Callelly judgment: High Court finds constitutional justice infringed by Seanad inquiry

Unsurprisingly, administrative law rarely appears on the ‘Human Rights in Ireland’ page.  Yet there is a proud and robust tradition in Irish administrative law of procedural fairness  imposed outside the criminal law context,  particularly in the context of the Tribunals of Inquiry (this, indeed, with its attendant rights to legal representation, being but one of the reasons for their impressive and controversial cost). Given the lofty philosophical pedigree of natural justice (aka procedural fairness) in the common law tradition – and its elevation to the bolstered status of “constitutional justice” within Article 40.3 of the Bunreacht – it seems appropriate to note here the judgment of the High Court today in Callelly v Moylan. The judicial review taken by Senator Callelly against the findings of a Seanad Committee Inquiry into allegations surrounding his now-notorious expenses claim for a West Cork home represents an interesting development in the law of procedural fairness as it applies to public inquiries.

The right to constitutional justice, the Irish reincarnation of natural justice, is recognised as one of the unenumerated rights embraced by Article 40.3 of the Constitution. It has been established since Re Haughey[1971] I.R. 217, the classical statement of constitutional justice, that any public inquiry impugning a citizen’s right to a good name is amenable to judicial review, and therefore attracts the rule against bias as well as the audi alteram partem (‘fair hearing’) rule. In that case, which saw the Dail Public Accounts Committee conduct an inquiry into events surrounding the alleged channelling of ‘relief funds’ for use by the IRA during the Northern Troubles, it was established that Padraig Haughey was constitutionally entitled to address the inquiry in his defence, to be furnished with a copy of the evidence impugning his good name, and to cross-examine, through counsel, his accusers. It is essentially this line of authority that has grounded a series of judicial review cases involving the Tribunals of Inquiry, whose activities, from the point of view of constitutional justice, are effectively equivalent to inquiries conducted by Oireachtas committees.

However, since Maguire v Ardagh, it has also been established that the Oireachtas committees enjoyed no roving jurisdiction to conduct inquiries into alleged wrongdoing by members of the public – in that case, the events surrounding the Abbeylara siege – this not being embraced by the scope of the legislative function envisaged by the Constitution. Essentially, their power of inquiry is limited to the activities of their own members, in view of the jurisdiction conferred upon the Oireachtas, by Article 15.10 of the Constitution, to regulate its own procedures by way of standing orders. The initial issue in today’s Callelly judgment was whether such an ‘internal’ inquiry by the Oireachtas is subject to challenge by way of judicial review, or alternatively, as was claimed by the Seanad committee in this case, was in fact placed beyond the scope of judicial intervention by the constitutional separation of powers.

Despite an era of increased judicial deference to the legislature, it appears that what David Gwynn Morgan coined the “judicial-o-centric separation of powers” is alive and well in some respects. Along with the recent Doherty case, which concerned the failure of the Government to allow for the moving of the writ for a Donegal by-election, this re-asserts decisively the jurisdiction of the Courts to intervene in what are sometimes otherwise conceived as essentially “political” matters conferred exclusively on the jurisdiction of the “political” organs within the constitutional order. While today’s judgment rested partly on the narrow, technical finding that the Seanad inquiry did not, in fact, come within the remit of Article 15.10 – and therefore was not put beyond intervention by way of judicial review – it also implicitly re-asserted that the basic test for allowing judicial review of “political” matters is whether the action or inaction of the political organs of State touches upon citizens’ constitutional rights. This was the test used in the Doherty decision in the context of the constitutional right of equality in political representation, while the Callelly inquiry is reviewable notwithstanding the Separation of Powers because it touched upon the Senator’s constitutional right to protection of his good name. To find otherwise, O’Neill J asserted, would also have been to construct the Separation of Powers in such a manner as to deny Callelly the right of access to the Courts as well as his right to fair procedures. Thus, given the inquiry’s  far-reaching impact on Callelly’s reputation, the case is clearly distinguishable from O’Malley v. An Ceann Comhairle [1997] 1 I.R. 427, which held that the Ceann Comhairle’s refusal to allow a deputy’s question fell outside the jurisdiction of the Courts, such purely ‘internal’ matters falling within the exclusive jurisdiction of the Oireachtas itself through its standing orders. Moreover, the High Court followed the broad tenor of the Doherty judgment in asserting:

“As this investigation had be conducted in accordance with the requirements of natural justice and fair procedures and as the subject matter of the enquiry was no different in kind to the types of cases that habitually come before the courts, it simply cannot be said that the complaints made by the applicant in these proceedings are not cognisable by the courts on the basis that there no recognised standards or measurements by reference to which the issues raised can be judged. These issues can readily be adjudicated on by this Court, by reference to the ordinary laws of the land which applies to all persons including the Members of the Oireachtas and in this case the respondents. The standards of natural justice and fair procedure prescribed by the law to which all citizens are entitled, cannot be displaced by a “political judgement” simply because the person affected, in this case the applicant, is a member of the Oireachtas. Members of the Oireachtas like all human persons in this jurisdiction enjoy the full protection of the Constitution.” [para 85]

As for the substantive grounds relating to procedural fairness – which occupy a minority of the text of the judgment – the Court rejected the respondent’s claim that it was not making a determination of whether Callelly misrepresented his place of residence, but rather one relating to “political ethics” within the terms of the Standards in Public Office Act 2001. More specifically, “[since] the Department of Finance definition was the operative definition notified to and adhered to by the applicant, it necessarily follows that the claims for expenses made by the applicant on the basis of Kilcrohane being his normal place of residence were made lawfully.” [93]

Thus, in a rather unflattering evaluation of the committee’s procedural method, O’Neill J concluded that the finding was ultra vires given the failure to properly establish a misrepresentation of the senator’s place of representation:

“The attempt by the respondents to skip that essential ingredient in the process, namely, proving or establishing that the applicant had misrepresented his normal place of residence, in order to leap to a condemnatory conclusion, amounts to a failure on the part of the respondents to properly discharge their adjudicative function. In substituting a political judgement as described in the affidavit of the 1st respondent, for what should have been a quasi judicial determination, they stepped outside the jurisdiction conferred on them by ss 8 and 9 of the Act of 2005 and in my opinion, the investigation and determination and indeed the dependant resolution of Seanad Éireann were thereby rendered ultra vires.” [94]

He also noted that the respondent could not, having accepted the Department of Finance definition of “normal place of residence”, then revise this standard in subsequent proceedings. This breached Callelly’s legitimate expectation to have this standard applied. It was essentially beyond the vires of the committee to determine a vague standard of “political ethics” where it had not shown a breach of the legally effective standard of “normal place of residence.” This “would manifestly be in breach of natural justice” [100].
Finally, the proceedings were not, however, tainted under the heading of bias by virtue of various pronouncements by members of the committee seeking to dispense with the Department of Finance definition of “normal place of residence”, as well as public statements by certain senators which, it was contended by Callelley, would give rise to “reasonable apprehension” of bias from the objective standpoint of reasonable persons. None of these statements demonstrated a reasonable apprehension of premature judgment, which Callelly had claimed had further tainted the proceedings.

Callelly judgment: High Court finds constitutional justice infringed by Seanad inquiry

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