Callely not out of the woods on suspension


OPINION:Seanad has more power to protect its integrity than members seem to realise, writes EUGENE REGAN

THE SEANAD will be in the spotlight on Monday when its Committee on Members’ Interests meets to investigate its own members’ alleged abuse of the expenses regime.

The committee is once again investigating Senator Ivor Callely, this time in relation to incorrect invoicing for mobile phones, and two Fianna Fáil Senators, Ann Ormonde and Larry Butler, in relation to a question mark over their normal place of residence used for expenses purposes.

One might ask what is the point of all this, if all the committee can do when a senator is found to have broken the rules is merely suspend him or her for some days. Callely has already been suspended for 20 days for misrepresenting his normal place of residence.

Up to this point we have been led to believe that the committee could do no more than suspend a member for breaching the rules. But on closer examination of the legislation, a totally different picture emerges. The committee has much greater powers than appreciated, if it cares to use them. To put this in perspective, what Callely does not realise, nor I believe do the members of the committee, is that under the law he has actually been suspended from the Seanad, not just for 20 sitting days but indefinitely. I shall explain.

The committee in its report of July 14th this year found that Callely was in breach of the Ethics in Public Office Act 1995-2001 in misrepresenting his normal place of residence as west Cork for the purpose of claiming allowances. They directed that he “regularise and make good his allowance affairs and ceases to misrepresent his normal place of residence”. On foot of this report on the same day the Seanad passed a resolution suspending Callely from the House for 20 sitting days without pay.

Callely has rejected the report of the committee and its findings, no doubt confident in the belief that after the 20 days had passed that the matter would be at an end. But he is wrong. He cannot ignore the findings of the report and simply resume his seat in the Seanad in late November. He must first comply with the directions of the committee and cease to misrepresent his normal place of residence for the purpose of claiming allowances.

Section 28 (2)(c)(ii)of the Ethics in Public Office Act 1995, as amended by the Standards in Public Office Act 2001, provides that where a committee reports, and a resolution is passed suspending a member for a specified period, and where the breach in issue is continuing, then the member is suspended “in addition, . . . until such time after the expiration of the period specified, . . . as he or she takes the steps specified . . . to secure compliance . . .”

Accordingly, before he can resume his seat, as a matter of law, Callely must comply with the committee’s directions in its report of July 14th and stop misrepresenting his normal place of residence as west Cork. In the circumstances Callely is suspended indefinitely from the Seanad until he complies with the committee’s directions.

It should be said that while Callely’s period of suspension is indefinite under existing legislation his salary can only be withheld for the suspension period of 20 days. While unsatisfactory, his continued suspension until he complies with the committee’s ruling does to some extent protect the integrity of the system.

Another innovation introduced in 2001 is found at section 10 (1A) of the Ethic in Public Office Act 1995-2001, which gives the committee the power to refer a matter under investigation to the DPP, which would inevitably lead to a Garda investigation. The section provides that: “if either during or at the conclusion of an investigation . . . a committee is of the opinion that the person the subject of an investigation may have committed an offence it shall prepare a report in writing in relation to the matter and furnish it . . . to the Director of Public Prosecutions.”

One must presume the committee was aware of this provision when they investigated Callely’s €81,000 expenses claim based on the misrepresentation of his normal place of residence, and chose not to act on it. This is surely the case since this provision not only empowers the committee to refer a matter to the DPP but obliges it to do so if it considers an offence may have been committed.

The situation may be quite different when the committee begins investigating the €3,000 false invoices for mobile phones submitted by Callely, which he himself has acknowledged should not have been submitted (and has repaid). The members of the committee, being advised of the provisions of the Criminal Justice (Theft and Fraud Offences) Act, 2001, must consider whether in their opinion an offence may have been committed, and if they form the view that this may be the case they are obliged to refer the matter to the DPP.

The committee must also consider if by proceeding with their inquiry they may prejudice a possible criminal prosecution, in which case they may stay their investigation and refer the matter immediately to the DPP.

The Seanad will not be judged on the transgressions of one or two senators but it will rightly be judged on how it deals with such transgressions. What is now clear is that the Committee on Members’ Interests has the necessary powers under existing Ethics in Public Office legislation to deal with wrongdoing by its members. However, the committee must be prepared to exercise those powers to the full. Only in this way will the Seanad’s reputation be restored.

Eugene Regan SC is a Fine Gael member of the Seanad