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Courts does not have power to overturn Callely finding, Supreme Court hears

FORMER senator Ivor Callely complied with the definition of habitual residence when he claimed expenses from his home in West Cork despite a Seanad committee finding against him, the Supreme Court was told today.

Michael O’Higgins SC, for Mr Callely, said his client “didn’t design the system, he followed it”.  In 2008, 2009 and 2010 “on a worst case scenario, the evidence was he spent 60 per cent plus of his time in Kilcrohane (Cork)”, counsel said.


The seven-member Supreme Court was hearing an appeal by the Seanad Committee on Members Interests against a decision of the High Court which found there had been a breach of fair procedures when the committee censured Mr Callely over an expenses claim. They suspended him for 20 days with consequent loss of pay of nearly € 17,000, which was later overturned.


Mr O’Higgins said the findings made by the committee against Mr Callely, who had previously represented Clontarf Dublin as a TD, had “emboldened the media” to write appalling things about him and someone had also put a snake on his porch.


But it had been accepted he had complied with the definition of habitual residence given by the Department of Finance when he made his expenses claims for 2008, 2009 and 2010.


He said the committee had not referred to the definition and, in the course of pronouncing its determination, had “dis-applied” the definition. They also “never told anyone they were doing this”.


They applied a “new definition” as the test of whether Mr Callely had done anything wrong and the new definition was “wholly different” from the previous one, he said.


“The public at large was left completely in ignorance,” Mr O’Higgins said.


If the committee had said Mr Callely complied with the letter of the law, but not the spirit of it, and that he had been “making the best of the system”, that would have been a different case. But Mr Callely had been “accused of being a thief”, Mr O’Higgins said.


Earlier today, William Binchy SC, for the committee, argued that the courts did not have the power to overturn the findings made by a Seanad committee.


He said based on the separation of powers in the Constitution, the findings made against Mr Callely were “not judiciable” (not capable of being placed before a court for determination).


It would be wrong to think that simply because the committee had been acting using powers based in legislation, it would make their actions judiciable, he said.


Counsel conceded the idea legislation could be enacted that was not subject to judicial review was “odd”, but Article 15 (10) of the Constitution gave that power.


Mr Binchy said the actions of the committee were within its powers under parliamentary privilege. Where the separation of power did arise, there may be circumstances where constitutional rights that might otherwise apply are set aside, he said, and this was “an awesome power”.


He also said the power wasn’t  something the court should “concede grudgingly and nip down to its core”.


The appeal was adjourned until next month.

Online Editors