Cross-Border Institutions

Cases

McGimpsey v Ireland and Ors

 

[1989] ILRM 209

Barrington J
In this case the plaintiffs claim a declaration that the Agreement concluded between the Government of Ireland and the Government of the United Kingdom at Hillsborough, Co. Down, on 15 November 1985, generally known as the Anglo-Irish Agreement, is contrary to the provisions of the Constitution.

The plaintiffs
The first named plaintiff Christopher McGimpsey was born on 3 September 1952 at Donaghdee, Co. Down and now lives at 40 Kings Road, Belfast, Northern Ireland. He was educated at Campbell College, Belfast, Syracuse University and the University of Edinburgh. He is an historian by training and is a company director. He is the holder of an Irish passport. The second named plaintiff, Michael McGimpsey, was born on 1 July 1948 in Northern Ireland and resides at Ardeevin, 97 Belfast Road, Newtownards, Co. Down. He was educated at Regent House, Newtownards and at Trinity College, Dublin. He is a company director. Both plaintiffs were born in Ireland and are therefore, in contemplation of Irish law, citizens of Ireland.

Both plaintiffs are members of the Official Unionist Party of Northern Ireland. Both are deeply concerned about the present state of Northern Ireland and of all Ireland. Both reject any form of sectarianism and both have been involved in peace movements working to accommodate people of various traditions who live on the island of Ireland. Both gave evidence before the New Ireland Forum and, in oral and written submissions, attempted to explain to the Forum how the problem appeared to men fully committed to Unionism but interested in finding a peaceful solution to the problems of Northern Ireland and of Ireland. Both believe that the Anglo-Irish Agreement has aggravated the problem and, instead of solving the problem, has become part of it. Both complain that the Irish Government, in entering into the Anglo-Irish Agreement, neglected its duty to the majority community in Northern Ireland and violated the provisions of its own Constitution.

The defendants are the State, the Government and the Attorney General.

The Anglo-Irish Agreement
The text of the Anglo-Irish Agreement published by the Government Publications Office is as follows:

AGREEMENT

between

THE GOVERNMENT OF IRELAND

and

THE GOVERNMENT OF THE UNITED KINGDOM

The Government of Ireland and the Government of the United Kingdom:

Wishing further to develop the unique relationship between their peoples and the close co-operation between their countries as friendly neighbours and as partners in the European Community;

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Recognising the major interest of both their countries and, above all, of the people of Northern Ireland in diminishing the divisions there and achieving lasting peace and stability:

Recognising the need for continuing efforts to reconcile and to acknowledge the rights of the two major traditions that exist in Ireland, represented on the one hand by those who wish for no change in the present status of Northern Ireland and on the other hand by those who aspire to a sovereign united Ireland achieved by peaceful means and through agreement;

Reaffirming their total rejection of any attempt to promote political objectives by violence or the threat of violence and their determination to work together to ensure that those who adopt or support such methods do not succeed;

Recognising that a condition of genuine reconciliation and dialogue between unionists and nationalists is mutual recognition and acceptance of each other’s rights;

Recognising and respecting the identities of the two communities in Northern Ireland, and the right of each to pursue its aspirations by peaceful and constitutional means;

Reaffirming their commitment to a society in Northern Ireland in which all may live in peace, free from discrimination and intolerance, and with the opportunity for both communities to participate fully in the structures and processes of government;

Have accordingly agreed as follows:

A

STATUS OF NORTHERN IRELAND

ARTICLE 1

The two Governments

(a) affirm that any change in the status of Northern Ireland would only come about with the consent of a majority of the people of Northern Ireland;

(b) recognise that the present wish of a majority of the people of Northern Ireland is for no change in the status of Northern Ireland;

(c) declare that, if in the future a majority of the people of Northern Ireland clearly wish for and formally consent to the establishment of a united Ireland, they will introduce and support in the respective Parliaments legislation to give effect to that wish.

B

THE INTERGOVERNMENTAL CONFERENCE

ARTICLE 2

(a) There is hereby established, within the framework of the Anglo-Irish Intergovernmental Council set up after the meeting between the two Heads of Government on 6 November 1981, an Intergovernmental Conference (hereinafter referred to as ‘the Conference’), concerned with Northern Ireland and with relations between the two parts of the island of Ireland, to deal, as set out in this Agreement, on a regular basis with

(i) political matters;
(ii) security and related matters;
(iii) legal matters, including the administration of justice;
(iv) the promotion of cross-border co-operation.
(b) The United Kingdom Government accepts that the Irish Government will put forward views and proposals on matters relating to Northern Ireland within the field of activity of the Conference in so far as those matters are not the responsibility of a devolved administration in Northern Ireland. In the interest of promoting peace and stability, determined efforts shall be made through the Conference to resolve any differences. The Conference will be mainly concerned with Northern Ireland; but some of the matters under consideration will involve cooperative action in both parts of the island of Ireland, and possibly also in Great Britain. Some of the proposals considered in respect of Northern Ireland may also be found to have application by the Irish Government. There *213 is no derogation from the sovereignty of either the Irish Government or the United Kingdom Government, and each retains responsibility for the decisions and administration of government within its own jurisdiction.

ARTICLE 3

The Conference shall meet at Ministerial or official level, as required. The business of the Conference will thus receive attention at the highest level. Regular and frequent Ministerial meetings shall be held; and in particular special meetings shall be convened at the request of either side. Officials may meet in subordinate groups. Membership of the Conference and of sub-groups shall be small and flexible. When the Conference meets at Ministerial level an Irish Minister designated as the Permanent Irish Ministerial Representative and the Secretary of State for Northern Ireland shall be joint Chairmen. Within the framework of the Conference other Irish and British Ministers may hold or attend meetings as appropriate: when legal matters are under consideration the Attorneys General may attend. Ministers may be accompanied by their officials and their professional advisers: for example, when questions of security policy or security co-operation are being discussed, they may be accompanied by the Commissioner of the Garda Siochana and the Chief Constable of the Royal Ulster Constabulary; or when questions of economic or social policy or co-operation are being discussed, they may be accompanied by officials of the relevant Departments. A Secretariat shall be established by the two Governments to service the Conference on a continuing basis in the discharge of its functions as set out in this Agreement.

ARTICLE 4

(a) In relation to matters coming within its field of activity, the Conference shall be a framework within which the Irish Government and the United Kingdom Government work together

(i) for the accommodation of the rights and identities of the two traditions which exist in Northern Ireland; and

(ii) for peace, stability and prosperity throughout the island of Ireland by promoting reconciliation, respect for human rights, co-operation against terrorism and the development of economic, social and cultural co-operation.

(b) It is the declared policy of the United Kingdom Government that responsibility in respect of certain matters within the powers of the Secretary of State for Northern Ireland should be devolved within Northern Ireland on a basis which would secure widespread acceptance throughout the community. The Irish Government supports that policy.

(c) Both Governments recognise that devolution can be achieved only with the co-operation of constitutional representatives within Northern Ireland of both traditions there. The Conference shall be a framework within which the Irish Government may put forward views and proposals on the modalities of bringing about devolution in Northern Ireland, in so far as they relate to the interests of the minority community.

C

POLITICAL MATTERS

ARTICLE 5

(a) The Conference shall concern itself with measures to recognise and accommodate the rights and identities of the two traditions in Northern Ireland, to protect human rights and to prevent discrimination. Matters to be considered in this area include measures to foster the cultural heritage of both traditions, changes in electoral arrangements, the use of flags amd emblems, the avoidance of economic and social discrimination and the advantages and disadvantages of a Bill of Rights in some form in Northern Ireland.

(b) The discussion of these matters shall be mainly concerned with Northern Ireland, but the possible application of any measures pursuant to this Article by the Irish Government in their jurisdiction shall not be excluded.

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(c) If it should prove impossible to achieve and sustain devolution on a basis which secures widespread acceptance in Northern Ireland, the Conference shall be a framework within which the Irish Government may, where the interests of the minority community are significantly or especially affected, put forward views on proposals for major legislation and on major policy issues, which are within the purview of the Northern Ireland Departments and which remain the responsibility of the Secretary of State for Northern Ireland.

ARTICLE 6

The Conference shall be a framework within which the Irish Government may put forward views and proposals on the role and composition of bodies appointed by the Secretary of State for Northern Ireland or by Departments subject to his direction and control including
the Standing Advisory Commission on Human Rights;
the Fair Employment Agency;
the Equal Opportunities Commission;
the Police Authority for Northern Ireland;
the Police Complaints Board.
D

SECURITY AND RELATED MATTERS

ARTICLE 7

The Conference shall consider
(i) security policy;
(ii) relations between the security forces and the community;
(iii) prisons policy.
(b) The Conference shall consider the security situation at its regular meetings and thus provide an opportunity to address policy issues, serious incidents and forthcoming events.

(c) The two Governments agree that there is a need for a programme of special measures in Northern Ireland to improve relations between the security forces and the community, with the object in particular of making the security forces more readily accepted by the nationalist community. Such a programme shall be developed, for the Conference’s consideration, and may include the establishment of local consultative machinery, training in community relations, crime prevention schemes involving the community, improvements in arrangements for handling complaints, and action to increase the proportion of members of the minority in the Royal Ulster Constabulary. Elements of the programme may be considered by the Irish Government suitable for application within their jurisdiction.

(d) The Conference may consider policy issues relating to prisons. Individual cases may be raised as appropriate, so that information can be provided or inquiries instituted.

E

LEGAL MATTERS, INCLUDING THE ADMINISTRATION OF JUSTICE

ARTICLE 8

The Conference shall deal with issues of concern to both countries relating to the enforcement of the criminal law. In particular it shall consider whether there are areas of the criminal law applying in the North and in the South respectively which might with benefit be harmonised. The two Governments agree on the importance of public confidence in the administration of justice. The Conference shall seek, with the help of advice from experts as appropriate, measures which would give substantial expression to this aim, considering inter alia the possibility of mixed courts in both jurisdictions for the trial of certain offences. The Conference shall also be concerned with policy aspects of extradition and extra-territorial jurisdiction as between North and South.

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F

CROSS-BORDER CO-OPERATION ON SECURITY, ECONOMIC, SOCIAL AND CULTURAL MATTERS

ARTICLE 9

(a) With a view to enhancing cross-border co-operation on security matters, the Conference shall set in hand a programme of work to be undertaken by the Commissioner of the Garda Siochana and the Chief Constable of the Royal Ulster Constabulary and, where appropriate, groups of officials, in such areas as threat assessments, exchange of information, liaison structures, technical co-operation, training of personnel, and operational resources.

(b) The Conference shall have no operational responsibilitiese. Rsponsibility for police operations shall remain with the heads of the respective police forces, the Commissioner of the Garda Siochana maintaining his links with the Minister for Justice and the Chief Constable of the Royal Ulster Constabulary his links with the Secretary of State for Northern Ireland.

ARTICLE 10

(a) The two Governments shall co-operate to promote the economic and social development of those areas of both parts of Ireland which have suffered most severely from the consequences of the instability of recent years, and shall consider the possibility of securing international support for this work.

(b) If it should prove impossible to achieve and sustain devolution on a basis which secures widespread acceptance in Northern Ireland, the Conference shall be a framework for the promotion of co-operation between the two parts of Ireland concerning cross-border aspects of economic, social and cultural matters in relation to which the Secretary of State for Northern Ireland continues to exercise authority.

(c) If responsibility is devolved in respect of certain matters in the economic, social or cultural areas currently within the responsibility of the Secretary of State for Northern Ireland, machinery will need to be established by the responsible authorities in the North and South for practical co-operation in respect of cross-border aspects of these issues.

G

ARRANGEMENTS FOR REVIEW

ARTICLE 11

At the end of three years from signature of this Agreement, or earlier if requested by either Government, the working of the Conference shall be reviewed by the two Governments to see whether any changes in the scope and nature of its activities are desirable.

H

INTERPARLIAMENTARY RELATIONS

ARTICLE 12

It will be for Parliamentary decision in Dublin and in Westminster whether to establish an Anglo-Irish Parliamentary body of the kind adumbrated in the Anglo-Irish Studies Report of November 1981. The two Governments agree that they would give support as appropriate to such a body, if it were to be established.

I

FINAL CLAUSES

ARTICLE 13

This Agreement shall enter into force on the date on which the two Governments exchange notifications of their acceptance of this Agreement.

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In witness whereof the undersigned, being duly authorised thereto by their respective Governments, have signed this Agreement.

Done in two originals at Hillsborough on the 15th day of November 1985

For the Government of Ireland

For the Government of the United Kingdom

Gearóid Mac Gearailt

Margaret Thatcher

The Agreement has been duly ratified by the parties and has been deposited with the Secretariat of the United Nations for registration pursuant to Article 102 of the Charter.

The plaintiffs’ case
The plaintiff’s challenge to the validity of the Anglo-Irish Agreement rests on three main submissions. They say—

(1) that the Agreement, by recognizing the legitimacy of the present constitutional arrangements in respect of Northern Ireland, violates Articles 2 and 3 of the Constitution;

(2) that in as much as the Agreement establishes an Intergovernmental Conference and Secretariat it fetters the power of the Government to conduct the external affairs powers of the State under Articles 28 and 29 of the Constitution and that, in this respect, the Agreement has many features in common with Title III of the Single European Act which was found to be unconstitional on this account in Crotty v An Taoiseach [1987] ILRM 400;

(3) that the State may not enter into a treaty whereby it commits itself to have regard to one section of the Irish nation namely the ‘minority’ population of Northern Ireland, and to disregard the interests of a section of the Irish people, namely, the ‘majority’ community in Northern Ireland.

Locus Standi
The defendants plead that the plaintiffs have no locus standi to put forward any of these submissions and they rely upon the decision of the Supreme Court in Cahill v Sutton [1980] IR 269. The defendants admit — indeed claim — that both plaintiffs are citizens of Ireland but they deny that that fact alone gives them status to mount the present proceedings. In Crotty v An Taoiseach [1987] ILRM 400 the Supreme Court — and indeed the High Court — accepted that a citizen who is exposed to no greater injury than that of the citizens at large might still have status to challenge legislation or a treaty if he could show that the proposed action violated the Constitution and that he, in common with his fellow citizens, was being denied the right to be consulted in a referendum. But that, the defendants say, is not this case. Moreover, the defendants say that the plaintiffs should not be permitted to invoke Article 2 of the Constitution because they themselves do not believe that ‘the national territority consists of the whole island of Ireland’ and are only invoking this Article in a tactical

The plaintiffs admit that they have received support and encouragement from many leaders of Unionist opinion including Mr James Molyneaux, Mr Harold McCusker and Mr Kenneth McGuinness but they say, and I accept, that this action is their own action and in no way a representative one. At the same time they claim that their views reflect the views of many people in Northern Ireland. They agree that they are invoking Article 2 of the Constitution, not because they believe in it, but for the purpose of attacking the Anglo-Irish Agreement. They believe that the Anglo-Irish Agreement has made a bad situation in Northern Ireland worse and they hope that if they can destroy the Agreement they would open the way for a new form of political dialogue in Northern Ireland.

Mr Fitzsimons SC (for the defendants) relies on a passage in the judgment of Henchy J in Cahill v Sutton [1980] IR 269 at 284 where, having stressed that a person to be eligible to attack the constitutionality of an Act of Parliament must have some form of threshold qualification, he continued:

Without such a qualification, the courts might be thought to encourage those who have opposed a particular Bill on its way through Parliament to ignore or devalue its elevation into an Act of Parliament by continuing their oppostion to it by means of an action to have it invalidated on constitutional grounds. It would be contrary to the spirit of the Constitution if the Courts were to allow those who were opposed to a proposed legislative measure, inside or outside Parliament, to have an unrestricted and unqualified right to move from the political arena to the High Court once a Bill had become an Act. It would not accord with the smooth working of the organs of State established by the Constitution if the enactments of the National Parliament were liable to be thwarted or delayed in their operation by litigation which could be brought at the whim of every or any citizen, whether or not he had a personal interest in the outcome.

Mr Fitzsimons SC seeks to apply the same line of reasoning to international treaties and he draws attention to another passage on the same page of the reported judgment where Henchy J said:

For the litigious person, the crank, the obstructionist, the meddlesome, the perverse, the officious man of straw and many others, the temptation to litigate the constitutionality of a law, rather than to observe it, would prove irresistible on occasion.

Mr Fitzsimons SC concedes that the plaintiffs do not fall within the categories of litigious persons, cranks, obstructionists, meddlesome or perverse people or officious men of straw but he does suggest that they fall under the category of ‘many others’ referred to in the passage quoted.

The plaintiffs’ counsel submit that the ‘common good’ referred to in the preamble to the Constitution embraces the common good of all the people living on the island of Ireland including the unionist population of Northern Ireland and that the plaintiffs, as members of that community, are entitled to expect that the Irish Government, in entering into treaties which affect their interests, will at least observe the provisions of its own Constitution. Counsel for the plaintiffs also submit that the Crotty case illustrates that the courts may draw a distinction between a litigant who is merely seeking to assert his private rights and a litigant who is asserting a right which he shares with the citizens in general or with a large class of them. Finally, counsel submit that the rule laid down in Cahill v Sutton is a rule of prudence but that a residual discretion remains in the court to waive the *218 requirements of personal standing if there are weighty countervailing considerations justifying a departure from the rule. They refer to the passage at 285 of the report where Henchy J said:

… the absence of a prejudice or injury peculiar to the challenger might be overlooked, in the discretion of the court, if the impugned provision is directed at or operable against a grouping which includes the challenger, or with whom the challenger may be said to have a common interest — particularly in cases where, because of the nature of the subject matter, it is difficult to segregate those affected from those not affected by the challenged provision.

However, those examples of possible exceptions to the rule should not be taken as indicating where the limits of the rule are to be drawn. It is undesirable to go further than to say that the stated rule of personal standing may be waived or relaxed if, in the particular circumstances of a case, the court finds that there are weighty countervailing considerations justifying a departure from the rule.

The present case is, to say the least, unusual and there is no exact precedent governing it. But it appears to me that the plaintiffs are patently sincere and serious people who have raised an important constitutional isssue which affects them and thousands of others on both sides of the border. Having regard to these factors and having regard to the wording of the preamble to the Constitution and of Articles 2 and 3 it appears to me that it would be inappropriate for this Court to refuse to listen to their complaints. On that basis I propose to consider their case.

Approach of the court when considering constitutionality of treaties
All parties are agreed that the Anglo-Irish Agreement, though executed only by the two heads of Government, is an international treaty. All parties are also agreed that the Government in exercising the executive power of the State in or in connection with its external relations is subject to the Constitution. This is clear from the combined wording of Article 29.4 and Article 28.2 of the Constitution.

Article 29.4.1° reads:

The executive power of the State in or in connection with its external relations shall in accordance with Article 28 of this Constitution be exercised by or on the authority of the Government.

Article 28.2 reads:

The executive power of the State shall, subject to the provisions of this Constitution, be exercised by or on the authority of the Government.

If any doubts were possible on the matter those doubts have been finally removed by the decision of the Supreme Court in Crotty v An Taoiseach [1987] ILRM 400. That case and the case of Boland v An Taoiseach [1974] IR 338) are the obvious cases to look to for guidance when considering the problems raised by the present case. But it is important to remember that in the Boland case, the court was considering merely a communiqué issued by the two Governments after the Sunningdale Conference and that, in the Crotty case, the court was considering whether the Single European Act should or should not be ratified by our Government having regard to the provisions of the Constitution. In The State (Gilliland) v Governor of Mountjoy Prison [1987] ILRM 278 the court had to deal with the specific problem of whether the Washington Treaty imposed a charge upon public funds and, if so, whether it required the approval of a resolution of Dáil *219 Éireann before it could become binding on the State. This however is the first time in which the court has had to consider a treaty in respect of which all formalities have been completed. It has been executed and ratified by the parties, approved by Dáil Éireann and lodged with the Secretariat of the United Nations for registration.

Accepting that the Government, in exercising the treaty-making power, is subject to the Constitution and therefore to judicial review, and accepting also that a citizen whose constitutional rights are adversely affected by an international treaty may have status to attack it in our courts, Mr Fitzsimons SC submits that the time has come for this Court to consider what method of approach the court should adopt when the question arises as to whether the Government has exceeded its constitutional powers in entering into a particular international treaty.

The Crotty and Boland cases accept that our system of constitutional government is based on a separation of powers between the legislative, executive and judicial organs of Government, each of which is supreme within its own domain and all of which are subject to the Constitution. The Boland case is also authority for the proposition that the formulation of national policy is a matter for the executive branch of Government and that the Government must be free from judicial interference in formulating policy. This is merely a matter of common sense. A time may arise when the implementation of Government policy may involve legislation or some administrative act affecting the rights of citizens or entering into an international treaty and, at that stage, the actions of the Government may be open to judicial review but the Government must be free to formulate policy even if the implementation of its policy may involve asking the people to consent to an amendment to the Constitution. Otherwise no form of political progress would be possible.

Under the British system, foreign policy was conducted by virtue of the royal prerogative and was essentially a matter for the Government. The Government was of course ultimately answerable to Parliament and no foreign treaty could create a charge on public funds or become part of the domestic law of Great Britain without the consent of Parliament. To these traditional safeguards we have added a further provision that the Government in exercising the executive power in relation to foreign affairs is subject to the Constitution. For that reason it is subject to judicial review. It is necessary, however, to stress that the conduct of the foreign relations of the State is primarily a matter for the Government. It, like the legislature and the judiciary is a guardian of the Constitution and is entitled to the respect of the other organs of State when it is acting within its proper domain.

In the Sinn Fein Funds case, Buckley v The Attorney General, [1950] IR 67, O’Byrne J based the presumption of the constitutionality of statutes passed by the Oireachtas upon this respect. He said, at p. 80:

Such a principle, in our opinion, springs from, and is necessitated by, that respect which one great organ of the State owes to another.

O’Byrne J’s reasoning is general in its terms and is not confined to the relationship between the Oireachtas and the judiciary. It appears to me that there should be a similar presumption that a Government did not violate the Constitution in entering *220 into a particular treaty and that unless the treaty expressly contradicts some provision of the Constitution the onus is on the plaintiff clearly to establish that the Government has violated the Constitution in entering into the treaty. This onus must necessarily be a heavy one. The conduct of the foreign policy of the State is not a matter which easily lends itself to judicial review and if there is any area in which judicial restraint is appropriate, this is it.

When it comes, however, to the interpretation of the treaty different considerations apply. An international treaty has only one meaning and that is its meaning in international law. Its interpretation cannot be coloured by reference to the Constitution. The approach to the interpretation of post-constitutional statutes laid down in East Donegal Co-Operative Livestock Marts Ltd v Attorney General [1970] IR 317 can have no application to the interpretation of a treaty. For guidance on this subject one must look to the general principles of international law and in particular to the Rules of Interpretation set out in Article 31 of the Vienna Convention on the Law of Treaties. Ireland, admittedly, is not a party to that Convention, but Article 31 is acknowledged to have codified the relevant principles of interpretation.

One further matter is probably worth mentioning. A treaty is an agreement between two or more sovereign powers. When a citizen claims that the Government has, by entering into a particular treaty, violated his constitutional rights the matter will usually come to be debated in court in the absence of the other party to the treaty. The court will not usually be aware of tacit understandings existing between the two Governments as to how the treaty is to be interpreted or implemented. Such matters may only come into the open in the event of the two Governments disagreeing on the interpretation of the treaty and taking the matter to an international court. Moreover, the treaty itself will frequently be a compromise between the interests of the two Governments. Neither Government may have achieved all it would have wished to achieve. There may not be things in the treaty which one Government would like to see there and there may be things in it which it would prefer not to see there. In such circumstances a Government may have to make a pragmatic judgment as to whether the national aims are best advanced by entering into the treaty or by not entering into the treaty. These are matters of practical political judgment and are essentially matters for the Government rather than for the courts. Unless, therefore, the treaty can be shown to be in clear conflict with some provision of the Constitution the courts should respect the Government’s judgment.

Submission on Articles 2 and 3
One of the plaintiffs’ principal submissions was that the Anglo-Irish Agreement violates Articles 2 and 3 of the Constitution. The correct interpretation of Articles 2 and 3 is therefore central to the present case. Counsel felt that they could identify from the dicta of various judges two different schools of thought as to how Articles 2 and 3 were to be interpeted. Counsel on both sides submitted that the second line of interpretation discussed below is to be preferred. Indeed a disturbing aspect of *221 the case was that counsel for the plaintiffs, in the course of their attack upon the Agreement, tended to put the nationalist claims in the Constitution at their most rigid, and Mr Clarke SC, on behalf of the plaintiffs, put before the court the same interpretation of Articles 2 and 3 as did Mr Fitzsimons SC on behalf of the defendants. This has created a difficulty for me in that, on the one hand, the matters at issue are too important to be disposed of by agreement between counsel and, on the other hand, I am conscious that I have not had the benefit of hearing the matter debated fully by two teams of counsel taking up opposing positions. Under these circumstances what I propose to do is to discuss both suggested lines of interpretation separately.

One thing that can be said about the Constitution is that it is a nationalist Constitution. One of the objectives which the preamble to the Constitution looks to is that ‘the unity of our country’ should be restored. The preamble therefore accepts that the country is divided and makes the restoration of unity one of the national aims. This matter was forcefully put by Hederman J recently in his judgment in Russell v Fanning [1988] ILRM 333, at 346–347:

The reunification of the national territory, which consists of the whole island of Ireland, its islands and territorial seas (see Article 2 of the Constitution) is by the provisions of the preamble to the Constitution and of Article 3 of the Constitution a constitutional imperative and not one, the pursuit of which, or the non-pursuit of which is within the discretion of the Government or any other organ of State. Therefore, the only question of policy which arises, is as to the manner in which this may be achieved. The Constitution does not lay down any manner in which this policy is sought to be achieved, though of course, it is within the competence of the Government, and of the Oireachtas, to decide from time to time, what policy to adopt to achieve or to secure the reunification of the national territory.

It is of significance that Articles 2 and 3 appear in a section of the Constitition which is headed ‘The Nation’. The next section of the Constitution (Articles 4 to 11) is headed ‘The State’.

In Article 1 the Irish nation affirms its inalienable and indefeasible and sovereign right to choose its own form of Government, to determine its relations with other nations, and to develop its life, political, economic and cultural, in accordance with its own genius and traditions. Pursuing the same logic the Constitution goes on to state in Article 2:

The national territory consists of the whole island of Ireland, its islands and the territorial seas.

Article 3 then moves slightly away from the area of nationalist doctrine towards delimiting the powers of the Parliament to be established by the Constitution. This Parliament is indeed to be the ‘National’ Parliament and is so described in the section of the Constitution beginning with Article 15. But ‘pending the re-integration of the national territory’ its powers are circumscribed by the Constitution itself. This becomes clearer if, for the moment, one sets down Article 3 without the words ‘and without prejudice to the right of the Parliament and Government established by this Constitution to exercise jurisdiction over the whole of that territory’. These words are of course important and I shall return to them later but to bring out the meaning of Article 3 as a temporary constitutional circumscription of the powers of the Oireachtas it is helpful to print Article 3 *222 without them. As so edited it reads:

Pending the re-integration of the national territory … the laws enacted by that Parliament shall have the like area and extent of application as the laws of Saorstát Éireann and the like extra-territorial effect.

The former Chief Justice O’Higgins, delivering the judgment of the Supreme Court in In re the Criminal Law Jurisdiction Bill 1975 [1977] IR 129, referred at p. 145 to the fact that Articles 2 and 3 of the Constitution can only be understood if their background of law and political theory is appreciated. He also stated, at p. 147, that the Constitution contains more than legal rules; it reflects, in part, aspirations and aims and expresses the political theories on which the people acted when they enacted the Constitution. He then continued:

One of the theories held in 1937 by a substantial number of citizens was that a nation, as distinct from a State, had rights: that the Irish people living in what is now called the Republic of Ireland and in Northern Ireland together formed the Irish nation: that a nation has a right to unity of territory in some form be it as a unitary or federal state: and that the Government of Ireland Act 1920, though legally binding, was a violation of that national right to unity which was superior to positive law.

This national claim to unity exists not in the legal but in the political order and is one of the rights which are envisaged in Article 2: it is expressly saved by Article 3 which states the area to which the laws enacted by the Parliament established by the Constitution apply.

The effect of Article 3 is that, until the division of the island of Ireland is ended, the laws enacted by the Parliament established by the Constitution are to apply to the same area and have the same extent of application as the laws of Saorstat Eireann had.

As the Supreme Court said, the national claim to unity made in Article 2 of the Constitution exists in the political and not in the legal order. If, therefore, it is expressly saved by Article 3 by the use of the words ‘and without prejudice to the right of the Parliament and Government established by this Constitution to exercise jurisdiction over the whole of that territory’ it is saved as a political claim not as a legal right. At most the right of the national Parliament to legislate for the whole of the national territory is an inchoate right which Article 3 of the Constitution does not permit it to exercise in the legal order until the national territory has been re-integrated. We are not dealing here with a unilateral declaration where one party says ‘without prejudice to my right to do ‘A’ it is not my present intention to do it’. We are dealing with a limitation which the Constitution itself places on the legal powers of the national Parliament ‘pending the re-integration of the national territory’.

However, counsel for the defendants and for the plaintiffs both rested their respective cases on the theory that Article 2 is a legal claim to the whole island of Ireland and that the Oireachtas has got jurisdiction at present to legislate for the whole of Ireland even though it may not choose to do so.

Mr Fitzsimons SC relied on the dictum of O’Byrne J. in The People v Ruttledge (in which judgment was delivered on 16 May 1947) [1978] IR 376 where, referring to Articles 2 and 3, he said, at 380:

The effect of these Articles is to proclaim that the whole of Ireland is included in the national territory of the State but that, for the time being, the laws enacted by the national parliament (i.e., the Oireachtas) are to have the same area and extent of application as the laws of Saorstát Éireann. *223 Accordingly, at present, the laws enacted by the Oireachtas do not purport and are not intended to bind the six counties of Northern Ireland.

At the same time Mr Fitzsimons SC agrees that Article 3 accepts the reality of the existing situation on the ground so far as Northern Ireland is concerned. He cites, for example, a passage in the judgment of Henchy J in The State (Gilsenan) v McMorrow [1978] IR 360 at 370 where he said:

It is true that since 1937 there has been no general statutory interpretation or adaptation of the expression ‘Northern Ireland,’ but the frequency with which it occurs in our statutes, the unambiguous way in which it has been so used to identity the six counties over which this State does not exercise jurisdiction, and the clear intention of the legislature in such use that the courts of this State should give judicial recognition to the identity of the territory comprehended by the expression (apart from any other considerations) would make it impossible for our courts to say that ‘Northern Ireland’ is other than an officially-recognized and clear appellation for the part of this island which has remained within the United Kingdom of Great Britain and Northern Ireland.

Both sides again referred to the dictum of the former President of the High Court, O’Keeffe P. in Boland v An Taoiseach [1974] IR 338 when referring to the unilateral declaration of the Irish Government at paragraph 5 of the Sunningdale Communiqué he said at 363:

An acknowledgment by the Government that the State does not claim to be entitled as of right to jurisdiction over Northern Ireland would in my opinion be clearly not within the competence of the Government having regard to the terms of the Constitution. I cannot presume that the Government would consciously make an acknowledgement of that kind and, accordingly, I accept the view of the Chief Justice that Clause 5 represents no more than a reference to the de facto position of Northern Ireland coupled with a statement of policy in regard thereto.

However, no matter what view one takes of the correct interpretation of Articles 2 and 3 of the Constitution Mr Fitzsimons SC submits that one could not object to the admirable sentiments set out in the preamble to the Anglo-Irish Agreement and which he suggests set out the principles in the light of which the Agreement is to be interpreted. The plaintiffs submit that Article 1 of the Agreement recognizes the legitimacy of the present constitutional arrangements in Northern Ireland in a manner which violates Articles 2 and 3 of the Constitution. Article 1, it is true, forms part of the Agreement. It is not a mere unilateral declaration like the one made by the Irish Government at paragraph 5 of the Sunningdale Communiqué. But, as Mr Fitzsimons SC has pointed out, O’Keeffe P, taking the interpretation of Articles 2 and 3 of the Constitution which he did, was still prepared to accept the declaration of the Irish Government at paragraph 5 of the Sunningdale Communiqué. Besides, Mr Fitzsimons suggests that the wording of Paragraph 1 of the Anglo-Irish Agreement is significantly different from that contained in the Irish Government’s declaration at paragraph 5 of the Sunningdale Communiqué. The Irish Government’s declaration at paragraph 5 of that Communiqué reads as follows:

The Irish Government fully accepted and solemnly declared that there could be no change in the status of Northern Ireland until a majority of the people of Northern Ireland desired a change in that status.

Article 1 of the Agreement reads as follows:

*224

(a) affirm that any change in the status of Northern Ireland would only come about with the consent of a majority of the people of Northern Ireland;

(b) recognize that the present wish of a majority of the people of Northern Ireland is for no change in the status of Northern Ireland;

(c) declare that, if in the future a majority of the people of Northern Ireland clearly wish for and formally consent to the establishment of a United Ireland, they will introduce and support in the respective Parliaments legislation to give effect to that wish.

The word ‘affirm’ has been substituted for the words ‘fully accepted and solemnly declared’ and, more significantly, the word ‘would’ has been substituted in sub-paragraph (a) of Article 1 for the word ‘could’ in the Sunningdale declaration.

It appears to me that in Article 1 of the Agreement the two Governments merely recognize the situation on the ground in Northern Ireland (paragraph (b)); form a political judgment about the likely course of future events (paragraph (a)); and state what their policy will be should events evolve in a particular way Paragraph (c)). Even on the second interpretation of Articles 2 and 3 of the Constitution I cannot find anything offensive in this. While I myself prefer the first interpretation of Articles 2 and 3 I do not think that the Anglo-Irish Agreement offends either Article of the Constitution on either interpretation.

Estoppel
The plaintiffs also submitted that because of Article 1 and of the preamble to the Anglo-Irish Agreement the State might now be estopped in international law from asserting title to Northern Ireland as against the United Kingdom Government. In this context they relied upon the Eastern Greenland Case P.C.I.J Rep, Series A No.53 (1933) p. 22: the Temple of Preah Vihear Case [1962] ICJ Rep. p. 6; and the Nuclear Tests Case (Australia v France) [1974] ICJ Rep. 253.

I think that the plaintiffs are right to look at this matter from the point of view of international law. The Anglo-Irish Agreement is an international treaty and its only meaning is its meaning in international law. It is only after one has ascertained what effect it purports to create in international law that one can ascertain if it violates the Irish Constitution. At the same time it is necessary to remember that international law regulates not the relations between nations, but the relations between States.

It appears to me one would need to know what was the position in international law of the respective claims of the Government of the United Kingdom and the Government of Ireland to Northern Ireland prior to the execution of the Anglo-Irish Agreement and in what respect these have been changed by the Anglo-Irish Agreement. One would also need to know what agreements existed concerning Northern Ireland between the Government of the Irish Free State and the Government of the United Kingdom and in what way, if any, these agreements were affected by the enactment of the Constitution. I invited counsel for the plaintiffs to assist me in relation to these matters but they did not advance any submission on them. Mr Fitzsimons SC said he was willing to deal with these matters if they were raised by the plaintiffs but they were not so raised.

Article 29 is the Article in the Constitution which deals with international *225 relations. The first three sections of Article 29 read as follows:-

1. Ireland affirms its devotion to the ideal of peace and friendly co-operation amongst nations founded on international justice and morality.

2. Ireland affirms its adherence to the principle of the pacific settlement of international disputes by international arbitration or judicial determination.

3. Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other States.

I find it hard to believe that the framers of the Constitution, when they drafted these sections, were not conscious of the only major international dispute to which this State is a party which is the dispute with the United Kingdom about the partition of Ireland. While therefore Ireland is a sovereign State and has all the powers associated with sovereignty, it would appear that the pacific settlement of international disputes is the preferred constitutional option. The search for a solution to the partition problem may be a constitutional imperative but the Constitution guides the Government towards a pacific settlement of that dispute in accordance with the generally recognized principles of international law.

Agreement of indefinite duration
The plaintiffs also criticise the Agreement because it is one of indefinite duration. There is no stated means whereby either Government can terminate the Agreement. The working of the Conference established by the Agreement is to be reviewed by the two Governments at the end of three years from the signature of the Agreement. But there is no stated means of terminating the Agreement itself.

The plaintiffs say that pragmatic compromises which might be acceptable in a temporary agreement are unacceptable in a permanent agreement. Yet the agreement is clearly one which is designed to encourage and accommodate political change in Northern Ireland. If, for instance, the ‘United Ireland’ mentioned in Article 1 paragraph (c) of the Agreement were to come about the Agreement would cease to have any further meaning. In that sense it is of its nature an interim agreement and appears to me to be the kind of agreement which an Irish Government may properly enter into ‘pending the re-integration of the national territory’.

Fettering the Executive Power
The plaintiffs’ next major submission is that the Anglo-Irish Agreement fetters the executive power of the Irish Government in a manner not permitted by the Constitution. They point out similarities between the wording of the Agreement and the wording of Title III of the Single European Act. They point out that the fact that Title III was excluded from the cognisance of the Court of Justice of the European Communities by virtue of the provisions of Article 31 of the Single European Act did not prevent it from being regarded as an unconstitutional fetter on the executive power of the State in Crotty v An Taoiseach [1987] ILRM 400. They cite a number of passages from the judgments of the majority in the Supreme Court. The Crotty case was concerned with the external sovereignty of the State. It *226 was also concerned with the executive power of the State which is vested by Articles 28 and 29 of the Constitution in the Government.

The matter is succinctly put by Hederman J at p. 469 of the report. He said:

It appears to me that the essential point at issue is whether the State can by any act on the part of its various organs of government enter into binding agreements with other states, or groups of states, to subordinate, or to submit, the exercise of the powers bestowed by the Constitution to the advice or interests of other states, as distinct from electing from time to time to pursue its own particular policies in union or in concert with other states in their pursuit of their own similar or even identical policies.

The State’s organs cannot contract to exercise in a particular procedure their policy-making roles or in any way to fetter powers bestowed unfettered by the Constitution. They are the guardians of these powers — not the disposers of them.

But it is necessary to remember the context in which this and other similar passages appear in the judgments of the majority of the court.

The Crotty case was concerned with the external sovereignty of the State. When the people authorised the State to become a member of the European Communities by inserting subs. 3° in Article 29.4 of the Constitution they authorised it to surrender part of its sovereignty. They authorised it to join communities which would exercise supranational authority and which aimed at evolving into a United States of Europe. But the communities which the State was authorised to join were economic communities. Everybody realised that if, at some stage, these communities wanted to transform themselves into political communities it would be necessary for the Government to consult the people again in a referendum and seek an extended mandate. The question in the Crotty case was whether the Single European Act was merely an evolution of the communities within the terms of their original objectives or whether it created such a transformation in the communities that it was necessary that the Irish Government should again consult the Irish people before ratifying it. The High Court thought that the Single European Act was merely an evolution within the original objectives of the communities and that no fresh mandate was therefore necessary. The Supreme Court overruled this decision holding that Title III of the Single European Act dealing with European Political Co-operation in the sphere of foreign policy introduced a new element which required a fresh mandate from the people. But in neither court was there any doubt as to the seriousness of the issues which the case raised dealing as it did with the external sovereignty of the State and with the powers vested by the Constitution in the various organs of State.

The question we are dealing with here is totally different. We are not dealing with a multilateral treaty conferring powers on supranational authorities. We are dealing with a bilateral treaty between two sovereign Governments.

The clear implication of Article 29.5 is that the State is entitled to enter into international agreements. This means that the State may commit itself to deal with some aspect of foreign policy in such a way rather than in another. But this is something quite different from purporting to transfer the conduct of the foreign policy of the State to some supranational authority or even to some other State.

As Walsh J put the matter at p. 454 of the report in the Crotty case: *227

The Constitution confers upon the Government the whole executive power of the State, subject to certain qualifications which I will deal with later, and the Government is bound to take care that the laws of the State are faithfully executed. In its external relations it has the power to make treaties, to maintain diplomatic relations with other sovereign States. The Government alone has the power to speak or to listen as a representative of the State in its external relations. It is the Government alone which negotiates and makes treaties and it is the sole organ of the State in the field of international affairs. For these functions it does not require as a basis for their exercise an Act of the Oireachtas. Nevertheless the powers must be exercised in subordination to the applicable provisions of the Constitution. It is not within the competence of the Government, or indeed of the Oireachtas, to free themselves form the restraints of the Constitution or to transfer their power to other bodies unless expressly empowered so to do by the Constitution. They are both creatures of the Constitution and are not empowered to act free from the restraints of the Constitution.

Article 2 of the Anglo-Irish Agreement establishes an Intergovernmental Conference concerned with Northern Ireland and with relations between the two parts of the island of Ireland and deal, on a regular basis, with

(i) political matters
(ii) security and related matters
(iii) legal matters, including the administration of justice.
(iv) the promotion of cross-border co-operation.
But it is clear that the Conference, though served by its own secretariat, is merely a forum in which the representatives of the two Governments find it convenient to meet on a regular basis to discuss matters of common interest relating to Northern Ireland. Article 2 provides that ‘in the interest of promoting peace and stability, determined efforts shall be made through the Conference to resolve any differences’. But the Article also provides that:

There is no derogation from the sovereignty of either the Irish Government or the United Kingdom Government, and each retains responsibility for the decisions and administration of government within its own jurisdiction.

Under these circumstances it appears to me that the present case is totally different from the Crotty case and that it does not involve any unconstitutional fettering of the executive powers of Government.

Rights of minority
The plaintiffs also submit that it is not constitutionally acceptable that the Irish Government should appear in Article 4 paragraph (c) and in Article 5 paragraph (c) as being particularly concerned with the rights of the minority in Northern Ireland.

Article 4 paragraph (c) reads:

Both Governments recognise that devolution can be achieved only with the co-operation of constitutional representatives within Northern Ireland of both traditions there. The Conference shall be a framework within which the Irish Government may put forward views and proposals on the modalities of bringing about devolution in Northern Ireland, in so far as they relate to the interests of the minority community.

Article 5 paragraph (c) reads:

If it should prove impossible to achieve and sustain devolution on a basis which secures widespread acceptance in Northern Ireland, the Conference shall be a framework within which the Irish *228 Government may, where the interests of the minority community are significantly or especially affected, put forward views on proposals for major legislation and on major policy issues, which are within the purview of the Northern Ireland Departments and which remain the responsibility of the Secretary of State for Northern Ireland.

They rely on a passage which appears in the judgment of Henchy J in the Crotty case at p. 463 and which reads as follows:

… the common good of the Irish people is the ultimate standard by which the constitutional validity of the conduct of foreign affairs by the Government is to be judged. In this and in a number of other respects throughout the Constitution the central position of the common good of the Irish people is stressed as one of the most fundamental characteristics of Ireland as a sovereign, independent, democratic State.

A perusal of Title III of the SEA satisfies me that each ratifying Member State will be bound to surrender part of its sovereignty in the conduct of foreign relations.

It appears to me that the point which Henchy J is making in the passage quoted is that, on the ratification of the Single European Act, the common good of the European Community will become the touchstone of foreign policy instead of the common good of the people of Ireland and that this is not constitutionally permissible unless the people authorise it in a referendum. In context it is doubtful if he is speaking of the common good of all the people who inhabit the island of Ireland, but even if he is, the concept of the common good does not exclude, and may even require, special concern for minority interests within the community, particularly if, as in the case of the Anglo-Irish Agreement, one of the objectives is the elimination of discrimination.

It is clear from the preamble to the Agreement that both Governments are concerned for the welfare of both communities in Northern Ireland. The last three paragraphs of the preamble read:

Recognising that a condition of genuine reconciliation and dialogue between unionists and nationalists is mutual recognition and acceptance of each other’s rights:

Recognising and respecting the identities of the two communities in Northern Ireland, and the right of each to pursue its aspirations by peaceful and constitutional means:

Reaffirming their commitment to a society in Northern Ireland in which all may live in peace, free from discrimination and intolerance, and with the opportunity for both communities to participate fully in the structures and processes of government.

Moreover, it is clear from Article 4 that the declared policy of the United Kingdom Government is that responsibility in respect of certain matters within the powers of the Secretary of State for Northern Ireland should be devolved within Northern Ireland on a basis which would secure widespread acceptance throughout the community. It is also clear that the Irish Government supports that policy. It is clear that the majority community would have a major role to play in any such devolved administration. Finally, it is probably worth remembering that the Agreement is a pragmatic compromise worked out between two sovereign Governments concerning a very difficult political problem. There may be things in the Agreement which one Government might prefer not to be there. At the end of the day, when negotiations are over, the Government has to decide whether it will or will not advance the national interest by signing the Agreement. This is essentially a matter of political judgment and unless the Agreement clearly violates some provision of *229 the Constitution it appears to me that the duty of the court is to respect the Government’s decision.

Failure to consult Unionist community
The plaintiffs complain that the Irish Government did not consult them or the political leaders of the Unionist community before entering into the Anglo-Irish Agreement. It is quite clear that the plaintiffs and, it would appear, many other people in their community are deeply hurt by this. But it appears to be essentially a political matter and not one for a court of law.

Orders in Council
Finally the plaintiffs claim that since the dissolution of the Stormont Parliament and the collapse of the power-sharing executive they have largely been governed by Orders in Council pursuant to the system known as ‘direct rule’. They have still, of course, got their representatives in the Imperial Parliament in Westminster but they complain that the system of rule by Orders in Council is largely undemocratic. This may be so but I doubt if the Anglo-Irish Agreement can be blamed for it. It is quite clear from the terms of the Anglo-Irish Agreement that both sovereign governments favour the establishment of some form of devolved government in Northern Ireland but realize that it can only be established with the co-operation of the constitutional representatives of both traditions there. Again, this seems to be a political matter outside the competence of this Court.

Under these circumstances it appears to me that the plaintiffs’ constitutional challenge to the Anglo-Irish Agreement fails.

 

McGimpsey v Ireland and Ors SC

McGimpsey v Ireland and Ors [1990] ILRM 440; [1990] 1 IR 110

Finlay C.J.
1st March 1990

This is an appeal by the plaintiffs against the dismissal on the 25th July, 1988, by order of the High Court made by Barrington J. of their claim for a declaration that the “Agreement between the Government of Ireland and the Government of the United Kingdom” made on the 15th November, 1985 (the Anglo-Irish Agreement) is contrary to the provisions of the Constitution.
The parties
The plaintiffs are two brothers, each of whom was born in Northern Ireland, and each of whom now resides in Northern Ireland.
In the course of his judgment Barrington J. described the political ambitions and activities of both the plaintiffs in the following words:
“Both plaintiffs are members of the Official Unionist party of Northern Ireland. Both are deeply concerned about the present state of Northern Ireland and of all Ireland. Both reject any form of sectarianism and both have been involved in peace movements working to accommodate people of various traditions who live on the island of Ireland. Both gave evidence before the New Ireland Forum and, in oral and written submissions, attempted to explain to the Forum how the problem appeared to men fully committed to unionism but interested in finding a peaceful solution to the problem of Northern Ireland and of Ireland.
Both believe that the Anglo-Irish Agreement has aggravated the problem and instead of solving the problem, has become part of it.”
The learned trial judge, having heard the plaintiffs in evidence, was satisfied that in the expression of these opinions and in their attitude to the problems with which the case is concerned, they were both sincere. Against these findings by the learned trial judge there is no form of appeal, nor is there any suggestion that they are otherwise than justified by the evidence which he heard.
The plaintiffs’ claim
The plaintiffs’ claim for a declaration that the provisions of the Anglo-Irish Agreement are contrary to the provisions of the Constitution was directed in particular to Articles 1, 2, 4 and 5 of the Agreement, and the inconsistency alleged was with Articles 2, 3, 29 and 40 of the Constitution.
The defence
The defendants in their defence, apart from joining issue on the claims of the plaintiffs, raised a special defence denying the locus standi of the plaintiffs in the following terms

“The plaintiffs do not have the locus standi necessary to seek the reliefs sought in the statement of claim on the grounds that neither of them has any interest or right which has or will suffer any injury or prejudice by reason of any of the matters alleged in the statement of claim or by reason of the coming into force of the said Agreement or at all, nor has either a common interest with any other person who could claim to be or to be likely to be adversely affected thereby.”
Amongst the submissions made on behalf of the defendants in the court below on foot of this plea of an absence of locus standi was that the plaintiffs should not be permitted to invoke Article 2 of the Constitution because they themselves do not believe that “the national territory consists of the whole island of Ireland” and are only invoking the Article in a tactical manoeuvre.
In his judgment the learned trial judge stated:
“Both plaintiffs were born in Ireland and are therefore, in contemplation of Irish law, citizens of Ireland.”
The statement of claim contains no claim that either plaintiff is a citizen of Ireland, although it is stated that the first plaintiff is the holder of an Irish passport. No evidence was given by either plaintiff that either he or either of his parents had made the prescribed declaration pursuant to s. 7, sub-s. 1, of the Irish Nationality and Citizenship Act, 1956, or of any facts which would indicate that he was “otherwise an Irish citizen”.
It may well be that the plaintiffs are Irish citizens under s. 6, sub-s. 1 of the Act of 1956 because either or both of their parents were Irish citizens at the respective dates of their births, though this was not proved.
Since the defendants made no submissions to this Court on this issue and have not sought to vary the finding of the learned trial judge to which I have referred, I will assume without deciding that each of the plaintiffs is an Irish citizen.
The learned trial judge decided this issue of locus standi in favour of the plaintiffs in the following passage contained in his judgment:
“The present case is, to say the least, unusual and there is no exact precedent governing it. But it appears to me that the plaintiffs are patently sincere and serious people who have raised an important constitutional issue which affects them and thousands of others on both sides of the border. Having regard to these factors and having regard to the wording of the preamble to the Constitution and of Articles 2 and 3, it appears to me that it would be inappropriate for this court to refuse to listen to their complaints.”
Against this finding the defendants did not enter any cross-appeal or notice to vary. This Court, as it would be bound to do, raised the query as to the locus standi of the plaintiffs and the consequent jurisdiction of this Court to determine the issues raised on the appeal. Counsel for the defendants, upon that being raised, did not seek by any special submission or argument to vary the decision which had been reached by the learned trial judge.
As a general proposition it would appear to me that one would have to entertain considerable doubt as to whether any citizen would have the locus standi to challenge the constitutional validity of an act of the executive or of a statute of the Oireachtas for the specific and sole purpose of achieving an objective directly contrary to the purpose of the constitutional provision invoked. However, having regard to the evidence in this case, to the findings of fact made by the learned trial judge, and to the absence of any cross-appeal brought on behalf of the defendants, I am satisfied that the plaintiffs’ claim in this case and their appeal against the dismissal of it by the High Court should be entertained on its merits.
The relevant constitutional provisions
The relevant constitutional provisions are as follows:
Article 2
“The national territory consists of the whole island of Ireland, its islands and the territorial seas.”
Article 3
“Pending the re-integration of the national territory, and without prejudice to the right of the Parliament and Government established by this Constitution to exercise jurisdiction over the whole of that territory, the laws enacted by that Parliament shall have the like area and extent of application as the laws of Saorstát Éireann and the like extra-territorial effect.”
Article 29
“1. Ireland affirms its devotion to the ideal of peace and friendly co-operation amongst nations founded on international justice and morality.
2. Ireland affirms its adherence to the principle of the pacific settlement of international disputes by international arbitration or judicial determination.
3. Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other States.
4. 1 The executive power of the State in or in connection with its external relations shall in accordance with Article 28 of this Constitution be exercised by or on the authority of the Government.”
Article 40
1. All citizens shall, as human persons, be held equal before the law . . .
Article 40
3. 1 The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
The Anglo-Irish Agreement
ARTICLE 1
The two Governments
(a) affirm that any change in the status of Northern Ireland would only come about with the consent of a majority of the people of Northern Ireland;
(b) recognise that the present wish of a majority of the people of Northern Ireland is for no change in the status of Northern Ireland;
(c) declare that, if in the future a majority of the people of Northern Ireland clearly wish for and formally consent to the establishment of a united Ireland, they will introduce and support in the respective Parliaments legislation to give effect to that wish.
ARTICLE 2
(a) There is hereby established within the framework of the Anglo-Irish Intergovernmental Council set up after the meeting between the two Heads of Government on the 6 November 1981, an Intergovernmental Conference (hereinafter referred to as “the Conference”), concerned with Northern Ireland and with relations between the two parts of the island of Ireland, to deal, as set out in this Agreement, on a regular basis with
(i) political matters;
(ii) security and related matters;
(iii) legal matters, including the administration of justice;
(iv) the promotion of cross-border co-operation.
(b) The United Kingdom Government accepts that the Irish Government will put forward views and proposals on matters relating to Northern Ireland within the field of activity of the Conference in so far as those matters are not the responsibility of a devolved administration in Northern Ireland. In the interests of promoting peace and stability, determined efforts shall be made through the Conference to resolve any differences. The Conference will be mainly concerned with Northern Ireland, but some of the matters under consideration will involve co-operative action in both parts of the island of Ireland, and possibly also in Great Britain. Some of the proposals considered in respect of Northern Ireland may also be found to have application by the Irish Government. There is no derogation from the sovereignty of either the Irish Government or the United Kingdom Government, and each retains responsibility for the decisions and administration of government within its own jurisdiction.
ARTICLE 4
(a) In relation to matters coming within its field of activity, the Conference shall be a framework within which the Irish Government and the United Kingdom Government work together
(i) for the accommodation of the rights and identities of the two traditions which exist in Northern Ireland; and
(ii) for peace, stability and prosperity throughout the island of Ireland by promoting reconciliation, respect for human rights, co-operation against terrorism and the development of economic, social and cultural co-operation.
(b) It is the declared policy of the United Kingdom Government that responsibility in respect of certain matters within the powers of the Secretary of State for Northern Ireland should be devolved within Northern Ireland on a basis which would secure widespread acceptance throughout the community. The Irish Government support that policy.
(c) Both Governments recognise that devolution can be achieved only with the co-operation of constitutional representatives within Northern Ireland of both traditions there. The Conference shall be a framework within which the Irish Government may put forward views and proposals on the modalities of bringing about devolution in Northern Ireland, in so far as they relate to the interests of the minority community.
ARTICLE 5
(a) The Conference shall concern itself with measures to recognise and accommodate the rights and identities of the two traditions in Northern Ireland, to protect human rights and to prevent discrimination. Matters to be considered in this area include measures to foster the cultural heritage of both traditions, changes in electoral arrangements, the use of flags and emblems, the avoidance of economic and social discrimination and the advantages and disadvantages of a Bill of Rights in some form in Northern Ireland.
(b) The discussion of these matters shall be mainly concerned with Northern Ireland, but the possible application of any measures pursuant to this Article by the Irish Government in their jurisdiction shall not be excluded.
(c) If it should prove impossible to achieve and sustain devolution on a basis which secures widespread acceptance in Northern Ireland, the Conference shall be a framework within which the Irish Government may, where the interests of the minority community are significantly or especially affected, put forward views on proposals for major legislation and on major policy issues, which are within the purview
of the Northern Ireland Departments and which remain the responsibility of the Secretary of State for Northern Ireland.
Interpretation of Articles 2 and 3 of the Constitution
Barrington J. in the course of his judgment identified from previous decisions what appeared to him to be two conflicting interpretations of Articles 2 and 3 of the Constitution. He concluded that the impugned provisions of the Agreement were not contrary to either of these interpretations, and that accordingly it was not necessary for him to decide between them.
The first interpretation mentioned by the learned trial judge was derived by him from the decision of this Court on the reference of the Criminal Law (Jurisdiction) Bill, 1975 [1977] I.R. 129, and he quotes from that decision the following paragraph at p. 584:
“One of the theories held in 1937 by a substantial number of citizens was that a nation, as distinct from a State, had rights: that the Irish people living in what is now called the Republic of Ireland and in Northern Ireland together form the Irish nation: that a nation has a right to unity of territory in some form be it as a unitary or federal state; and that the Government of Ireland Act, 1920, though legally binding was a violation of that national right to unity which was superior to positive law.
This national claim to unity exists not in the legal but in the political order and is one of the rights which are envisaged in Article 2; it is expressly saved by Article 3 which states that the area to which the laws enacted by the parliament established by the Constitution apply.”
From that decision he concluded that the interpretation of the Articles was as follows: Article 2 contained a claim to the national territory of the whole of the island of Ireland, its islands and the territorial seas as a claim in the political order and not as a claim of legal right. Article 3 provided that, pending the re-integration of the national territory, the Parliament established by the Constitution could only enact laws with a like area and extent of application as the laws of Saorstát Éireann and the like extraterritorial effect, and therefore could not enact laws with an area of application in the counties of Northern Ireland.
Counsel for both parties submitted in the High Court, and repeated those submissions in this Court, that Article 2 constituted a claim of a legal right, but that, pursuant to Article 3, the Parliament established by the Constitution was entitled at any time it wished to enact laws applicable in the counties of Northern Ireland, though pending the re-integration of the national territory, laws enacted which did not otherwise provide are deemed to have the restricted area and extent mentioned in the article.
In support of this submission they relied on the dictum of O’Keeffe P. in Boland v. An Taoiseach [1974] I.R. 338, and on the decision of O’Byrne J. in The People v. Ruttledge decided in 1947 but reported at [1978] I.R. 376.

I am not satisfied that the statement that “this national claim to unity exists not in the legal but the political order and is one of the rights which are envisaged in Article 2”, necessarily means that the claim to the entire national territory is not a claim of legal right.
The phrase occurs in a decision tracing the historical, political and social background to the Constitution, and seems more appropriately understood as a reference to the origin of the claim than to its nature. If, however, it is so construed, I would after careful consideration feel obliged to decline to follow it. I do not accept the contention that Article 3 is to be construed as permitting, during the period pending the re-integration of the national territory, the enactment of laws applicable in the counties of Northern Ireland.
With Articles 2 and 3 of the Constitution should be read the preamble, and I am satisfied that the true interpretation of these constitutional provisions is as follows:
1. The re-integration of the national territory is a constitutional imperative (cf. Hederman J. in Russell v. Fanning [1988] I.R. 505).
2. Article 2 of the Constitution consists of a declaration of the extent of the national territory as a claim of legal right.
3. Article 3 of the Constitution prohibits, pending the re-integration of the national territory, the enactment of laws with any greater area or extent of application or extra-territorial effect than the laws of Saorstát Éireann and this prohibits the enactment of laws applicable in the counties of Northern Ireland.
4. The restriction imposed by Article 3 pending the re-integration of the national territory in no way derogates from the claim as a legal right to the entire national territory.
The provision in Article 3 of the Constitution contained in the words “and without prejudice to the right of the Parliament and Government established by this Constitution to exercise jurisdiction over the whole of that territory” is an express denial and disclaimer made to the community of nations of acquiescence to any claim that, pending the re-integration of the national territory, the frontier at present existing between the State and Northern Ireland is or can be accepted as conclusive of the matter or that there can be any prescriptive title thereby created and an assertion that there can be no estoppel created by the restriction in Article 3 on the application of the laws of the State in Northern Ireland. This is of course quite distinct from the extra-territorial effect of the laws of the State in respect of matters occurring outside the State for which persons are made answerable in the courts of the State.
The grounds of the plaintiffs’ claim
Barrington J. has correctly identified the three main submissions on which the plaintiffs’ claim rested in the High Court and they remain the same on the appeal to this Court.
“1. That the Agreement recognising the legitimacy of the present constitutional arrangements in respect of Northern Ireland, violates Articles 2 and 3 of the Constitution;
2. that, in as much as the Agreement establishes an intergovernmental conference and secretariat, it fetters the power of the Government to conduct the external affairs and powers of the state under Articles 28 and 29 of the Constitution.
3. that the State may not enter into a treaty whereby it commits itself to have regard to one section of the Irish nation (i.e. the “minority” population of Northern Ireland) and to disregard the interests of a section of the Irish people, namely, the “majority” community in Northern Ireland.”
In regard to the first of these grounds the plaintiffs relied, in addition to the terms of the Agreement and of the Constitution, upon submissions that the terms of the Agreement could in international law constitute an estoppel preventing a subsequent assertion of right to the re-integration of the national territory and also on a submission that the fact that the Agreement did not contain a fixed time for its duration added to the alleged constitutional inconsistency.
The decision
With regard to these three main grounds of appeal I have come to the following conclusions.
1. Inconsistency of the Agreement with Articles 2 and 3 of the Constitution
The main source of this submission was article 1 of the Anglo-Irish Agreement. In the course of his judgment Barrington J., after considering the details of that and other provisions of the Agreement, reached the following conclusion:
“It appears to me that in article 1 of the agreement the two Governments merely recognise the situation on the ground in Northern Ireland, (paragraph (b)), form a political judgment about the likely course of future events, (paragraph (a)), and state what their policy will be should events evolve in a particular way (paragraph (c)).”
I find myself in agreement with this economical but precise analysis of the provisions of article 1. The learned trial judge then concluded that on any interpretation of the provisions of Articles 2 and 3 of the Constitution, these provisions of the Anglo-Irish Agreement were not in any way inconsistent with either of those two Articles. With that conclusion I am in complete agreement. There can be no doubt but that the only reasonable interpretation of article 1, taken in conjunction with the denial of derogation from sovereignty contained in article 2, para. (b), of the Anglo-Irish Agreement is that it constitutes a recognition of the de facto situation in Northern Ireland but does so expressly without abandoning the claim to the re-integration of the national territory. These are essential ingredients of the constitutional provisions in Articles 2 and 3.
This interpretation is not affected by the provisions of article 4, para. (c) or article 5, para. (c) nor are either of these two articles capable of any separate inconsistent interpretation. In so far as they accept the concept of change in thede facto status of Northern Ireland as being something that would require the consent of the majority of the people of Northern Ireland these articles of the Agreement seem to me to be compatible with the obligations undertaken by the State in Article 29, ss. 1 and 2 of the Constitution, whereby Ireland affirms its devotion to the ideal of peace and friendly co-operation and its adherence to the principles of the pacific settlement of international disputes.
The conclusion that these articles of the Anglo-Irish Agreement do not constitute any form of abandonment of the claim of right to the re-integration of the national territory but constitute instead a realistic recognition of the de factosituation in Northern Ireland leads to the consequential conclusion that the Anglo-Irish Agreement cannot be impugned on the basis of any supposed estoppel arising to defeat the constitutional claim to re-integration, nor on the basis of any indefinite duration in the Agreement.
2. Fettering of the power of Government to conduct external relations in breach of Article 29 of the Constitution
The submission made on this issue was that the terms of the Anglo-Irish Agreement were of similar character to the terms of the Single European Act which the decision of this Court in Crotty v. An Taoiseach [1987] I.R. 713 held to be inconsistent with the provisions of Article 29 of the Constitution.
I am satisfied that this analogy is quite false. The Anglo-Irish Agreement is an agreement reached between two governments, both of whom have an acknowledged concern in relation to the affairs of Northern Ireland. It acknowledges that the Government of Ireland may make representations, put forward proposals, and try to influence the evolution of peace and order in Northern Ireland.
The frameworks contained in the Agreement and structures created by it provide methods of carrying out these activities, it can be argued, in the manner most likely to make them effective and acceptable, namely, constant mutual discussion. The Government of Ireland at any time carrying out the functions which have been agreed under the Anglo-Irish Agreement is entirely free to do so in the manner in which it, and it alone, thinks most conducive to the achieving of the aims to which it is committed. A procedure which is likely to lead to peaceable and friendly co-operation at any given time must surely be consistent with the constitutional position of a state that affirms its devotion not only to the ideal of peace and friendly co-operation but to that ideal founded on international justice and morality.
The basis of the decision of this Court in Crotty v. An Taoiseach [1987] I.R. 713 was that the terms of the Single European Act could oblige the Government in carrying out the foreign policy of the State to make the national interests of the State, to a greater or lesser extent, subservient to the national interests of other member states. I have no doubt that there is a vast and determining difference between the provisions of this Agreement and the provisions of the Single European Act as interpreted by this Court in Crotty v. An Taoiseach [1987] I.R. 713.
3. Disregard of the interests of the “majority” community in Northern Ireland
The submission made on the appeal in regard to this matter was that the provisions of the Anglo-Irish Agreement contained in article 4, para. (c) and article 5, para. (c) which expressly recognised the conference as a framework within which the Irish Government might put forward views and proposals on bringing about devolution in Northern Ireland, in so far as they relate to the interests of the minority community, constituted a breach of Article 40, s. 1 of the Constitution. The Anglo-Irish Agreement is not “a law” within the meaning of that term contained in Article 40, s. 1 of the Constitution. A provision for the capacity of the Irish Government in regard to possible devolution in Northern Ireland to put forward views and proposals as to the modalities of bringing that about could not be the holding of any person equal or unequal before the “law”.
In the alternative, the submission was made that the provisions of this subclause of the Agreement were inconsistent with Article 40, s. 3, sub-s. 1 of the Constitution. I am satisfied that they are not. The mere fact that there is an express acknowledgment in the event of discussions leading or intended to lead to devolution in Northern Ireland of the right of the Irish Government to bring forward views and proposals in so far as they relate to the interests of the minority community in Northern Ireland is in no way an abandonment of concern by the Irish Government for the majority community in Northern Ireland.
It does not seem to me that there are any grounds for suggesting that there has been an invidious or any discrimination between the two communities in Northern Ireland by virtue of the terms of the Anglo-Irish Agreement.
I am satisfied, therefore, that all the grounds of the appeal brought by the plaintiffs must fail. I come to that conclusion from an analysis of each of the submissions that have been made, both in the High Court and in this Court. I would also point out, however, that there is, looking at the Anglo-Irish Agreement in its totality and looking at the entire scheme and thrust of the Constitution of Ireland a high improbability that a clear attempt to resolve the position with regard to the re-integration of the national territory and the position of Northern Ireland by a process of consultation, discussion and reasoned argument structured by constant communication between servants of each of the two states concerned could ever be inconsistent with a Constitution devoted to the ideals of ordered, peaceful international relations. I would dismiss this appeal.

Walsh J.
I agree.

Griffin J.
I agree.

Hederman J.
I agree.

McCarthy J.
Locus standi
The trial judge concluded that each of the plaintiffs was a citizen of Ireland. As citizens they are bound by the provisions of Article 9, s. 2 of the Constitution which prescribes that fidelity to the nation and loyalty to the State are fundamental political duties of all citizens. Such fidelity and loyalty do not prohibit or restrict disagreement with the content of the Constitution nor with the actions of government. There are few citizens who have made a public declaration to uphold the Constitution which contains the constitutional imperative in its preamble that the unity of our country be restored and Article 2 which defines the national territory as the whole island of Ireland, its islands and the territorial seas. The plaintiffs uphold the union of Northern Ireland with Britain, they reject Article 2 but claim that the Anglo-Irish Agreement is in conflict with it, is therefore invalid having regard to the provisions of the Constitution and thereby call it in aid to achieve their objective which is the maintenance of partition and of the union with Britain. They approbate and reprobate.
There is a distinction between an objective and the means of achieving it. One does not look to the objective of a particular legal submission; one looks to the submission itself. One does not determine locus standi by motive but rather by objective assessment of rights and the means of protecting them. In Cahill v. Sutton [1980] I.R. 269 the plaintiff who invoked constitutional protection was denied the right to do so because the type of protection invoked would not, on the facts, have done her any good. It would have done her a great deal of good if the result was to condemn the section of the statute which defeated her claim, but the argument of constitutional injustice did not apply to her situation. Here the argument advanced by the plaintiffs does apply to the facts of their case, as Irish and as British citizens living in Northern Ireland, and in such case, their motive is irrelevant. It is commonplace for litigants to invoke the law for the worst of motives; many pleas of statutory defence may have a most venal purpose but that does not affect the validity of any such defence. The plaintiffs appear to be contending that, being made Irish citizens by this State, disapproving of the constitutional claim in Article 2, being concerned as to the effect of the Anglo-Irish Agreement on them as residents of Northern Ireland, they are entitled to demand of this State that, as the People make the rules, they must abide by them, whatever be the plaintiffs’ motive or objective.
Does this right, however, extend to a challenge to the making of a treaty by the Government pursuant to Article 29? In Kostan v. Ireland [1978] I.L.R.M. 12 a foreign captain of a fishery vessel successfully challenged the constitutionality of certain provisions of the Fisheries (Consolidation) Act, 1959, under which he was prosecuted for unlawful fishing. In Crotty v. An Taoiseach [1987] I.R. 713 a successful challenge was made by an undoubted citizen against the ratification of part of the Single European Act. It seems unlikely that a non-citizen would have been allowed to maintain such proceedings. The citizens of the United Kingdom in Britain have a very real interest in the Anglo-Irish Agreement; is each one of them to be heard to challenge its validity as being repugnant to the Constitution of Ireland? I think not. Might such a claim be sustained at the suit of a person living in Northern Ireland but born outside of Ireland? I think not. The plaintiffs’ right to sue, if right there be, must depend upon citizenship. In The State (Nicolaou) v. An Bord Uchtála [1966] I.R. 567 Teevan J., said at p. 600:
“Circumstances may exist by reason of which it would be no more than impertinent for a non-citizen to attack the constitutionality of one of our statutes, or by reason of which it would otherwise be necessary or prudent to take the point.”
In the Supreme Court, Walsh J., at p. 645 said:
“This Court expressly reserves for another and more appropriate case consideration of the effect of non-citizenship upon the interpretation of the Articles in question and also the right of a non-citizen to challenge the validity of an Act of the Oireachtas having regard to the provisions of the Constitution.”
In a case such as the present, in my judgment, a non-citizen does not have thelocus standi to maintain a challenge of the kind propounded here against the constitutional validity of the Anglo-Irish Agreement. The issue of locus standi was raised in the defence and contested at the trial. The statement of claim does not allege that either plaintiff is a citizen of Ireland and neither plaintiff testified as to being a citizen or having made the prescribed declaration pursuant to s. 7, sub-s. 1 of the Irish Nationality and Citizenship Act, 1956. In my view, the plaintiffs were not shown to be Irish citizens although Barrington J., in his judgment, stated that both plaintiffs were born in Ireland and “are therefore in contemplation of Irish law citizens of Ireland.” No appeal or notice to vary was brought in respect of this finding. Because of this and the importance of the issue raised, whilst I am not satisfied that the plaintiffs have locus standi to maintain this action, I think it right to determine the main issue in the case.
The constitutional issue
I have read the judgment delivered by the Chief Justice and I wholly agree with the conclusion that the plaintiffs have failed in their challenge to the Anglo-Irish Agreement. I would wish to state my firm opinion that, whatever the political background to the wording of Article 2 of the Constitution, it is an unequivocal claim as of legal right that the national territory consists of the whole island of Ireland, its islands and the territorial seas (see O’Keeffe P. in Boland v. An Taoiseach [1974] I.R. 338 at p. 363).
I would dismiss the appeal.

 

Donegal Fuel and Supply v. Londonderry Harbour Commissioners

[1994] IR 24

H.C.

Costello J.
6th May 1992

Carrickarory Pier situated on the Donegal side of, and close to the mouth of, Lough Foyle, was built in the middle of the last century by the grand jury of the county of Donegal. Later it was vested in the Londonderry Port and Harbour Commissioners, a vesting later confirmed by statute enacted in 1882. Mr. Alan Moyne, Mr. Henry Thompson and a firm called McCauley Brothers Ltd. claimed, in proceedings instituted in 1982, that they had distributed coal in the Inishowen peninsula for a number of years, that for this purpose they had imported coal by using the pier at Carrickarory, and that in breach of statutory duty the harbour commissioners had closed the pier thereby causing them financial loss. What had happened was this. The harbour master of the port of Londonderry had given public notice in February, 1977, that the pier was to be closed for the discharging and loading of vessels; in August, 1980, it was announced that substantial repairs having been carried out the pier would be reopened but only for a limited period and for the discharging and loading of vessels which did not exceed 200 feet in length. After the pleadings were closed in the 1982 proceedings, agreed questions of law were tried by me as a preliminary issue. On the 6th June, 1986, I gave my judgment ( Moyne v. Londonderry Port and Harbour Commissioners [1986] I.R. 299) in which I held that the harbour commissioners were under a statutory duty to keep the pier open, that in the absence of validly adopted bye-laws the harbour master could not permanently restrict its use, and that if any of the plaintiffs in those proceedings had been deprived of an opportunity to use the pier and had thereby suffered loss they were entitled to damages.
Thereafter a strange paralysis seemed to strike the action and nothing happened to it for nearly five years. Finally, the plaintiffs in those proceedings had the action re-entered and having heard evidence on the point I concluded, on the 6th April, 1991, that the harbour commissioners had been in breach of statutory duty to each of the plaintiffs and that each were entitled to damages for loss sustained by them from the 1st January, 1978. Damages have not yet been assessed, disputes on discovery having delayed the re-listing of this action.
On the 30th July, 1991, a letter was written to the harbour commissioners on behalf of Mr. Harry Thompson, Mr. Brian Thompson, and the Donegal Fuel and Supply Company Ltd. (“the applicants”). The letter claimed that all three were coal importers who had formerly used the pier at Carrickarory, that because it had not been repaired they had been unable to use it, that the harbour commissioners were under a statutory duty to repair it and that if they failed to carry out this duty within a specified time an application to the court for an order of mandamus would be brought.
Unknown to the applicants, on the 20th June, 1991, (pursuant to statutory powers which I will examine later) the Department of the Environment of Northern Ireland had made an order empowering the harbour commissioners to discontinue or abandon the use of any part of the port of Londonderry and its harbour undertaking. Pursuant to the power thus conferred on them, the harbour commissioners resolved to abandon the repair and maintenance of the pier at Carrickarory and gave public notice of this fact in the Derry Journal of the 12th September, 1991. But for reasons to be explained later a resolution closing the pier was not the only action taken by the harbour commissioners. They decided to make bye-laws under statutory provisions contained in s. 83 of the Harbours, Docks, and Piers, Act, 1847, and requested the Minister for the Marine in this jurisdiction, pursuant to s. 48 of the Londonderry Port and Harbour Act, 1882, to approve them. They gave notice in the Donegal Democrat of the 12th September, 1991, of their intention to apply to the Minister to allow the bye-laws and in their notice indicated that the bye-laws if approved would permit the use of the pier only for vessels of less than 16 metres in length. The notice also indicated that objections to the proposed bye-laws should be lodged with the Minister and would be heard by him in a manner to be directed by him.
In the light of these developments the applicants instituted two separate sets of proceedings. On the 18th October, 1991, they appliedex parte and obtained leave to institute proceedings by way of judicial review in which they sought an order of mandamus ordering the harbour commissioners to repair the pier at Carrickarory. On the 29th November, 1991, they applied ex parte and obtained leave to apply by way of judicial review for an order of prohibition prohibiting the Minister from approving the bye-laws. The harbour commissioners were joined as notice parties in the prohibition proceedings. I heard both proceedings together as the issues involved were closely interlinked. To understand them I must firstly refer to the pre-1922 statutes of the United Kingdom parliament relating to the harbour commissioners and the pier at Carrickarory; then to the post-1922 legislation enacted by the parliament of Northern Ireland and the orders made thereunder; and finally to Article 73 of the Constitution of 1922 by which it is claimed the pre-1922 statutes became part of the law of the Irish Free State and thus, under the Constitution of 1937, part of the present statutory law of Ireland. I will then be in a position to explain the issues which fall for consideration and give my conclusions on them.
The law
(1) Pre-1922 statutes
(a) The incorporation and the constitution of the harbour commissioners
By s. 16 of the Londonderry Port and Harbour Act, 1854 (“the Act of 1854”), the Londonderry port and harbour commissioners for the time being appointed under the provisions of the Act were declared to be a corporation with perpetual succession under the name “The Londonderry Port and Harbour Commissioners” and were the conservators of the port and harbour referred to in the Act, subject to its provisions. Sections 17 to 19 contained detailed particulars relating to the qualifications of the commissioners and of the electors by whom commissioners were to be elected – briefly speaking, the commissioners were to be residents and ratepayers in Londonderry and owners of vessels of a specified size, and likewise the electors were to be residents and ratepayers and owners of vessels of a specified size. Commissioners were to be elected in the manner prescribed in the Commissioners Clauses Act, 1847. They were to number 14 (section 20).
The Act of 1854, was amended and extended by the Londonderry Port and Harbour Acts, 1882, 1919 and 1920 (respectively the Acts of 1882, 1919 and 1920). The constitution of the harbour commissioners was radically altered by the Act of 1920 (ss. 6 to 23), as was the qualification of the electors and of the commissioners. The number of commissioners was increased to 17, the mayor of Londonderry being ex officio a member. As a result, in 1922 the persons on whom corporate status was conferred by the Act of 1854, were those elected in accordance with the Act of 1920.
(b) The powers and duties of the harbour commissioners
The Act of 1854 not only declared the harbour commissioners to be the conservators of the port but authorised them to make and maintain works which were detailed in it (section 28). They were empowered to improve the channels of the port for the promotion of navigation and to do everything necessary to render it safe and commodious (section 54). The words “harbour, dock, or pier” were used throughout the Act, as was the word “port”, and these were defined as applying to “the Lough and river, port and harbour of Lough Foyle and to the quays, docks and works which the commissioners were authorised by the Act to construct”. An obligation to pay rates to the harbour commissioners on every vessel arriving at the port was imposed by s. 62 (the amount being specified) and an obligation to pay rates levied by the commissioners on goods shipped and unshipped in the port was also imposed (section 64). The monies raised by rates was to be applied, inter alia, to executing and maintaining the works authorised by the Act (section 89). Amending Acts authorised the execution by the harbour commissioners of further works as specified in them.
Section 12 of the Act of 1854 provided that the provisions of the Harbours, Docks and Piers Clauses Acts, 1847 (“the Act of 1847”) were to be incorporated with the Act of 1854. Section 33 of the Act of 1847 provided that upon the payment of rates payable by any special Act which incorporated the Act of 1847 the harbour, dock and pier should be open to all persons for the shipping and unshipping of goods and the embarking and landing of passengers. This is the statutory provision on which the applicants strongly rely.
I was required in Moyne v. Londonderry Port and Harbour Commissioners [1986] I.R. 299 to construe the statutory duty of the harbour commissioners under these pre-1922 statutes to keep their undertaking or in particular the pier at Carrickarory in repair. I concluded that they were under a duty to maintain works which they had constructed for the use of the public and that this imposed an implied obligation to repair them. I went on, however, to point out that this duty must be read in conjunction with the rest of the provisions of the special Acts and that, whilst the harbour commissioners could not close down the whole of their undertaking without parliamentary sanction, they could restrict the use of any part of their undertaking by means of bye-laws made and confirmed under s. 47 of the Act of 1882 (see pp. 308-309 of the report).
(c) The pier at Carrickarory
The grand jury of the county of Donegal had transferred the pier at Carrickarory to the harbour commissioners. Doubts apparently arose about the efficacy of the transfer and it was provided by s. 18 of the Act of 1882 that the transfer was confirmed and that the pier and its management and maintenance were to be vested in the harbour commissioners as part of their undertaking “as fully and effectually and with the same powers, authorities, privileges, and obligations as if the said pier had been constructed by them under the powers of their Acts”. This meant that the statutory obligation to repair to which I had referred applied to the pier at Carrickarory as it did to other parts of the harbour commissioners’ undertaking.
(d) The power to make bye-laws
Section 83 of the Act of 1847 conferred power to make bye-laws on the harbour commissioners, a power extended by s. 26 of the Act of 1854 and s. 47 of the Act of 1882. It is agreed that the power which is relevant for the purposes of the present proceedings is that contained in s. 83 of the Act of 1847, which enabled the harbour commissioners to make bye-laws “for regulating the use of the harbour, dock or pier”. Procedures to be followed for adopting bye-laws were contained in s. 48 of the Act of 1882. This provided, inter alia, that:
“No bye-law shall take effect until it is allowed by the Board of Trade, the Board of Trade being at liberty to allow, alter or disallow the same, as they may think proper.”
The section went on to provide that no bye-laws could be allowed unless notice of intention to apply for allowance had been given by public advertisement, that copies of proposed bye-laws should be available for public inspection, and that “Any person desiring to object to any such bye-laws, on giving to the Commissioners notice in writing of the nature of the objection ten days before the making of the application for the allowance thereof, may be heard thereon in such manner as the Board of Trade shall direct.”
It will be recalled that in s. 1 of the Act of 1854, the words “harbour, dock, or pier” and the word “port” were defined as extending and applying to the lough, river, port and harbour of Lough Foyle and to the quays, docks and works authorised by the Act. As a result, the power to make bye-laws is to be construed as a power for regulating the use of the whole or any part of the Lough Foyle or the harbour at Lough Foyle, and the whole or any part of any of the piers and quays vested in the harbour commissioners.
This pre-1922 legislation has been extensively amended by post-1922 legislation enacted in Northern Ireland to which I must now refer.
(2) Post-1922 Northern Ireland legislation and ministerial orders
Delegated power to legislate by ministerial order in relation to harbours was conferred on the Ministry of Commerce by the Harbours Act (Northern Ireland), 1970. The Ministry could by order make provision for achieving a wide range of objects set out in the first schedule to the Act, including orders conferring functions on harbour authorities, the winding-up or dissolution of harbour authorities, the reconstitution of harbour authorities, the alteration of the constitution of harbour authorities, and orders amending or repealing statutory provisions of local application affecting a harbour. Pursuant to these powers a radical alteration in the constitution of the harbour commissioners was effected by order of the 17th December, 1976 (made by the Department of Commerce to whom the power had been transferred). Existing commissioners were required to vacate office on the day the order came into operation and thereafter the harbour commissioners in lieu of being elected were to be appointed by the head of the Department of Commerce. Since that time commissioners have been appointed under the order of 1976 – not elected under the Act of 1920.
A further ministerial order was made on the 21st June, 1991. It provided, inter alia, that the harbour commissioners, notwithstanding any provision to the contrary contained in the Acts relating to them, were empowered to discontinue or abandon “the maintenance and repair of any part of the port, harbour facilities, or ancillary works”.Pursuant to this power the harbour commissioners made a decision on the 11th September, 1991, to abandon the repair and maintenance of the pier at Carrickarory, a decision which was advertised in the Deny Journal on the 17th September, 1991, to which I have already referred.
Thus it is clear that under the law of Northern Ireland the harbour commissioners may abandon the maintenance of the pier at Carrickarory. If this is the law which this court is to apply the applicants’ case must therefore fail. The applicants say that the pre-1922 statutes were carried over into the law of the Irish Free State by Article 73 of the Constitution of 1922 and that the law which this court is to apply is to be found in those statutes. The harbour commissioners contend otherwise and the resolution of this dispute is one of the principal issues in these proceedings.
The harbour commissioners undoubtedly found themselves in a difficult legal situation. If they were right about the operation of Article 73 then they were under no obligation to keep the pier open. But what if an Irish court decided otherwise? They concluded that they should guard against this eventuality and make bye-laws which would restrict the use of the pier under the pre-1922 statutes. On the assumption that s. 48 of the Act of 1882 remained part of the law of the State (although repealed as regards Northern Ireland) they adopted bye-laws on the 28th October, 1991, which restricted the use of the pier and presented them to the Minister of the Marine of the Irish Government for his approval. If their main contention was upheld by the Irish courts, then they have the benefit of the Northern Ireland ministerial order of the 21st June, 1991. If it was not, then, they would get the benefit of the bye-laws, if approved by the Minister.
(3) The Constitution of 1922
The pre-1922 statutes to which I have referred can only be part of the law of the State by the operation of Article 73 of the Constitution of 1922. This Article provides:
“Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in the Irish Free State (Saorstát Éireann ) at the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them have been repealed or amended by enactment of the Oireachtas.”

If this Article had the effect of carrying over into the law of the Irish Free State the pre-1922 statutes, then their provisions relating to the adoption of bye-laws were affected by the Ministers and Secretaries Act, 1924, which assigned the functions of the Board of Trade to the Department of Industry and Commerce (section 1, para. (vii)). (Later these were transferred to the Minister for the Marine.) If it did not, then the mandamus proceedings must fail, as the harbour commissioners are under no statutory duty to repair and keep open the pier at Carrickarory. And the prohibition proceedings must also fail because the Minister for the Marine has no statutory functions in relation to bye-laws made by the harbour commissioners.
I will now examine in greater detail the two sets of proceedings before the court.
The mandamus proceedings
The applicants’ case is that s. 33 of the Act of 1847 is part of the law of the State, that under that section the Londonderry Port and Harbour Commissioners are obliged to keep the pier at Carrickarory in good and adequate repair, that since 1980 they have failed to do so, that they have evinced an intention to discontinue the repair and maintenance of the pier by virtue of Article 6 of the Order of 1991, that this statutory instrument has no force or effect within the State and does not relieve the harbour commissioners of the statutory duty under s. 33 of the Act of 1847. Their claim is that the court should order the harbour commissioners to carry out that duty.
The harbour commissioners submit:
(1) that the court has no jurisdiction to order the Londonderry Port and Harbour Commissioners to carry out a statutory duty as they are incorporated outside the State;
(2) that the pre-1922 statutes are not part of the law of the State and that even if there had been a statutory duty to maintain the pier that duty terminated by the Order of 1991, made under the law applicable to the pier;
(3) that even if the pre-1922 statutes are part of the law of the State, the court in the exercise of its discretion should not make an order of mandamus because the regulation of the pier is to be determined by the bye-laws which it is proposed will be adopted by the Minister.
It will, I think, be helpful if I deal firstly with the constitutional issues arising under Article 73.
(a) The Article 73 issue
It seems to me that this issue can be resolved by considering the correct answer to the question, “Could the Oireachtas established by the Constitution of 1922 have validly enacted, in 1923 or later, the pre-1922 statutes?” or, to expand the question a little, “could the legislature of the Irish Free State in 1923 have passed a law establishing in Northern Ireland a statutory corporation with the powers, duties and functions contained in the pre-1922 statutes and elected in the manner provided for in those statutes?” If the Oireachtas could not validly have legislated in this way, then it would follow that the pre-1922 statutes were not carried into the law of the Irish Free State by Article 73 because that Article in its application to statute law must refer to statutes which could be validly enacted by the Oireachtas – if the Oireachtas could not enact a statute then it could not repeal or amend the statute as the Article contemplates the Oireachtas doing.
Whether or not the Oireachtas, as a member of the British Commonwealth had power to legislate with extra-territorial effect was for a time a matter of controversy until it was finally authoritatively settled that it could do so. But that is a legislative power to declare acts committed outside the State to be contrary to the domestic law of the State and to confer jurisdiction on domestic courts to try offences committed extraterritorially – it is not a power to legislate to establish a statutory corporation in another state and confer on it powers, duties and functions. The legislative powers of the Oireachtas were to be found in Article 12 of the Constitution of 1922, which provided for the establishment of the Oireachtas and declared that “The sole and exclusive power of making laws for the peace, order and good government of the Irish Free State (Saorstát Éireann ) is vested in the Oireachtas”. I think that the power thus conferred should be construed in the light of the prevailing principles of public international law. The parliament of the Irish Free State was the parliament of an independent sovereign state but like the parliaments of other sovereign states its legislative powers were circumscribed by international law. The sovereignty and equality of states are two basic concepts of international law, concepts which mean (1) that each sovereign state has jurisdiction prima facieexclusively over a territory and the permanent population living there, and (2) that there is a duty imposed on each sovereign state of non-intervention in the area of the exclusive jurisdiction of other states (see Brownlie, Principles of International Law (3rd ed.) at p. 228, which states principles which were well established and commonplace at the date of the establishment of the Irish Free State). I construe, therefore, the legislative powers conferred by Article 12 of the Constitution of 1922 as meaning that the power of the Oireachtas to make laws for the peace, order and good government of the Irish Free State did not include a power to legislate for matters which were within the exclusive jurisdiction of other sovereign states. It is (and was in 1922) another well established principle that corporations are domiciled in the state of their incorporation and it seems to me that to enact a law to incorporate a corporation in another state and to enact statutory provisions as to how its corporators are to be elected and the functions and duties it is to perform in another state amounts to an infringement of the principles of international law and was outside the legislative powers conferred on the Oireachtas by the Constitution. I conclude therefore that the Oireachtas established by the Constitution of 1922 could not have validly enacted the pre-1922 statutes.
But a question arises as to whether the Oireachtas might have been empowered to enact parts of the pre-1922 statutes. Certainly parliament in 1922 could have regulated the manner in which foreign corporations carried on business or provided services in the Irish Free State and, as the pier at Carrickarory was situated in the Irish Free State, could not parliament have legislated in respect of operations carried on at the pier by a foreign corporation? I think it could have done so. But I also think that it does not follow that it could have enacted the provisions of the pre-1922 statutes which imposed duties on the harbour commissioners to repair the pier and keep it open. The financial provisions of the pre-1922 statutes could not have been enacted by the Oireachtas as they imposed taxes to be collected in a foreign state and to do so would have constituted and amounted to an unjustifiable interference in the internal affairs of the United Kingdom. The provisions of the pre-1922 statutes imposing duties to repair the pier at Carrickarory and keep it open were so closely linked to those financial provisions as to make it impossible to sever those duties from those provisions and so the sections on which the applicants herein rely could not have been enacted by the Oireachtas and so were not carried over by Article 73.
The views which I have just expressed are not affected by my decision and that of the Supreme Court in Waterford Harbour Commissioners v. British Railways Board [1979] I.L.R.M. 296. The legislative
provisions which were considered in that case were very different to those in the instant case and it was accepted by the defendant’s counsel in the earlier proceedings that they had become part of the law of the Irish Free State by virtue of Article 73 so that the point now being considered did not arise in the earlier case. Nor are they affected by the fact that the point now taken by the Londonderry Port and Harbour Commissioners was not taken by them in the earlier proceedings to which I have referred and which are presently pending before this court. Those proceedings proceeded on the basis that the statutory duty being considered was one imposed by the pre-1922 statutes which became part of Irish law. But I do not think that the harbour commissioners are estopped in anyway in these present proceedings from arguing the point now raised. And I do not think that the conclusions which I have now reached preclude me from assessing damages in the earlier proceedings. The Irish courts have jurisdiction to entertain a claim for damages for breach of a duty imposed by a foreign statute on a foreign corporation when the breach occurs in this State and when the foreign corporation submits to jurisdiction as happened in the earlier case. The principles on which damages for breach of statutory duty are awarded are the same under Irish law as under the law of the United Kingdom and so my conclusion that the plaintiffs in the earlier proceedings are entitled to damages is unaffected by the fact that their entitlement arises under the law of Northern Ireland rather than the law of the State. In assessing damages I will, in the light of this judgment, have to consider whether the measure of damages is affected by the law of Northern Ireland, including the limit, if any, imposed by the ministerial order of 1991 which relieved the harbour commissioners for liability to maintain the pier.
The applicants’ claim for an order of mandamus must therefore fail as the statutory duty which it is sought to enforce does not exist in Irish law.
(b) Other issues
As the parties may require my conclusions on all the issues that have arisen I should express them briefly. In my opinion, even if the pre-1922 statutes became part of the law of the Irish Free State, the applicants’ claims would fail for the following reasons.
(1) The pre-1922 statutes have not been amended by the Oireachtas (except in matters relating to the authority to approve bye-laws). This means that under the law of the State, the harbour commissioners for the time being appointed under the pre-1922 statutes are deemed to be a corporation having the name “The Londonderry Port and Harbour Commissioners” (s. 16 of the Act of 1854). Under the pre-1922 statutes the persons who are to act as harbour commissioners must be elected according to the provisions of the Londonderry Port and Harbour Act, 1920. But no harbour commissioners have been so elected and so there are no persons elected on whom corporate status can be conferred by s. 16 of the Act of 1854. This means that there is no statutory corporation in existence under the statutes carried over into Irish law by Article 73 and no statutory body under that law against whom an order of mandamus can be made.
The harbour commissioners have not, of course, been conjured out of existence by some form of legal legerdemain – there is a statutory corporation in existence domiciled in Northern Ireland and operating under the laws of Northern Ireland. That corporation owns the pier at Carrickarory. It can sue and be sued in the Irish courts. This is because under our rules of private international law the Irish courts will, when a conflict of laws occurs, apply the law of the domicile of a foreign corporation – in this case the law of Northern Ireland. Under that law the harbour commissioners are a corporation, but if that law is to be applied by the Irish courts, no order of mandamus could issue against them because under the law of Northern Ireland they are under no duty to repair the pier.
(2) In the further alternative, the Irish courts have no jurisdiction to order a foreign corporation domiciled in a foreign state to carry out a statutory duty, even if it is one imposed by Irish law. It is true that the harbour commissioners have appeared in these proceedings and that by applying to the Minister to approve the draft bye-laws they may have impliedly recognised the statutory power of the Minister to approve the bye-laws. But neither the entry of the appearance nor recognition of the Minister’s power can confer jurisdiction on the court to make an order of mandamus directed towards a foreign corporation domiciled in a foreign state.
(3) In the further alternative, if the pre-1922 statutes are part of Irish law and if the court has jurisdiction to make an order of mandamus against the harbour commissioners, I do not think that it should exercise its discretion in the applicants’ favour in this case at the present time.
Assuming that s. 48 of the Act of 1882 is part of Irish law and that the Minister has a statutory power to approve the draft bye-laws, I am of the opinion (for reasons to be given later) that the draft bye-laws in this case cannot be impugned as being unreasonable and outside the powers of the harbour commissioners to adopt. This means that the harbour commissioners’ statutory duties to repair and keep open the pier at Carrickarory are likely to be affected by bye-laws approved by the Minister. In such circumstances the court should not make an order until the harbour commissioners’ statutory obligations in relation to the pier have been established by the Minister’s decision.
I will dismiss the claim for an order of mandamus.
The prohibition proceedings
For reasons already given the prohibition proceedings must fail because the pre-1922 statutes did not form part of the law of the Irish Free State. This means that the Minister has no function in relation to the bye-laws which the harbour commissioners may wish to adopt – the making of bye-laws is exclusively a matter to be determined in Northern Ireland by the law of Northern Ireland. It should be pointed out that the Minister, the first respondent in the prohibition proceedings, did not raise the Article 73 issue which I have considered but that the harbour commissioners, notice parties in those proceedings, did. I granted an adjournment so that counsel for the Minister could take instructions. As I understand the position, counsel was not specifically instructed to argue that the Minister had no power to approve the bye-laws, that the Minister’s view was that the point was one for determination by the court, but that if the statutory power existed (a) the proceedings were premature, and (b) he was empowered to approve the draft bye-laws if he considered it appropriate to do so.
As the parties may wish to have determined all issues which were raised, I can express my opinion on them shortly as follows:
(1) For reasons already explained if the pre-1922 statutes became part of the law of the Irish Free State there is now no corporate entity under Irish law known as the Londonderry Port and Harbour Commissioners as no corporators have been elected as required by the Act of 1920. The body which has forwarded to the Minister draft bye-laws for his approval has no power to do so under Irish law. Accordingly the Minister has no function in relation to them.
(2) I agree with the submission made on behalf of the Minister (and supported by the harbour commissioners) that these prohibition proceedings are premature. Under s. 48 of the Act of 1882, the Minister is required to consider representations made to him before approving draft bye-laws submitted by the harbour commissioners and he may approve, amend or disallow them. Even if it was shown that the draft bye-laws wereultra vires the Minister’s powers or unreasonable, the court cannot assume that they would be adopted by the Minister. I think that an objector to draft bye-laws is required to exhaust his statutory remedies before seeking the aid of the court in relation to them. If notwithstanding his objections the Minister approved bye-laws which legally he could not approve then the courts would quash the bye-laws.
(3) Finally it was urged that the draft bye-laws are (a) ultra viresthe Minister’s powers and (b) unreasonable and that the Minister should be prohibited from adopting them. It was urged that the harbour commissioners are under a statutory duty to keep open the whole of the harbour, port and all the piers and quays which form part of their undertaking and that the power to make bye-laws cannot be construed as permitting the enactment of bye-laws which would breach that duty. I cannot agree. Bye-laws can be made for the purpose of “regulating the use of the harbour, dock or pier” (s. 83 of the Act of 1847). This seems to me to confer a power to make bye-laws regulating the manner in which any part of its undertaking is to be used. This is what the draft bye-laws propose to do in relation to the pier at Carrickarory. Nor do I think that the draft bye-laws can be said to be unreasonable. The harbour commissioners have a statutory duty to raise income and to apply it in fulfilment, inter alia, of the powers to maintain and repair quays and piers. That income may not be sufficient to repair and maintain every part of their undertaking and the harbour commissioners must have a discretion as to how its income is to be used. This means that the statutes must be construed so as to permit them to discontinue, or reduce, the use of part of their undertakings should financial constraints so require. This is what has happened in this case. It seems to me that the harbour commissioners have not acted unreasonably in proposing to limit in the way proposed in the draft bye-laws the use of the pier of Carrickarory.
For all these reasons I will also dismiss the claim for an order of prohibition.