The Supreme Court allowed an appeal by members of the Seanad’s Committee on Members’ Interests and other respondents, set aside the High Court order and dismissed Ivor Callely’s application for judicial review, according to a separate judgment delivered by Justice Fennelly on 9 April 2014.
Justice Fennelly agreed with the joint judgment of Justices O’Donnell and Clarke that, in principle, decisions made in internal disciplinary proceedings by either House of the Oireachtas are non-justiciable, and proceedings under its rules or standing orders cannot be challenged by judicial review. He said each House has, in the first instance, exclusive jurisdiction to consider alleged breaches of its rules and standing orders, while remaining bound to respect constitutional rights and the principles of natural and constitutional justice.
He added that courts would have to intervene if a House generally, or in a particular case, showed “clear disregard” for constitutional rights. He described that proposed standard as tentative.
Justice Fennelly disagreed with the joint judgment on the “narrow basis” of challenge. In his view, non-justiciability applied only where the House had made the decision while enforcing its own rules or standing orders adopted under Article 15.10 of the Constitution. He said the Seanad had established the Select Committee under Standing Order 90, but had not adopted a standing order making the relevant subject matter a disciplinary rule. The investigation and reporting process, including complaints about a “specified act”, was set out in legislation.
On that basis, he considered the committee’s decision was not immune from judicial review and that Mr Callely was entitled to the normal remedy. But he agreed with the joint judgment that fair procedures had in fact been followed.
Justice Fennelly described the complaint as alleging that Mr Callely misrepresented his normal place of residence and, by using the Department of Finance’s technical definition, claimed travel and overnight expenses he was not incurring. He said this was the “specified act” found to have been committed contrary to section 4 of the Standards in Public Office Act 2001.
The judgment is Justice Fennelly’s separate opinion within the Supreme Court appeal. Its operative order was to allow the appeal, set aside the High Court order and dismiss the judicial review application.