Senate wins appeal over Callely expenses

A Seanad committee has won an appeal against a High Court ruling which had found in favour of former senator Ivor Callely over his expenses.

A seven-judge Supreme Court, in a 4-3 decision, ruled the Seanad Committee on Members’ Interests was entitled to conclude that in 2008 Mr Callely had misrepresented his normal place of residence as being in Kilcrohane House, Bantry, Co Cork, rather than Clontarf in Dublin, when claiming expenses.

The appeal arose out of a January 2011 High Court finding that there had been a breach of fair procedures when the Seanad Committee decided, in July 2010, that he had deliberately misrepresented his place of residence.

Yesterday, the Supreme Court allowed the committee’s appeal.

Mr Callely said afterwards that while he was disappointed with the decision, he accepted it and thanked the court and his legal team.

He had strongly rejected the charge of misrepresentation and said he had complied with the Department of Finance definition of place of residence.

In the Supreme Court’s majority judgment overturning the High Court decision, Mr Justice Donal O’Donnell and Mr Justice Frank Clarke ruled the committee was correct.

A 1938 law on allowances for members of the Oireachtas provided that expenses shall be paid for travel to Dublin from their normal place of residence “for the time being”, the judges said. Mr Callely had argued he relied on a 1994 Department of Finance definition of this as being a place that is “not ad hoc” and not “mere shelter” in a hotel for a few nights, such as while attending a conference.

While his house in Co Cork was not such mere shelter, Judges O’Donnell and Clarke said the committee assessed all the available information which clearly showed Mr Callely had a closer connection to his residence in Clontarf.

While it was true the committee did not frankly acknowledge Mr Callely was compliant with the Department of Finance interpretation, whether it was because of a desire to avoid public attention of the Oireachtas expenses regime or otherwise, the question the court had to consider was one of law. In their view, the judges said, the committee was correct in rejecting the 1994 interpretation and entitled to conclude he had misrepresented his normal place of residence.

The judges also said they did not consider there was any unfairness in the procedures adopted by the committee at its hearings.

They noted Mr Callely did not complain at the time and was “obviously comfortable” with the procedures.

The majority judges also concluded the Constitution did not contemplate that decisions of the Oireachtas relating to disciplining of their own members would be subject to judicial review. These decisions were non-justiciable in accordance with Article 15.10 of the Constitution relating to separation of powers between organs of the State, they said.

This does not mean the proceedings of the Oireachtas are immune from scrutiny or that its members lose their constitutional rights, they said. It is the function of the courts to determine the proper boundaries of the exercise of legislative power in each case which requires that such matters be non-justiciable, they said.

In his concurring judgment, Mr Justice Fennelly said that by using the Department of Finance’s “technical definition” of place of residence, Mr Callely was claiming travel and overnight expenses which he was not in fact incurring.

This was the reason he was found to be in breach of standards in public office legislation, he said.

Chief Justice Susan Denham agreed with the majority judgment.