Callely v Moylan and others, [2014] IESC 26 (2014)

Docket Number:69/11
Judge:Hardiman J.
 
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THE SUPREME COURTDenham C.J. 069/2011

Murray J.

Hardiman J.

Fennelly J.

O’Donnell J.

McKechnie J.

Clarke J.

Between:

IVOR CALLELY

Applicant/Respondent

and

PAT MOYLAN, DAN BOYLE, FRANCES FITZGERALD, CAMILLUS GLYNN, DENIS O’DONOVAN, JOE O’TOOLE and ALEX WHITE

(Members of the Select Committee on Members’ Interests of Seanad Éireann) and Committee on Members’ Interests of Seanad Éireann,

Respondents/Appellants

JUDGMENT of Mr. Justice Hardiman delivered on the 9

th

day of April, 2014.

This is the appellants appeal against the order of the High Court on foot of the judgment of that Court (O’Neill J.) delivered 14 January 2011. I shall call the appellants compendiously “the Committee”.

By that order, the applicant (now the respondent) succeeded in quashing on certiorari the Committees report of the result of an investigation into complaints concerning the applicant (“Senator Callely or Mr. Callely”) dated 14 July 2010, and certain consequential decisions.

There is no doubt that the above mentioned finding of the Committee had the potential to be grossly damaging to Mr. Callely in terms of his good name and reputation, and of his livelihood. He provided ample evidence that such damage in fact occurred and this does not appear to be disputed. Some of the evidence in this regard is rather lurid and I do not consider it necessary to rehearse it in this judgment, since it appears not to be in dispute that the procedures adopted by the Committee, and its findings, are capable of affecting the applicant’s constitutional rights and have in fact done so.

Overview.

The factual and legal issues in this case can be stated quite briefly. However, once this is done, it will be necessary to rehearse fully the facts and the law relating to the case in a much more detailed fashion. It is hoped that this overview will make that material more digestible.

It must be said at once that the case raises an issue of great constitutional importance, which is whether a Committee of Seanad Eireann, established to carry out an inquiry pursuant to the Ethics in Public Office Act 1995 is, as the Committee claim, absolutely immune from the scrutiny of the Courts even where a gross departure from the universal norms of natural justice and fair procedures is alleged.

The respondent, Mr. Ivor Callely, is a man now at the nadir of his fortunes. He has been a member of the Oireachtas for more than two decades but is now entirely out of public life. It is clear from the evidence in this case that his reputation, standing, and good name are destroyed. It is not for the Court to determine if this is due solely to the matters he complains of in his case against the Committee.

Mr. Callely, I would have thought, is as much entitled to justice in the case which he has is brought against the Committee as any other citizen, whether such citizen is the holder of high public office or not and whether his reputation is good or bad. Indeed, I would have though this axiomatic. But the appellants in this case, the Committee, absolutely deny that Mr. Callely is entitled to challenge their decision in the Courts at all, no matter how great the injustice he alleges. They admit, however, that any other citizen who was not, at the relevant time, a member of the Seanad could have recourse to the Courts in the same circumstances.

Ivor Callely was found by the Committee to have misrepresented his normal place of residence for the purpose of claiming allowances. He was found to have done this intentionally and not to have acted in good faith in doing so. Mr. Callely strongly rejected the charge that he had misrepresented his normal place of residence for the purpose of claiming allowances, or for any purpose.

He relied strongly on the fact that, on 2 October 2008, the Members Service Office of the Oireachtas asked him to “certify in writing” that a house in Kilcrohane, Bantry, County Cork, was his “normal place of residence for the time being”. At that time, in the same letter, the said office drew his attention to the Department of Finance definition of the phrase just quoted.

Mr. Callely adopted the definition which the Oireachtas Office had put before him and has at all times claimed that he complied with it.

The Committee made no finding at all in its “Findings and Determinations” as to whether or not that definition was, or was not, the applicable one. It made no finding as to whether or not the Department of Finance had correctly construed the phrase “normal place of residence…”. It made no finding, either, that Kilcrohane was not Mr. Callely’s normal place of residence.

Concessions.

But the Committee, in its “grounds of opposition” in the present proceedings, made the following concession:

“For the avoidance of doubt, the [Committee] acknowledges that the applicant’s claim for expenses came within the scope of the interpretation given by the Department of Finance”.

This concession was in substance repeated at para. 4.2 of the Committee’s written submissions:

“The [Committee’s Members] acknowledge that, having regard to [Mr. Callely’s] evidence as to his use of his house in Kilcrohane, that house constituted a normal place of residence within the meaning of the Department of Finance ‘definition’.”

These concessions were entirely novel: they were not made during the hearing of the complaints against Mr. Callely. They appear on the face of it inconsistent with an upholding of the complaint that Mr. Callely had misrepresented his normal place of residence.

Mr. Callely complains, in effect, that the Committee simply and very artfully moved the goalposts in order to make a finding against him. Having regard to the concession, he claims, he could not have been found guilty of the charge which was notified to him; and he could not have been found guilty of the allegedly quite different charge which the Committee claim now to have had in mind in finding against him, without being notified of it and heard in his own defence to that allegedly different allegation.

The detail of the allegations, and findings, against Mr. Callely is fully explored below, at paras 17 to 42. This exercise demonstrates that they, and the procedures adopted to deal with them, are within the category of allegations and procedures in respect of which Judicial Review is normally available.

But the substance of this judgment relates solely to the Committee’s first point of defence against Mr. Callely’s challenge, which arises at the outset or ‘in limine’: the Committee say that the Court has no jurisdiction to entertain any complaint by Mr. Callely of his treatment at the hands of the Committee, however serious, because he was at the relevant time a member of the Seanad. They quite concede that any person who was not a member of the Seanad could complain of being treated in disregard of the principles of constitutional justice, and could take this complaint to the Courts established under the Constitution: but they claim that, by reason of Article 15.10 of the Constitution, a member of the Seanad is precluded from doing this. That is the only issue which this judgment addresses.

Background.

Mr. Callely was, for a period exceeding twenty years, a member at different times of Dáil Éireann or of Seanad Éireann. In this latter capacity, from the time of his appointment to Seanad Éireann on the 3rd August 2007, he was entitled to travelling expenses. This entitlement arose by reason of s.4(1)(c) of the Oireachtas (Allowances to Members) Act 1938. Members of the Seanad are entitled to recover expenses incurred in travelling to attend sittings of Seanad Éireann, from their “normal place of residence”. The dispute underlying these proceedings turns on what this phrase means.

Pursuant to the Oireachtas (Allowances to Members) (Travelling facilities and overnight allowances) Regulations 1998, a member of the Houses of the Oireachtas whose normal place of residence was more than fifteen miles from Leinster House had an option of choosing to claim expenses in attending Leinster House either through a daily allowance or on the basis of a travel allowance based on mileage and an overnight allowance. These Regulations were replaced, on the 2nd March 2010, by the Oireachtas (Allowances and Facilities) Regulations 2010. But it is the 1998 Regulations that are relevant in the present case.

Mr. Callely first submitted a claim for Seanad Eireann overnight and travel expenses in December 2007. He explained that:

“My personal situation has changed since June, 2007, and, while I retain my Dublin home and my constituency office, my current principal residence is Kilcrohane, Bantry, Co. Cork, as per my letter of appointment to Seanad Éireann, as attached…”.

The respondent attached a letter he had received from the Department of the Taoiseach dated 3 August 2007 informing him of his appointment to Seanad Éireann. This letter was addressed to the respondent at his residence in Kilcrohane.

The respondent claimed travel allowance on that basis during 2008, and portions of 2009. He returned certain expenses paid to him in 2010 on the basis that, during certain periods in that year, he had been spending most of his time in Dublin.

A query to Mr. Callely.

By a letter of 2 October 2008, the Members Services Office, the office of the Oireachtas that deals with allowances for Members, made a very specific inquiry of the respondent. The Office asked him “for the avoidance of doubt and for absolute certainty for factual and audit purposes” to “certify in writing, that this house in Bantry was your ‘normal place of residence for the time being’ for the period of the claim”. (Emphasis supplied)

The office pointed out that:

“This [i.e. the phrase ‘normal place of residence for the time being’] is the statutory provision used in s.4(1)(c) of the Oireachtas (Allowances to Members) Act 1938, for the payment of such expenses.”

Very importantly, the letter continued:

“For ease of reference, the term ‘normal place of residence’ has...

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