeal against the order of Certiorari. Two main issues are central to the appeal: Firstly, the extent to which it is permissible for the courts, in exercise of the judicial power under the Constitution, to review a resolution of a House of the Oireachtas or a committee thereof. It is argued on behalf of the Committee and Seanad Éireann that such issues are non-justiciable. Secondly, on the assumption that the relevant issues are justiciable, there is a dispute as to whether, on the facts and the law, there had been an error of law or a breach of Senator Callely's entitlement to a fair process.

Held: The judge considered several cases relating to the question of justiciability of proceedings – concluding that the separation of powers, at least in principle, means that internal disciplinary proceedings of the Oireachtas, which are properly within the scope of the legislative power, are non-justiciable. The judge decided that the Committee was correct in rejecting as erroneous the 1994 interpretation and was entitled to conclude that Senator Callely had indeed misrepresented his normal place of residence and thereby committed a specified act which was inconsistent with the maintenance of public confidence in the performance by him of his Office. Furthermore, the judge decided there was not any unfairness in the hearings or any error of law in the Committee"s conclusions.

Appeal allowed


JUDGMENT of Mr. Justice Murray delivered the 9th day of April 2014.


JUDGMENT of Mr. Justice Fennelly delivered the 9th day of April 2014.


JUDGMENT of Mr. Justice Hardiman delivered on the 9th day of April, 2014.


Joint Judgment of Mr. Justice O'Donnell and Mr Justice Clarke delivered the 9th day of April, 2014.


Judgment of Mr. Justice M. McKechnie, delivered on the 9th day of April, 2014.


Judgments delivered by Murray J, Fennelly J, Hardiman J [Murray J diss.], O'Donnell J & Clarke J [Denham CJ & Fennelly J concur.], & McKechnie J [Murray J & Hardiman J diss.]


1. I have concluded, as three other members of the Court have also concluded, that the first ground of appeal of the appellants should fail, namely, their contention that the courts have no power or jurisdiction to review the legality or constitutionality of the procedures followed by the appellants and their decision which led to the disciplinary action against the respondent. First of all, with regards to that particular issue, there are a number of concurring observations which I wish to make.


2. "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." (Byrne v. Ireland [1972] I.R. 281, Walsh J.)


3. Each House of the Oireachtas, like other organs of State such as the executive and judicial branches of government, derive their powers from the people pursuant to the provisions of the Constitution.


4. These powers must be exercised in accordance with the Constitution Hence, a State founded on the rule of law.


5. "An independent judiciary guarantees that the organs of State conduct themselves in accordance with the rule of law." (Judgment of the Court in Curtin v. Dail Eireann [2006] 2 I.R. 556 at 617).


6. In this appeal the first and primary argument made by the appellants puts in issue the fundamentals of the foregoing constitutional tenets. The above named appellants argue on this first issue that when a committee of the Oireachtas, in this case a Seanad Committee, exercises a disciplinary power to make findings of wrongdoing involving a consequential suspension or fine of a member of the Oireachtas it is a power to be exclusively exercised by them according as they consider appropriate without any answerability or review by the courts concerning the lawfulness or constitutionality of the process or decisions concerned. It is, it was claimed, for the Committee of the Oireachtas itself to judge its own conformity with the law and the Constitution.


7. In broad terms the contention of the respondents is that it does not matter if the committee acted in breach of the Constitution, it does not matter in this case if it denied and breached the guarantees contained in the Constitution governing fair procedures, it does not matter if the committee acted in breach of the powers conferred on it by the Ethics in Public Office Act, 1995. This is so because the separation of powers, as envisaged by the Constitution, and the privileges conferred on the Oireachtas by the Constitution mean that the judicial branch of government, referred to in Article 6 of the Constitution, the judiciary, have no jurisdiction to hear proceedings designed to enforce the law or ensure observance of the Constitution by this committee.


8. The respondents in the appeal contends that the determination or report of the Committee should be set aside on grounds, inter alia, that the investigation and determination arrived at by the Committee in the exercise of its statutory functions were in breach of fair procedures as guaranteed by the Constitution.


9. Based on an argument along the lines indicated, the appellants contend that the courts have no business and no jurisdiction to entertain any complaint from the respondent concerning a breach of his constitutional rights. Even if that occurred the courts are not entitled to entertain or examine his application.


10. The consequence of such an argument succeeding is that an individual member of the Dail or the Seanad could be the subject of a disciplinary procedure depriving him or her of the right to vote for a specified period, or other consequences, without recourse to review by independent courts to protect or vindicate constitutional rights. It may also be a consequence that the electors whom that particular member represented would be deprived of representation, perhaps even during a crucially important vote in the House of which the representative concerned was a member.


11. Ensuring observance of the law and the Constitution when State powers are exercised are important guarantees not only to institutional rights but to individual rights which is one of the reasons why this Court has emphasised, as in for example Curtin v. Dail Eireann cited above, that an independent judiciary with power of judicial review guarantees that those who exercise constitutional or legislative powers "conduct themselves in accordance with the rule of law".


12. Furthermore, the reality that parliamentary committees can be "distracted by politics" as it has been put, ought not to be ignored when considering the systemic importance of judicial review since this was a factor which was explicitly taken into account in the decision of this Court in the Maguire v. Ardagh case. See, for example, the judgments of Geoghegan J. and McGuinness J. in that case. Geoghegan J. said the risk of bias "gave every reason for rejecting the alleged inherent power to conduct enquiries of the nature" in that case.


13. In any event, the very essence of the separation of powers requires that an independent judiciary adjudicate on disputes arising from the exercise of powers which affect the rights of an individual. As Walsh J. stated in Byrne v. Ireland:

"It is as much the duty of the State to render justice against itself in favour of citizens as it is to administer the same between private individuals. The investigation and the adjudication of such claims by their nature belong to the judicial power of government in the State, designated in Article 6 of the Constitution of Ireland ..."


Certainly, each House of the Oireachtas must be free to exercise fully the powers conferred upon it by the Constitution without interference from any...

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