International Relations

Cases

 

 

Crotty v. An Taoiseach

 

[1987] IR 725

Barrington J. 725
H.C.

First of all I should thank counsel for the assistance which they have given to me in relation to what I have found to be an extremely difficult case. It is an application for an interlocutory injunction and I must endeavour to follow the procedure contemplated in the Campus Oil v. Minister for Industry & Energy (No. 2) [1983] I.R. 88 decision in my approach to the matter. It has the complication, which is adverted to obliquely in that case, that the issues raised are constitutional issues in relation to which weight must be given to the presumption of constitutionality. But subject to that, what I have to direct my mind to is whether the plaintiff has raised a fair question of law and it appears to me to be proper, having regard to the remarks of the Chief Justice in the Campus Oil Case , to attach a greater significance to the term “fair question of law” than would be attached in private litigation because of the existence of the presumption of constitutionality in favour of an Act of Parliament and also a similar kind of presumption in favour of the executive acts of the Government. Nevertheless it appears to be a fair question and it is not a matter on which I should attempt to adjudicate at this stage and I will attempt to refrain from doing so.
Secondly, I have to consider the balance of convenience as between the parties, and in that context again the case is somewhat unusual in that one is dealing with the balance of convenience as between a private citizen and the government of the state and also one is dealing with the balance of convenience in a context in which the plaintiff is attempting to raise a constitutional issue.
The nature of the relief sought in the motion before me is quite unusual and as far as I know without precedent and it is a claim for an injunction restraining the defendants who in effect are the Government of Ireland and each of them from depositing with the Government of the Italian Republic any purported instrument of ratification of the Single European Act. Now the Single European Act, despite its name, is an international treaty which because it sought to impose a charge on public funds required to be approved by a resolution of the Dáil and I am informed that the Dáil did in fact pass such a resolution on the 11th December, 1986. The Act was then sent to the President who, I am informed, has now affixed the Seal of Ireland on it in accordance with the advice of the Government.
The plaintiff seeks, in the action, to attack the provisions of the Single European Act for reasons which I will touch on later and he also seeks to attack as unconstitutional the provisions of the European Communities (Amendment) Act, 1986, which I am informed was signed and promulgated as law by the President today.
The same plaintiff previously made an abortive application to Carroll J. At that stage he was being advised by a different solicitor and it would appear that that solicitor appeared before Carroll J. He issued a plenary summons and appeared before Carroll J. looking for leave to serve short notice. The short notice he sought was apparently to prevent the Minister proceeding with the Bill in Dail Eireann and it would appear that Carroll J. dismissed that application. The application was clearly misconceived because it is quite clear on the authorities that the Oireachtas is free to exercise its legislative powers without interference by the Courts in the course of legislation and, just as the Courts expect independence within their own sphere, likewise, the legislature is entitled to legislate in the manner which it thinks best within its own sphere without interference by the Courts in the course of the legislative process. It appears to me on the same principle that the Government is free to formulate the external policy of the State and that is a matter vested in the Government by the Constitution and authority for those propositions in relation to the independence of the legislature and the executive, subject to the Constitution, within their own spheres is to be found in Boland v. An Taoiseach [1974] I.R. 338 and Finn v. Attorney General [1983] I.R. 154.
The plaintiff however ” and this is one of the matters which makes this litigation unique in my experience ” submits that the substantial process of legislation is now over. The European Communities Bill is now enacted into law and it forms part of the law of the State subject to any question as to its constitutionality. Likewise the substantive part of policy formulation of the Government associated with the adoption of the Single European Act is now over. The Act has been approved by resolution of the Dáil, has been sealed by the President and all that remains is the formal act of depositing the instrument of ratification with the Government of the Italian Republic pursuant to a procedure contemplated by article 33 of the Single European Act itself.
The background to the present case is to be found in the provisions of the Constitution of Ireland, 1937, which delineate the framework of a sovereign independent state. You have first of all Article 1 which says:”
“The Irish nation hereby affirms its inalienable, 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.”
Then you have Article 6 which says that:”
“All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.”
You have Article 15 which deals with the law-making or legislative power of the State and Article 15, s. 2, sub-s. 1 says:”
“The sole and exclusive power of making laws for the State ishereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.”
Then it goes on to deal with subordinate legislatures which are not relevant for the purposes of this particular judgment. Then you have Article 28, s. 2 which vests the executive power of the State in the Government and then you have Article 29, s. 4, sub-s. 1 which says:”
“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.”
And we now know that, since the Republic of Ireland Act, 1948, the President exercises those powers by or on the authority of the Government in cases where the Government advises him.
Article 29 of the Constitution also deals with international agreements. In sub-s. 1 of s. 5 it provides that “Every international agreement to which the State becomes a party shall be laid before Dail Eireann” and in sub-s. 2″The State shall not be bound by any international agreement involving a charge upon public funds unless the terms of the agreement have been approved by Dail Eireann .” And then in s. 6 it provides “No international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas.”
And that is the general framework of the institutions of a sovereign, independent, constitutional and democratic state. A particular problem arose in 1972 at the time when Ireland was proposing to joint the European Economic Community and that was whether the Oireachtas had power to make an international agreement part of the domestic law of the State. That was a matter for the Oireachtas only, but it was questioned as to whether the Oireachtas had power to delegate law-making functions administrative, legislative, executive and judicial functions to supranational authorities and for that reason it became necessary to pass the Third Amendment to the Constitution which provides that:”
“The State may become a member of the European Coal and Steel Community (established by Treaty signed at Paris on the 18th day of April, 1951), the European Economic Community (established by Treaty signed at Rome on the 25th day of March, 1957) and the European Atomic Energy Community (established by Treaty signed at Rome on the 25th day of March, 1957). No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State necessitated by the obligations of membership of the Communities or prevents laws enacted, acts done or measures adopted by the Communities, or institutions thereof, from having the force of law in the State.”
And the significance of that second sentence of the Amendment was that the Constitution could not now be invoked to invalidate any measure which the
State was directed by the institutions of the EEC to take arising out of the exercise of their powers, nor to invalidate any regulation or any decision of the European Court which had direct effect within this State by virtue of the provisions of the Treaties. And that, therefore, was a very far-reaching amendment to the provisions of the Constitution.
Now the Single European Act is of course an international treaty and under the provisions of article 33 the Act must be:”
“. . . ratified by the High Contracting Parties in accordance with their respective constitutional requirements. The instrument of ratification will be deposited with the Government of the Italian Republic. This Act will enter into force on the first day of the month following that in which the instrument of ratification is deposited of the last Signatory State to fulfil that formality.”
That provision, as Mr. Callan for the plaintiff has pointed out, concerning the form whereby an international treaty becomes part of international law, on deposit with a particular nominated authority, conforms in general principle with the provisions of article 15 of the Vienna Convention on the Law of Treaties to which this State is not a party but which appears to attempt to codify the general provisions of customary international law. It is therefore an instrument to which international authorities would pay respect and it provides that the consent of a State to be bound by a treaty is expressed by accession when:”
“(a) the treaty provides that such consent may be expressed by that State by means of accession;
(b) it is otherwise established that the negotiating States were agreed that such consent may be expressed by that State by means of accession;
(c) or all the parties have subsequently agreed that such consent may be expressed by that State by means of accession.”
And then article 16 refers to the exchange or deposit of instruments of ratification:”
“Unless the treaty otherwise provides, instruments of ratification, acceptance, approval or accession establish the consent of a State to be bound by a treaty upon:
(a) their exchange between the contracting States;
(b) their deposit with the depositary; or
(c) their notification to the contracting States or to the depositary, if so agreed.”
But in fact it does not appear to be necessary to fall back on that provision because, as I said, there is a special arrangement for deposit indicated by the Single European Act itself.
Now, as I indicated, to join the European Communities, it was necessary for this State to have first of all the Third Amendment to the Constitution: secondly, to have a treaty of accession to the Communities, and thirdly, to have the European Communities Act, 1972. That Act contains a definition which may be of some significance for the purposes of these proceedings because it says in the definition section of the Act of 1972 that “the treaties governing the European Communities means” and it then sets them out: the EEC, the Euratom Treaty and all the other treaties governing the Communities.
To achieve the present proposed change we have now the Single European Act, which is the international treaty, and we have the European Communities (Amendment) Act, 1986, but there is no provision for amending the Constitution because in the view of the Government, apparently, such provision is not necessary. So that, so far as the bringing into force of the proposed changes of the European Communities in the Constitution, so far as this State is concerned, only two administrative procedures remain: one being the deposit of the instrument of ratifiaction with the Government of the Italian Republic, and the other the making of an order under s. 3, sub-s. 3 of the new European Communities (Amendment) Act, 1986, bringing that Act into force. When that is done the phrase in the Act of 1972, “the treaties governing the European Communities”, will be expanded to include certain provisions of the Single European Act set out in the new Act so that, in effect, the operative provisions of the Single European Act will become part of the governing treaties of the European Communities.
Now it appears to me that there is no doubt that the Single European Act does attempt to amend and to supplement the treaties establishing the European Communities and indeed it so says on its face. At the same time it is also clear that the Treaty of Rome itself at article 236 contemplated that the Treaty could be amended and it reads:”
“The Government of any Member State or the Commission may submit to the Council proposals for the amendment of this Treaty.
If the Council, after consulting the Assembly and, where appropriate, the Commission, delivers an opinion in favour of calling a conference of representatives of the Governments of the Member States, the conference shall be convened by the President of the Council for the purpose of determining by common accord the amendments to be made to this Treaty.
The amendments shall enter into force after being ratified by all the Member States in accordance with their respective constitutional requirements.”
Therefore it appears that while amendments of the Treaty of Rome are contemplated by the Treaty itself, the amendments when they come into effect or when they are debated are the independent acts of the Member States and if accepted by them are an addition to or an amendment of the Treaties. It follows, as I previously indicated, that once the act of ratification of the Single European Act has been deposited with the Government of the Italian Republic and the order made in accordance with the European Communities (Amendment) Act, 1986, bringing that Act into operation, then the Single European Act becomes one of the governing treaties of the European Communities, and thereupon it would appear, under the provisions of the Third Amendment to the Constitution, that no provision of the Constitution “invalidates laws enacted, acts done or measures adopted by the State necessitated by the obligations of membership of the Communities or prevents laws enacted, acts done or measures adopted by the Communities, or institutions thereof, from having the force of law in the State.”In other words, once all the pieces of the jigsaw puzzle are in place, it would appear to follow that the obligation to observe the provisions of the Single European Act would be one of the obligations of membership of the European Communities and would have validity within the jurisdiction of this country in the domestic law of this country by virtue of the provisions of the Third Amendment to the Constitution.
One of the major points at issue between the parties is that while such provisions would be necessitated by the obligations of membership once the amendment to the Treaties has been made, at the present time when the amendment is still a proposed amendment by way of change or addition to the Treaty of Rome it cannot be said to be “necessitated” by the provisions of the Treaty of Rome and therefore, at this point in time, the plaintiff submits it is open to constitutional challenge by him although it might not be open to constitutional challenge by him at a later stage. Now the respective contentions of the parties on this matter have been that Mr. Fitzsimons for the defendants on the one hand has submitted that what the Single European Act does is merely to tidy up the administrative procedures of the Communities within the ambit of the original Treaties. Mr. Callan on the other hand submits that the effects are much more far-reaching. For instance he submits that the Single European Act contemplates the establishment of a new court within the EEC with powers presently undefined, although he has to admit that such a court, if established, would in fact be subordinate to the present Court of Justice of the European Communities which, in relation to the new court, would act as a court of appeal. He also submits that the Single European Act contains new provisions dealing with the health of workers, a matter on which the original Treaty of Rome was silent, in the sense that there was no specific reference to that matter in it, and he says that this being an extension of the law-making powers of the institutions of the EEC is necessarily a diminution of the sole and exclusive law-making powers of the Oireachtas referred to in Article 15 of the Constitution. Likewise he says the Single European Act contemplates the waiver of certain existing provisions requiring unanimity among Member States and substitutes in their place different forms of majority decision whether weighted or otherwise and these matters are referred to in a schedule to a memorandum which was prepared apparently for the Foreign Affairs Committee of the British Parliament and which is conceded by both parties accurately to set out the contemplated changes.
The plaintiff submits that the result would be to give to the European institutions increased law-making powers over and above those contemplated in 1972 at the time of the referendum and thereby to encroach upon the sole law-making powers of the Oireachtas under Article 15 of the Constitution. It appears to me that, on this question, the plaintiff has raised a fair issue for a court to decide.
Great stress has been laid in the course of the case on the San Michele Case (Cases 9/65 and 58/65) [1967] E.C.R. 1 being a decision of the Court of Justice of the European Communities. That decision appears to contemplate that once a treaty has been formally ratified by a Member State, by the formal deposit of the instrument of ratification, the European Court in exercising its jurisdiction will not go behind that ratification and the Court says in its judgment at p. 29:”
“Whereas, however, the Court of Justice, as the institution entrusted with ensuring that in the interpretation and application of the Treaty the law is observed, can only take into consideration the instrument of ratification, which itself was deposited on behalf of Italy on 22 July 1952 and which, together with the other instruments of ratification, brought the treaty into force. Whereas it is clear from the instruments of ratification, whereby the Member States bound themselves in an identical manner, that all States have adhered to the Treaty on the same conditions, definitively and without any reservation other than those set out in the supplementary protocols, and that therefore any claim by a national of a Member State questioning such adherence would be contrary to the system of Community law.”
Now in that context Mr. Callan has raised this submission, that if the instrument of ratification of the Single European Act is deposited with the European Court then he will have lost any status he might otherwise have in relation to attacking the validity of the Single European Act and that thereafter the institutions of the European Communities will be entitled, within the sphere of their jurisdiction ” increased he suggests by the provisions of the Act ” to make regulations and legal decisions which will be effective within the domestic law of this country and against which the Constitution cannot be invoked.
The contrary submission put forward by Mr. Fitzsimons is that if Mr. Callan ” whatever his status before the European Court ” pursues his present substantive application and establishes to the satisfaction of the court which finally hears the action that the European Communities Act or the Single European Act in fact violates the Constitution of Ireland, that the Government of Ireland would then be obliged in accordance with the provisions of this jurisdiction to abrogate so far as may be necessary the provisions under the European Treaties. It appears to me on that matter also the plaintiff has raised a fair and substantial point of law.
A strong attack has been made on the plaintiff on the basis that he has no locus standi so far as these proceedings are concerned and Mr. Fitzsimons relied upon the provisions of Cahill v. Sutton [1980] I.R. 269 and this is a matter to which, needless to say, I have to give very serious regard. I think it is however important to remember that Cahill v. Sutton dealt with private litigation and was a case where the plaintiff in the action was attempting to set up rights of a third party in order to avail of an alleged defect in the law so as to have it declared invalid and thereby to say there was no law and that therefore the plaintiff was entitled not to be adversely affected by it. In other words the plaintiff was attempting to set up for her own private purposes the rights of a third party and the Supreme Court refused to allow the plaintiff to do that. However, in the course of his judgment in the case Henchy J. made some remarks to which I must pay very careful attention. He says, and Mr. Fitzsimons quoted the passage, at p. 284:”
“There is also the hazard that, if the Courts were to accord citizens unrestricted access, regardless of qualification, for the purpose of getting legislative provisions invalidated on constitutional grounds, this important jurisdiction would be subject to abuse. 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.”
He also refers to the danger that people who have lost their debate with the public or with the parliament might as a final analysis bring the fight into the Courts and he says that this would be an undesirable development if it should take place.
Now this is the matter to which I have to give very careful consideration. There is no doubt that the present issue raised in these proceedings is a controversial political issue but it appears to me also that, right from the start, it has been an issue dealing with the powers of the Government and with constitutional rights which are matters of law and in which a responsible citizen ” be his attitude to them right or wrong ” could take a legitimate interest and that, in so much as it is a matter which affects the whole constitutional and political structure of the society in which he lives, it is a matter in which the individual citizen might have a legitimate interest which might be accepted in a court of law. But I think it important to refer in more detail to what Henchy J. said in that case because he goes on to say (at pp. 284/5):”
“The Constitution has given Parliament the sole and exclusive power of making laws. The Courts normally accord those laws the presumption of having been made with due observance of constitutional requirements. If a citizen comes forward in court with a claim that a particular law has been enacted in disregard of a constitutional requirement, he has little reason to complain if in the normal course of things he is required, as a condition of invoking the court’s jurisdiction to strike down the law for having been unconstitutionally made (with all the dire consequences that may on occasion result from the vacuum created by such a decision), to show that the impact of the impugned law on his personal situation discloses an injury or prejudice which he has either suffered or is in imminent danger of suffering.
This rule, however, being but a rule of practice must, like all such rules, be subject to expansion, exception or qualification when the justice of the case so requires. Since the paramount consideration in the exercise of the jurisdiction of the Courts to review legislation in the light of the Constitution is to ensure that persons entitled to the benefit of a constitutional right will not be prejudiced through being wrongfully deprived of it, there will be cases where the want of the normal locus standi on the part of the person questioning the constitutionality of the statute may be overlooked if, in the circumstances of the case, there is a transcendent need to assert against the statute the constitutional provision that has been invoked. For example, while the challenger may lack the personal standing normally required, those prejudicially affected by the impugned statute may not be in a position to assert adequately, or in time, their constitutional rights. In such a case the court might decide to ignore the want of normal personal standing on the part of the litigant before it. Likewise, 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.”
It does appear to me, assuming the plaintiff were otherwise devoid of constitutional standing, that he has raised matters which are common to him
and to other citizens and which are weighty countervailing considerations which would justify, on their own, a departure from the rule in relation tolocus standi. But it does appear to me that in relation to one matter ” and it is a basic matter ” the plaintiff clearly has a locus standi because his contention is that what is being done involves an amendment to the Constitution which should be submitted to a referendum, and that he, as a citizen, has the right to be consulted in such a referendum and that his right is being infringed. He may be correct in making that submission or he may not but it appears to me that it is a serious and important issue and that he has the locus standi to raise that particular issue.
It is contended that the present application is an abuse of the process of the court. However, I am satisfied that what happened was that the plaintiff, when another solicitor was acting for him, applied to Carroll J. for leave to serve short notice of motion to prevent the Minister placing the matter for consideration before the Oireachtas. It is quite clear that that application met with short shrift, and rightly so, from Carroll J. I think it proper to remark also that when Mr. Callan first made his interim application he informed me that that application had been made and conceded that the application was ill thought out and should not have been made. The application now being made by Mr. Callan and his present team is a much more sophisticated one and it appears to me that he has advanced cogent reasons for making this application at this time and in this way and that it could not properly be referred to as an abuse of the process of the court.
Secondly, and this has caused me some concern, so much so that I checked on the matter myself, it has been suggested that the plaintiff was forum shopping because having failed in his application before Carroll J. he shopped around for a different judge. If that were true I think it would be a reason for refusing him relief now. But I am satisfied from enquiries at the Central Office that in fact the plaintiff or his solicitor sought to make the application before the judge who was on duty, who was MacKenzie J., but that MacKenzie J. was ill at the time and therefore he had to make the application before another judge. Apparently Carroll J. was not available either and ultimately the plaintiff’s legal advisers succeeded in tracking me down and while I might prefer, having regard to the complexity of the matter, that they had found a different judge, I do not think that I can fault them for the course of conduct they followed.
Next I come to the question of the balance of convenience. On the one hand you have the right of one private citizen who has raised a fair and substantial question touching his constitutional rights. Against him it is said that this present application is not necessary because he can achieve the same result by proceeding with his substantive constitutional action and if he is right at the end of the day, he will be entitled to relief. But in that context one has the other puzzling question which Mr. Callan has raised in the light of the decision in San Michele (Cases 9/65 and 58/65) [1967] E.C.R. 1, to the effect that, once the instrument of ratification is deposited, a new jurisdiction will be assumed on a supranational level by the institutions of the Communities and that their jurisdiction will be entitled to effect within the domestic law of this country, and that, putting the matter at its easiest or at its least damaging from the plaintiff’s point of view, one would have a situation where potentially there was a conflict of jurisdiction between the institutions of the European Communities and the domestic courts of this country. It appears that that is a matter on which Mr. Callan has raised a fair question and which is relevant also in the context of the balance of convenience because it would appear that while the Government could, in the event of the courts ultimately holding that the steps already taken were unconstitutional, attempt to retract from its international commitments, the embarrassment certainly to the State would be considerable and indeed it is arguable that we would be entering on a sea of litigation which is uncharted so far as the knowledge of this particular court goes.
Against those difficulties with which the plaintiff is confronted, there is the serious embarrassment which would be caused to the Government if it is unable to lodge the instrument of ratification before the end of this month and that clearly is a serious matter to which weight must be given but I think it is also relevant, in that context, to note that article 33 of the Single European Act itself contemplates that the Act is to be “ratified by the High Contracting Parties in accordance with their respective constitutional requirements.”The plaintiff has raised a question as to the constitutional requirements in this country and it appears to me that that is a matter which this court must take seriously and, on balance, that that matter has been raised in this court at a time when the various changes are not yet binding on the State and that this court must in pursuance of its general duties under the Constitution allow a constitutional issue to be raised and allow the status quo to be preserved pending its resolution. So I think the balance of convenience is in favour of granting the injunction rather than refusing it. In that context of course I have also had to consider, as I previously indicated, that there is a constitutional presumption in favour of the Act of 1986 and I am prepared to accept for the purposes of this application that the Executive is also entitled to a similar kind of respect in relation to its executive functions and furthermore that the court must proceed on the basis of a presumption in favour of the correct exercise of executive powers, which presumption is strengthened because a resolution of Dail Eireann has been passed. Needless to say, I have found these matters very troublesome but it appears to me that even despite those presumptions I still must reach the conclusion that at this early stage the plaintiff has raised an issue of such substance and importance as to warrant preserving the status quo until the issue has been resolved in these courts.
I accordingly will grant the interlocutory injunction sought by the plaintiff.

 

The judgment of the court (Hamilton P., Barrington and Carroll JJ.) was delivered by Barrington J.

Barrington J.
12th February 1987

The plaintiff is an Irish citizen. The first fifteen defendants are the Government of Ireland who exercise the executive power of the State pursuant to the provisions of the Constitution. The sixteenth defendant is the State and the seventeenth defendant is the Attorney General and law officer of the State designated by the Constitution and is joined as a defendant in such capacity. In these proceedings the plaintiff claims, inter alia:”
(1) A declaration that the State cannot become bound by the Single European Act being a treaty designed to amend and augment the treaties establishing the European Communities and to establish European Political Cooperation in the sphere of foreign and security policy, except by virtue of a referendum to amend the Constitution; (2) A perpetual injunction restraining the defendants and each of them from depositing with the Government of the Italian Republic any purported instrument of ratification of the Single European Act otherwise than by virtue of and pursuant to an amendment of the Constitution through referendum;
(3) If necessary, a declaration that the European Communities (Amendment) Act, 1986, is invalid having regard to the provisions of the Constitution.
The case raises very far-reaching issues touching Irish constitutional law, international law and the law of the European Communities.
The Treaty of Rome
The European Communities are the European Coal and Steel Community (established by the Treaty of Paris dated the 18th April, 1951), the European Economic Community (established by the Treaty of Rome dated the 25th March, 1957) and the European Atomic Energy Community (established by the Treaty of Rome dated the 25th March, 1957). The Single European Act purports, on its face, to amend and supplement all three Treaties. Similar issues arise in relation to all three Treaties and it may simplify matters if we discuss the problems which arise in the light of the Treaty of Rome establishing the European Economic Community.
The purpose of the Treaty of Rome was to establish a European Economic Community. The motives of the founder members of the Community appear from the preamble to the Treaty which, with its reference to the determination of the founder members “to lay the foundations of an ever closer union among the peoples of Europe”, recalls the preamble to the American Constitution. The Treaty contemplated the progressive removal of barriers to trade and obstacles to the free movement of goods and capital over a period of time. Article 2 of the Treaty accordingly provides that the Community will have as part of its task the promotion of harmonious development of economic activities throughout the Community by establishing a common market and “progressively” approximating the economic policies of the Member States. The preamble to the Treaty reads as follows:”
“HIS MAJESTY THE KING OF THE BELGIANS, THE PRESIDENT OF THE FEDERAL REPUBLIC OF GERMANY, THE PRESIDENT OF THE FRENCH REPUBLIC, THE PRESIDENT OF THE ITALIAN REPUBLIC, HER ROYAL HIGHNESS THE GRAND DUCHESS OF LUXEMBOURG, HER MAJESTY THE QUEEN OF THE NETHERLANDS,
DETERMINED to lay the foundations of an ever closer union among the peoples of Europe,
RESOLVED to ensure the economic and social progress of their countries by common action to eliminate the barriers which divide Europe,
AFFIRMING as the essential objective of their efforts the constant improvement of the living and working conditions of their peoples,
RECOGNISING that the removal of existing obstacles calls for concerted action in order to guarantee steady expansion, balanced trade and fair competition,
ANXIOUS to strengthen the unity of their economies and to ensure their harmonious development by reducing the differences existing between the various regions and the backwardness of the less favoured regions,
DESIRING to contribute, by means of a common commercial policy, to the progressive abolition of restrictions on international trade,
INTENDING to confirm the solidarity which binds Europe and the overseas countries and desiring to ensure the development of their prosperity, in accordance with the principles of the Charter of the United Nations,
RESOLVED by thus pooling their resources to preserve and strengthen peace and liberty, and calling upon the other peoples of Europe who share their ideal to join in their efforts,
HAVE DECIDED to create a European Economic Community . . .”
Article 3 of the Treaty sets out the activities of the Community and reads as follows:”
“For the purposes set out in Article 2, the activities of the Community shall include, as provided in this Treaty and in accordance with the timetable set out therein:”
(a) the elimination, as between Member States, of customs duties and of quantitative restrictions on the import and export of goods, and of all other measures having equivalent effect;
(b) the establishment of a common customs tariff and of a common commercial policy towards third countries;
(c) the abolition, as between Member States, of obstacles to freedom of movement for persons, services and capital;
(d) the adoption of a common policy in the sphere of agriculture;
(e) the adoption of a common policy in the sphere of transport;
(f) the institution of a system ensuring that competition in the common market is not distorted;
(g) the application of procedures by which the economic policies of Member States can be coordinated and disequilibria in their balances of payments remedied;
(h) the approximation of the laws of Member States to the extent required for the proper functioning of the common market;
(i) the creation of a European Social Fund in order to improve employment opportunities for workers and to contribute to the raising of their standard of living;
(j) the establishment of a European Investment Bank to facilitate the economic expansion of the Community by opening up fresh resources;
(k) the association of the overseas countries and territories in order to increase trade and to promote jointly economic and social development.”
Article 4 entrusts the work of the Community to four institutions: (1) an Assembly, (2) a Council, (3) a Commission, and (4) a Court of Justice, each acting within the limits of the powers conferred upon it by the Treaty. By articles 5 and 6 the Member States pledge themselves to facilitate the achievement of the Community’s tasks, commit themselves to abstain from any measures which would jeopardise the attainment of the objectives of the Treaty and promise to act in close co-operation with the institutions of the Community. Article 7 prohibits any discrimination on the grounds of nationality. Article 8 provides that the common market is to be established over a transitional period of twelve years divided into three stages of four years each. (This transitional period was to end in 1969. But, so far as Ireland was concerned, the transitional period was extended to 1977 under the terms of the Accession Treaty). All of these provisions are contained in Part I of the Treaty under the heading “PRINCIPLES”.
It seems clear that what the founders had in mind was a growing dynamic Community gradually achieving its objectives over a period of time. Article 210 provides that the Community is to have legal personality and article 211 provides that in each of the Member States the Community is to enjoy the most extensive legal capacity which the laws of the State allow. The Treaty is one of indefinite duration (article 240). Article 235 provides that if action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community and the Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the Assembly, take the appropriate measures. This article has been the basis of many regulations and directives and its use as such has been expressly approved by the Court of Justice of the European Communities. (See Hauptzollamt Bremerhaven v. Massey-Ferguson GmbH(Case 8/73) [1973] E.C.R. 897).
Article 236 contains provisions for amending the Treaty. The Government of any Member State or the Commission may submit to the Council proposals for the amendment of the Treaty. If the Council, after consulting the Assembly and, where appropriate, the Commission, delivers an opinion in favour of calling a conference of representatives of the Governments of the Member States, the conference shall be convened by the President of the Council for the purpose of determining by common accord the amendments to be made to the Treaty. It also provides that the amendments shall enter into force after being ratified by all the Member States “in accordance with their respective constitutional requirements”. There were a number of amendments to the Treaty prior to Ireland’s accession and further amendments have taken place since.
The Single European Act
The Single European Act is an international treaty designed further to amend the provisions of the Treaty of Rome. It contains, however, (at article 33) its own ratification procedure. This provides that the Act is to be ratified by the High Contracting Parties “in accordance with their respective constitutional requirements.” They make known their ratification by depositing the relevant instrument of ratification with the Government of the Italian Republic. Article 33 also provides that the Act is to enter into force on the first day of the month following that on which the instrument of ratification shall have been deposited by the last signatory State to fulfil that formality.
All Member States, except Ireland, have deposited their respective instruments of ratification with the Government of the Italian Republic. The Irish instrument of ratification has been sealed by the President, on the advice of the Government, is ready for deposit, and would have been deposited but for the interlocutory injunction granted by the High Court on the 24th December, 1986.
The Single European Act consists of a preamble which refers, inter alia,to the European Convention for the Protection of Human Rights and Fundamental Freedoms, and of four titles. Of these the most important is Title II which contains four chapters amending the founding Treaties. Chapter I amends the European Coal and Steel Community Treaty; Chapter II amends the Treaty of Rome; Chapter III amends the Euratom Treaty; and Chapter IV contains general provisions.
Title I refers to certain common provisions of a procedural nature and would not appear to be important for the purposes of this case except for article 3 which provides as follows:”
“(1) The institutions of the European Communities, henceforth designated as referred to hereafter, shall exercise their powers and jurisdiction under the conditions and for the purposes provided for by the Treaties establishing the Communities and by the subsequent Treaties and Acts modifying or supplementing them and by the provision of Title II.
(2) The institutions and bodies responsible for European Political Cooperation shall exercise their powers and jurisdiction under the conditions and for the purposes laid down in Title III and in the documents referred to in the third paragraph of Article 1.”
Title III contains provisions for co-operation by the members of the Community in the sphere of foreign policy.
Title IV contains certain general and final provisions including article 33 which lays down the procedure for ratification, and articles 31 and 32 which are as follows:”
Article 31
“The provisions of the Treaty establishing the European Coal and Steel Community, the Treaty establishing the European Economic Community and the Treaty establishing the European Atomic Energy Community concerning the powers of the Court of Justice of the European Communities and the exercise of those powers shall apply only to the provisions of Title II and to Article 31; they shall apply to those provisions under the same conditions as for the provisions of the said Treaties.”
Article 32
“Subject to Article 3 (1), to Title II and to Article 31, nothing in this Act shall affect the Treaties establishing the European Communities or any subsequent Treaties and Acts modifying or supplementing them.”
It would therefore appear that the most important provisions, so far as this case is concerned are those contained in Title II, Chapter II. These include additional provisions dealing with the internal market, monetary capacity, social policy (including health and safety of workers), economic and social cohesion, research and technological development and the environment (see Section II). The plaintiff submits that the effect of these provisions is to extend the scope of the Treaty of Rome and to add a new objective to the objectives set out in that Treaty.
Article 11 of the Single European Act provides that the Council may, acting unanimously, at the request of the Court of Justice and after consulting with the Commission and the European Parliament “attach” to the Court of Justice a court with jurisdiction to hear and determine at first instance, subject to a right of appeal to the Court of Justice on points of law only, certain classes of action or proceedings brought by natural or legal persons. The new court, however, shall not be competent to hear and determine actions brought by Member States or by Community institutions or questions referred for a preliminary ruling under Article 177 of the Treaty.
Finally, Title II, Chapter I, Section I provides for the introduction of a”cooperation procedure” for arriving at decisions under articles of the Treaty of Rome and for the substitution of qualified voting for unanimous decision-making in a restricted number of cases
The European Communities (Amendment) Act, 1986
The European Communities (Amendment) Act, 1986, amends the European Communities Act, 1972, by adding to “the treaties governing the European Communities” referred to in s. 1 of that Act, the following provisions of the Single European Act, namely:”
“Article 3.1; Title II; Articles 31 and 32; and, in so far as they relate to the said Article 3.1, the said Title II and the said Articles 31 and 32, Articles 33 and 34.”
The Act of 1986 is to be read as one with the Act of 1972 and the effect of the amendment is to make the provisions of the Single European Act referred to part of the domestic law of Ireland, once the Minister for Foreign Affairs has made his order bringing the Act of 1986 into force pursuant to the provisions of section 3.
The Constitution
This case raises fundamental issues concerning the Irish Constitution and the relationship between it and the law of the European Communities. Both sides have therefore found it necessary to re-examine the principal features of our Constitution.
Article 5 provides that Ireland is a sovereign, independent, democratic state. Article 6 provides that all powers of government, legislative, executive and judicial, derive, under God from the people, “whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.”These powers of government are exercisable “only by or on the authority”of the organs of State established by the Constitution. The organs of State established by the Constitution include the President, the Oireachtas, the Government and the Courts. The Constitution provides for a form of separation of powers. Article 15, s. 2 vests in the Oireachtas “the sole and exclusive power of making laws for the State.” The Constitution recognises means whereby the Oireachtas may delegate some of its law-making functions to subordinate legislatures. Prior to the Third Amendment to the Constitution there was no provision whereby it could delegate its law-making powers to a supranational authority. The Oireachtas may not enact any law which is in any respect repugnant to the Constitution. Every law enacted by the Oireachtas which is in any respect repugnant to the Constitution shall be, but to the extent only of such repugnancy, invalid.
Article 28 provides that the executive power of the State shall “subject to the provisions of this Constitution” be exercised by or on the authority of the Government. Article 29, s. 4, provides that 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 34 provides that justice shall be administered in courts established by law by judges appointed in the manner provided by the Constitution. As the Supreme Court said in Buckley and Others (Sinn Féin) v.Attorney General [1950] I.R. 67, at p. 81:” “This seems to us to contemplate and require that justice shall be administered in such manner and not otherwise.”
The High Court, and on appeal from it the Supreme Court, has jurisdiction to decide any question as to the validity of any law having regard to the provisions of the Constitution. In considering any such question the courts will presume that the law is in accordance with the Constitution until the contrary is clearly established. This presumption arises from the respect which each of the great organs of state owes to the other. Each will assume that the other is attempting properly to perform its constitutional function and will normally refrain from interfering in a field prima facie within the area of competence of the other. There appears to be no reason why the courts should not pay to the Government, acting within its own sphere, the same kind of respect it pays to the Oireachtas acting in its proper domain. This would appear to apply with special force when the Government is conducting the external relations of the State ” an area within which the courts have not normally any competence.
Both sides in the present case relied heavily on the decision of the Supreme Court in Boland v. An Taoiseach [1974] I.R. 338. The defendants relied on it as authority for the proposition that the Government must be free to formulate the foreign policy of the State. The plaintiff on the other hand relied on it as authority for the proposition that, even in the conduct of the external relations of the State, the Government was subject to the Constitution and that, at some point, a stage might be reached where it was necessary for the courts to intervene to protect the Constitution.
In that case FitzGerald C.J., at p. 362 put the matter as follows:”
“Consequently, in my opinion, the Courts have no power, either express or implied, to supervise or interfere with the exercise by the Government of its executive functions, unless the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred upon it by the Constitution.”
Budd J., at p. 366, put the matter as follows:”
“It is for the Executive to formulate matters of policy. The judiciary has its own particular ambit of functions under the Constitution. Mainly, it deals with justiciable controversies between citizen and citizen or the citizen and the State and matters pertaining thereto. Such matters have nothing to do with matters of State policy. Viewing the matter from another angle, as to the nature of any relief that could properly be claimed in proceedings of this nature, I ask whether it could be said that the Courts could be called upon to pronounce adversely or otherwise on what the Government proposed to do on any matter of policy which it was in course of formulating. It would seem that that would be an attempted interference with matters which are part of the functions of the Executive and no part of the functions of the judiciary. From a practical standpoint alone, what action would be open to the Courts? The Courts could clearly not state that any particular policy ought not to be pursued.
The Constitution goes further in indicating how far the policies involved in government decisions as to policy such as this are removed from the purview of the Courts in that it makes the Government responsible to the Dáil which can support or oppose those policies and review them. Ultimately, there is the responsibility of the Government to the people who must be consulted by way of referendum where any change of the Constitution is contemplated.”
Griffin J., having surveyed the Articles of the Constitution dealing with the separation of powers, put the matter as follows, at p. 370:”
“In my view, these Articles demonstrate that the Oireachtas, and the Oireachtas alone, can exercise the legislative power of government; that the Government, and the Government alone, can exercise the executive power of government; and that the judicial power of government can be exercised only by judges duly appointed under the Constitution in courts established by law under the Constitution. As the Oireachtas is prohibited from enacting any law which is in any respect repugnant to the Constitution or any provision thereof, the question of the validity of any law having regard to the provisions of the Constitution is reserved to the High Court and the Supreme Court. This is not, however, in any respect an interference by the judicial power in the exercise by the Oireachtas of the legislative power.
By the Constitution the Government is expressly made responsible to Dail Eireann: see s. 4, sub-s. 1, of Article 28. Counsel for the defendants argued that in no circumstances may the Courts interfere with the Government in the exercise of its executive functions. For the purpose of this action it is not necessary to determine this question in the form in which the argument was made, as the defendants need only show that the Courts cannot and should not intervene having regard to the circumstances of the present case. In the event of the Government acting in a manner which is in contravention of some provisions of the Constitution, in my view it would be the duty and right of the Courts, as guardians of the Constitution, to intervene when called upon to do so if a complaint of a breach of any of the provisions of the Constitution is substantiated in proceedings brought before the Courts.”
Under Article 26 of the Constitution the President may, in certain circumstances, refer a Bill to the Supreme Court for a decision as to whether it is or is not repugnant to the Constitution. The defendants stressed that this was the only procedure whereby the constitutionality of legislation could be discussed, in the abstract, and in the light of hypothetical circumstances. In all other cases they suggested that a plaintiff, to have locus standi, had to have a specific personal grievance of the kind contemplated in Cahill v.Sutton [1980] I.R. 269. In this case, the defendants suggested the plaintiff was attempting to get from the High Court a constitutional review of the European Communities (Amendment) Act, 1986, without having any right to demand it. The plaintiff, on the other hand, says that he and his fellow citizens have been deprived of the right to take part in a referendum on what, he alleges, is in fact an attempt to amend the provisions of the Constitution.
Under Article 6 of the Constitution the people have the right “in final appeal” to decide all questions of national policy according to the requirements of the common good. The Constitution provides, however, only three methods whereby the people can be consulted. The first is by a general election held in accordance with the provisions of Article 16 of the Constitution. The second is under Article 27 of the Constitution where the President decides that a Bill is of such national importance that the will of the people thereon ought to be ascertained by referendum. The third is by a referendum to amend the Constitution.
No citizen has a constitutional right to obtain a referendum. A proposal for the amendment of the Constitution must be initiated in Dail Eireann and be passed by both houses of the Oireachtas before being submitted to the people by referendum. But if such a referendum is held the plaintiff, like every other citizen who has the right to vote at an election for members of Dail Eireann , has the right to vote at the referendum. This would appear to contemplate and require that, if the Constitution is to be amended, it is to be amended in accordance with the machinery established under Articles 46 and 47 of the Constitution and not otherwise. The plaintiff submits that he has a right to see that this is done and that this is a right which the State (and in particular the courts), are obliged to defend and vindicate in accordance with the provisions of Article 40, s. 3 of the Constitution.
Summary of plaintiff’s case
The plaintiff maintains that the Constitution is that of an independent, democratic and constitutional state. It is a Constitution which, on its face, excluded the possibility of Ireland becoming a member of the European Economic Community. Article 29, s. 6 gave the Oireachtas power in certain circumstances, to make an international treaty part of the domestic law of the State. But the Treaty of Rome was no ordinary international agreement. It was a treaty which set up a group of supranational institutions, which, within the area of their competence, could override the legislature, executive and judiciary of their Member States and therefore necessarily conflicted with inter alia Articles 15, 28 and 34 of our Constitution. For us to join the E.E.C. required the Third Amendment of the Constitution Act, 1972, carried at a referendum, the European Communities Act, 1972, and the Treaty of Accession. The present proposal is one to amend the Treaty of Rome but it is proposed to do this by means only of the ratification of the Single European Act and the enactment into law of the European Communities (Amendment) Act, 1986, without any referendum.
(a) Form of Third Amendment
The plaintiff’s case rests largely on his interpretation of the Third Amendment to the Constitution. That amendment now appears at Article 29, s. 4, sub-s. 3 and reads as follows:”
“The State may become a member of the European Coal and Steel Community (established by Treaty signed at Paris on the 18th day of April, 1951), the European Economic Community (established by Treaty signed at Rome on the 25th day of March, 1957) and the European Atomic Energy Community (established by Treaty signed at Rome on the 25th day of March, 1957). No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State necessitated by the obligations of membership of the Communities or prevents laws enacted, acts done or measures adopted by the Communities, or institutions thereof, from having the force of law in the State.”
The plaintiff lays particular stress on the second sentence of the subsection quoted.
(b) Nature and effect of ratification procedure
The plaintiff submits that the ratification procedure under article 33 of the Single European Act, once carried into effect, will have far-reaching effects on Community law and on domestic law. Article 33 of the Single European Act contemplates that each of the High Contracting Parties will ratify the Act in accordance with their respective constitutional requirements. But they signify a formal acceptance of the Treaty by the deposit of the instruments of ratification with the Government of the Italian Republic. By doing that each state represents to the other that it has complied with its own constitutional requirements and thereafter the matter passes from the field of national law into that of international law; the provisions of the Treaty of Rome are amended and the change in Community law takes place in all the Member States of the Community. To draw an analogy from company law the memorandum and articles of association of the Community have been changed. So also, the plaintiff submits, have the obligations of membership of the Community within the meaning of the second sentence of the Third Amendment. The European Communities (Amendment) Act, 1986, then, the plaintiff submits, becomes a law enacted by the State”necessitated by the obligations of membership” of the Communities and becomes immune from constitutional challenge by virtue of the provisions of the Third Amendment to the Constitution.
(c) The San Michele Case
Thereafter, the plaintiff submits, the matter cannot be challenged in Community law either and he cites as his authority the case of Acciaierie San Michele SpA v. High Authority (Case 9/65 and 58/65) [1967] E.C.R. 1. That was a case in which an Italian company sought to challenge in the Italian Constitutional Court the validity of Italy’s accession to the European Coal and Steel Community. It then applied in the European Court for interim relief preventing the High Authority of the European Coal and Steel Community moving against it until such time as the constitutional issue raised by it in the Italian Constitutional Court had been determined. The European Court giving the grounds for its refusal of interim relief ([1967] E.C.R. 1 at p. 29) stated:”
“Whereas, in support of its application based on those factors for the adoption of the above-mentioned interim measure, the applicant thus alleged that the judgment to be given by the Corte Constituzionale carried “absolute” authority and that “any court having jurisdiction over Italian citizens” was obliged to suspend judgment;
Whereas, however, the Court of Justice, as the institution entrusted with ensuring that in the interpretation and application of the Treaty the law is observed, can only take into consideration the instrument of ratification, which itself was deposited on behalf of Italy on 22 July, 1952 and which, together with the other instruments of ratification, brought the Treaty into force;
Whereas it is clear from the instruments of ratification, whereby the Member States bound themselves in an identical manner, that all States had adhered to the Treaty on the same conditions, definitively and without any reservations other than those set out in the supplementary protocols, and that therefore any claim by a national of a Member State questioning such adherence would be contrary to the system of Community law;
Whereas such a claim is all the more inadmissible in that, in this case, any decision to suspend judgment would be tantamount to reducing the Community to a cipher by regarding the instrument of ratification either as only partially accepting the Treaty, or as the means of according to it different legal consequences, varying with the Member State concerned, or as the means whereby some nationals might evade its rules;
Whereas the participation of the Italian Republic in the common institutions and in the rights and obligations arising from the Treaty in fact preclude its nationals from avoiding the complete and uniform application of the said Treaty and from thus obtaining different treatment from that of other nationals in the Community;
Whereas, therefore, there must be dissmissed as contrary to Community policy any application the purpose of which is to establish discrimination of this nature which no law of ratification could introduce into a treaty prohibiting such discrimination; . . .”
This judgment was merely a judgment on an interim application but the point being made by the European Court appears to be a basic one. It would not be open to the Court to question the validity of the Treaty to which it owed its existence any more than it would be open to this court to question the validity of the Irish Constitution. Whether the same line of reasoning applies to an amendment to the Treaty is not equally clear, but the plaintiff claims that it does.
(d) The Vienna Convention
The plaintiff seeks to reinforce his interpretation of the San Michele Case (Case 9/65 and 58/65) [1967] E.C.R. 1 by reference to the Vienna Convention on the Law of Treaties. Ireland is not a party to this convention but it is a convention which seeks to codify the international law in relation to treaties and it is therefore an instrument to which international authorities would pay respect. Article 16 refers to the exchange or deposit of instruments of ratification and provides:”
“Unless the treaty otherwise provides, instruments of ratification, acceptance, approval or accession establish the consent of a State to be bound by a treaty upon:”
(a) their exchange between the contracting States;
(b) their deposit with the depositary; or
(c) their notification to the contracting parties or to the depositary, if so agreed.”
(e) Primacy of Community Law
The plaintiff refers to the fact that, within the area of its competence, Community law takes precedence over the national law of the Member States. It constitutes a new legal order of international law for the benefit of which states have limited their sovereign rights and the subjects of which are not only the Member States but also their nationals. By contrast with ordinary international treaties the EEC Treaty has created its own legal system which, on the entry into force of the Treaty, became an integral part of the legal systems of the Member States and which their courts are bound to apply. By creating a community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane, and more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the states to the Community, the Member States have limited their sovereign rights, albeit within limited fields, and thus created a body of law which binds both their nationals and themselves. The transfer by the states from their domestic legal system to the Community legal system of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights, against which a subsequent unilateral act, incompatible with the concept of the Community cannot prevail. See Van Gend en Loos v. Nederlandse Belastingadministratie (Case 26/62) [1963] E.C.R. 1; Humblet v. Belgium (Case 6/60) [1960] E.C.R. 559; Costa v.E.N.E.L. (Case 6/64) [1964] E.C.R. 585 and Amministrazione delle Finanze dello Stato v. Simmenthal SpA (Case 106/77) [1978] E.C.R. 629.
(f) Alleged Extension of Scope of Treaty
The plaintiff submits that the Single European Act in fact extends the scope of the objectives of the Treaty and increases the competence of its institutions thereby diminishing the sovereignity of the organs of government established by the Constitution. He submits that the institutions of the Treaty of Rome will now be competent to deal with matters such as the health of workers and the environment, on which the Treaty was previously silent. He submits that the shift from unanimous voting to qualified majority voting in certain cases will weaken the position of Ireland and enhance the competence of the Community. He is suspicious of the reference to the European Convention on Human Rights in the preamble to the Single European Act. He is worried lest this and the evolving jurisprudence of the Community, based as it is in some measure on the common constitutional heritage of the Member States, may threaten positions where the Irish Constitution takes a particular and unique stand. He refers for instance to the right to life of the unborn. He also fears that the provisions of Title III relating to European cooperation in the sphere of foreign policy may undermine this State’s traditional policy of neutrality.
(g) Possible subversion of Constitution
However, his principal submission is that once the instrument of ratification is lodged with the Government of the Italian Republic it will be too late for him to look for relief because the obligations of membership of the Communities will have been changed and everything necessitated by the changed obligations of membership of the Communities will thereafter be immune from constitutional attack by virtue of the provisions of the second sentence of the Third Amendment. It is this extreme circumstance which, he says, entitles him to relief now. He is not, he claims, attempting to interfere with the formulation of policy but attempting to stop an administrative act which will bring about an irreversible constitutional change, and which, he suggests, is open to constitutional challenge now but will be immune from constitutional attack once the instrument of ratification has been deposited. Even the English courts, he says, with their tradition of parliamentary sovereignty and royal prerogative in foreign affairs, were prepared to entertain an application by a taxpayer to prevent the approval of a draft order in council where the order, once approved, would create an irreversible position. See Reg. v. H.M. Treasury, Ex p. Smedley [1985] Q.B. 657.
The plaintiff submits that if what is attempted to be done in the present case is permitted then it can be repeated, and more and more of the sovereignty of the organs of State established by our Constitution can be transferred to the European Communities without the people generally being consulted in a referendum or having an opportunity to challenge the matter in the courts.
(h) Locus Standi
The plaintiff claims that, in these circumstances, he is a person aggrieved within the meaning of Cahill v. Sutton [1980] I.R. 269 in that procedures are in train, the effects of which are to amend the Constitution without holding a referendum. He, as a person entitled to vote in a referendum, if held, has locus standi to voice his complaint. Even if he were not an aggrieved person within the category primarily contemplated in Cahill v. Sutton there are still in the present case “countervailing considerations”of the kind contemplated by the judgment of Henchy J. in Cahill v.Sutton [1980] I.R. 269 at 285. These countervailing considerations he submits are circumstances of the most serious kind and bring him within the discretion which the Supreme Court reserved to itself in Cahill v. Sutton . He is attempting to assert the rights of himself and his fellow citizens in a case which is the kind of action to which the Attorney General might otherwise lend his name. But the Attorney General is already a defendant in these proceedings, and properly so, as representing the State and as law officer of the Government. He is not therefore available to assert the rights of the public in the circumstances of the present case.
The plaintiff asserts that it is not safe to allow the instrument of ratification to be deposited, to allow the European Communities (Amendment) Act, 1986, to come into force and to wait until some citizen comes along claiming that a specific right guaranteed to him by the Irish Constitution is violated by some act or regulation of the Community. By that time, he submits, the Treaty governing the Community will have been amended. The obligations of membership will have been changed. The European Communities (Amendment) Act, 1986, will be in force and immune from constitutional challenge by virtue of the second sentence of the Third Amendment to the Constitution. Community law will have primacy over national law so that it will be too late for the plaintiff to attempt to invoke rights guaranteed to him under the Constitution against the Community measure. Indeed the plaintiff submits that the very question arising would be one of Community law and that if any party to the litigation sought a reference to the European Court pursuant to article 177 of the Treaty our High Court would have to consider, and our Supreme Court would have to grant, such a request.
Under these circumstances the plaintiff submits that now is the only time at which he can make his case and that therefore he has the locus standito make it.

Summary of defendants’ case
The defendants’ case may be summarised as follows:”
(a) Premature
The defendants claimed that the plaintiff’s application was premature. However they said they were waiving this point because of their desire to get a decision on the substantive issue raised by the litigation.
(b) Locus standi
They were however relying on the point that the plaintiff had no locus standi in the sense that he could not point to any specific way in which he personally was adversely affected by the provisions of the Single European Act or by those of the European Communities (Amendment) Act, 1986. He could point to no concrete specific grievance and could not therefore bring himself within Cahill v. Sutton [1980] I.R. 269. Neither the Single European Act nor the European Communities (Amendment) Act, 1986, amended the Constitution. The question of a referendum did not therefore arise. In any event the plaintiff had no constitutional right to have a referendum held.
(c) No extension of scope of objectives
The Single European Act was an amendment to the Treaty of Rome. But it did not in any way extend the scope of the objectives of that Treaty. All of the objectives referred to in Title II of the Single European Act, to wit the articles dealing with the establishment of the internal market, with monetary capacity, with social policy, with economic and social cohesion, with research and technological development, with the health and safety of workers and with the environment, are all matters subsidiary to the establishment of an economic community. They are all provided for expressly or by necessary implication in the original Treaty. Some of these subjects such as “the environment” or “the health and safety of workers” may now loom larger in the public mind than they did when the Treaty of Rome was made in 1957. But they were nevertheless present in the minds of the founders of the Treaty which refers expressly, in its preamble, to the “living and working conditions” of the peoples of the Community. In fact the Community has, over the years, been issuing regulations and directives dealing with all these matters.
(d) Internal reform
When the Irish people voted to join the European Community in 1972 they voted to join what was intended to be a dynamic, expanding Community with definite objectives. The Community has, over the years, failed to achieve all of the objectives which the Members set for it. This has been blamed partly on defects in the decision-making machinery of the Community. The Single European Act is designed to improve the decision-making process. If an analogy is to be made with company law, changes are being made in the articles of association of the company but the object clauses remain, in substance, the same.
(e) Constitutional rights
There is nothing in the Single European Act which in any way affects constitutional rights guaranteed by the Constitution. The plaintiff is concerned about what might be introduced in legislation dealing with the health of workers. But the Community has been competent to legislate on this subject from its foundation. The plaintiff also points to the reference to the European Convention for the Protection of Human Rights and Fundamental Freedoms contained in the preamble to the Single European Act, but this Convention is not being made part of the laws of Ireland and, by virtue of the provisions of article 31 and 32, it adds nothing new to the jurisprudence of the Court of Justice of the European Communities. The European Court already looks to the European Convention in its quest for common constitutional values which should guide the jurisprudence of the Court. (See Internationale Handelsgesellschaft mbH v. Einfuhr- und Vorratsstelle Getreide(Case 11/70) [1970] E.C.R. 1125; J. Nold KG v. Commission (Case 4/73) [1974] E.C.R. 491). The quest for common constitutional values is not designed to deprive nationals of Member States of fundamental rights guaranteed to them by their respective national constitutions. Rather is it designed to protect individuals against harsh or unfair legislative or administrative acts of the Community. The primacy of Community law within its own sphere is one of the fundamental principles applied by the Court. The Court is also sceptical of any provision of national law which might appear to be a disguised discrimination in favour of its own nationals contrary to the provisions of article 7 of the Treaty. Nevertheless, the Court is sensitive to the need to respect any provision of national law which is based on deeply held feelings of public morality in that particular Member State. (See Adouiv. Belgium (Case 115/81) [1982] E.C.R. 1665; Rutili v. Ministre de l’Interieur(Case 36/75) [1975] E.C.R. 1219; Reg. v. Henn (Case 34/79) [1979] E.C.R. 3795). But the fundamental submission is that nothing in the Single European Act alters this position one way or the other.
(f) Legitimate sphere of executive action
The decision whether to ratify or not to ratify the Single European Act falls within the legitimate sphere of executive action allotted to the Government by the Constitution. It is not a matter in which the Courts should intervene. See Boland v. An Taoiseach [1974] I.R. 338. This is particularly the case with Title III of the Single European Act which deals with cooperation in the sphere of foreign policy.
(g) Dynamic Community
When the Irish people agreed in 1972 to join the European Economic Community, they agreed to join a Community which was, from its nature, a growing and expanding Community. By doing so, they gave the Government permission to take all such steps as might be necessary to make us effective members of that Community and to play our full part in it. If, however something were being done to change the nature of the Community from an economic community into a political community or a military power then it would be necessary for the Government and the Oireachtas to consult the people in a further referendum. The Community which we joined is governed by a Treaty which contains (at article 236) its own machinery for making amendments. The fact that the people agreed to a machinery for making amendments to the Treaty does not, of course, commit them to agreeing to any specific amendment. But it does mean that it is competent for the Government, with a mandate, where necessary, of a resolution of Dail Eireann or of domestic legislation, to agree to amendments to the Treaty within the scope of its original objectives. Only if the proposed amendment goes outside the terms of the original objectives and amounts to an amendment to the Constitution as well, is it necessary for the Government to consult the people in a referendum.
(h) The new court
The defendants submit that the need for the new court arises from the growing volume of work in an expanding Community. This has put pressure on the European Court which finds an increasing amount of its time being taken up with matters of minor importance. The proposed court, which can only be set up at the request of the existing Court, will be “attached” to the existing Court and will be a court of first instance, subject to a right of appeal on points of law to the existing Court. The court will not be competent to hear actions brought by Member States or by Community institutions or questions referred for a preliminary ruling under article 177 of the Treaty. These important matters will remain with the existing Court. The proposed new court therefore represents a natural development in the evolution of the Community.
(i) Misunderstanding of Article 29
The defendants claim that the plaintiff has misinterpreted the Third Amendment to the Constitution. This can only be understood in the light of Article 29 as a whole and against the background of the relationship between national and international law.
Analysis of Article 29
As the defendants’ submission on Article 29 is fundamental to the issues raised in this case I now propose to consider this Article in detail. Article 29 of the Constitution is headed “International Relations” and, as amended by the Third Amendment to the Constitution, reads 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.
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.
2 For the purpose of the exercise of any executive function of the State in or in connection with its external relations, the Government may, to such extent and subject to such conditions, if any, as may be determined by law, avail of or adopt any organ, instrument, or method of procedure used or adopted for the like purpose by the members of any group or league of nations with which the State is or becomes associated for the purpose of international co-operation in matters of common concern.
3 The State may become a member of the European Coal and Steel Community (established by Treaty signed at Paris on the 18th day of April, 1951), the European Economic Community (established by Treaty signed at Rome on the 25th day of March, 1957) and the European Atomic Energy Community (established by Treaty signed at Rome on the 25th day of March, 1957). No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State necessitated by the obligations of membership of the Communities or prevents laws enacted, acts done or measures adopted by the Communities, or institutions thereof, from having the force of law in the State.
5. 1 Every international agreement to which the State becomes a party shall be laid before Dail Eireann .
2 The State shall not be bound by any international agreement involving a charge upon public funds unless the terms of the agreement shall have been approved by Dail Eireann .
3 This section shall not apply to agreements or conventions of a technical and administrative character.
6. No international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas.”
It is clear therefore that Article 29 contemplates a number of different kinds of international agreements which may be treated in different ways. International agreements or conventions of a technical and administrative character need not even be laid before Dail Eireann . But all other international agreements must be laid before Dail Eireann . If the international agreement involves a charge on public funds it is not enough to lay it before Dail Eireann . The terms of the agreement must be approved by resolution of Dail Eireann . In The State (Gilliland) v. Governor of Mountjoy Prison [1987] I.R. 201 the Supreme Court in its judgment struck down a governmental order made under the provisions of the Extradition Act, 1965, purporting to apply Part II of the Act to extraditions from this country to the United States of America. The relevant extradition treaty had in fact been laid before Dail Eireann . But it involved a charge upon public funds and had not been approved by resolution of Dail Eireann . It was not therefore binding on the State ” at least in contemplation of Irish domestic law ” and it was not competent therefore for the Government to make an order the effect of which would be to make the extradition arrangements enforceable in domestic law. The Supreme Court did not purport to adjudicate on the question of whether the extradition treaty was a valid international agreement. It was sufficient for our courts to say that under the provisions of our Constitution our State was not bound by it and therefore it could not be enforced in domestic law.
But more important for the present case is s. 6 of Article 29 which provides that no international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas. This section clearly accepts the dualistic concept that some international agreements may be perfectly valid in international law but remain of no relevance to the national courts of a particular country simply because the relevant constitutional authority has not made them part of the domestic law.
This distinction is illustrated by In re Ó Laighléis [1960] I.R. 93. The applicant in that case sought to rely upon the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which had been ratified by the State but had never been made part of its domestic law. Maguire C.J. delivering the judgment of the Supreme Court said, at p. 124:”
“The insuperable obstacle to importing the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms into the domestic law of Ireland ” if they be at variance with that law ” is, however, the terms of the Constitution of Ireland. By Article 15, 2, 1 of the Constitution it is provided that “the sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.” Moreover, Article 29, the Article dealing with international relations, provides at section 6 that “no international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas.”
The Oireachtas has not determined that the Convention of Human Rights and Fundamental Freedoms is to be part of the domestic law of the State, and accordingly this Court cannot give effect to the Convention if it be contrary to domestic law or purports to grant rights or impose obligations additional to those of domestic law.
No argument can prevail against the express command of section 6 of Article 29 of the Constitution before judges whose declared duty it is to uphold the Constitution and the laws.
The Court accordingly cannot accept the idea that the primacy of domestic legislation is displaced by the State becoming a party to the Convention for the Protection of Human Rights and Fundamental Freedoms. Nor can the Court accede to the view that in the domestic forum the Executive is in any way estopped from relying on the domestic law. It may be that such estoppel might operate as between the High Contracting Parties to the Convention, or in the Court contemplated by Section IV of the Convention if it comes into existence, but it cannot operate in a domestic Court administering domestic law. Nor can the Court accept the contention that the Act of 1940 is to be construed in the light of, and so as to produce conformity with, a convention entered into ten years afterwards.”
It therefore appears that no international treaty could be part of the domestic law of Ireland save as might be determined by the Oireachtas. If therefore the provisions of the Treaty of Rome were to have any effect in domestic law this could only be done by means of an Act of the Oireachtas.
Many international treaties ” such, for instance, as the Warsaw Convention ” had been made part of the domestic law of Ireland by virtue of Acts of the Oireachtas. But, as previously indicated, the Treaty of Rome was no ordinary international treaty. It was a treaty which created new supranational authorities with legislative, executive, and judicial powers claiming, within the area of their competence, to overrule the legislative, executive and judicial organs of this State. It therefore required an amendment to the Constitution to allow Ireland to accede to the Treaty.
The licence to join is contained in the first sentence of the Third Amendment to the Constitution and it is a mistake to emphasise the second sentence at the expense of the first. So far as relates to the European Economic Community, the first sentence reads:”
“The State may become a member of . . . the European Economic Community (established by Treaty signed at Rome on the 25th day of March 1957) . . .”
The “licence” says that the State may become “a member” of a specific community which it identifies by reference to the Treaty of Rome. The Treaty of Rome (which, as previously indicated, had been amended several times before Ireland’s accession) is not referred to for the purpose of limiting or freezing the activities of the Community but for the purpose of identifying the Community which the State is permitted to join. This is the Community incorporated by article 210 of the Treaty and it remains, in law, the same Community whether the Treaty is amended or not.
By the Accession Treaty made at Brussels on the 22nd January, 1972, it was provided, inter alia, that Ireland should become a member of the European Economic Community subject to depositing its instrument of ratification with the Government of the Italian Republic before the 31st December, 1972.
A referendum was held on the 10th May, 1972, at which the people voted by an overwhelming majority in favour of the Third Amendment of the Constitution, and the Third Amendment of the Constitution Act, 1972, was enacted into law on the 8th June, 1972. Ireland deposited its instrument of ratification on the 16th December, 1972.
These acts may have been sufficient to make Ireland a member of the European Community in international law as from the 1st January, 1973. Indeed Article 1 of the Treaty of Accession provided:”
“The Kingdom of Denmark, Ireland, the Kingdom of Norway and the United Kingdom of Great Britain and Northern Ireland hereby become members of the European Economic Community . . .”
But these acts were not sufficient in themselves to make Ireland an effective member of the Community. To make Ireland an effective member as of the 1st January, 1973, it was necessary to make the Treaty part of the domestic law of Ireland. To achieve this it was necessary to pass an Act of the Oireachtas pursuant to the provisions of Article 29, s. 6, making the Treaty of Rome part of the domestic law of Ireland and giving the institutions of the Community a status in Irish domestic law. Had the Oireachtas not passed the European Communities Act, 1972, Ireland might still have been a member of the Community in international law but it would have been in breach of its obligations in international law under the Treaty of Rome and under the Treaty of Accession. This however would not have been a matter in relation to which the domestic courts of this country would have had any competence because the Treaty would not have been part of the domestic law. The immunity from constitutional challenge conferred by the second sentence of the Third Amendment on laws enacted, acts done, or measures adopted by the Community or its institutions would therefore have been meaningless as these laws, acts or measures would not have been part of the domestic law of this country.
To make them part of the domestic law of this country the European Communities Act, 1972, was necessary. This Act cannot therefore have been passed by virtue of the second sentence of the Third Amendment but by virtue of the licence to join the European Community contained in the first sentence of the Third Amendment. It accordingly in s. 1 lists the Treaties governing the European Communities and, in s. 2, provides that from the 1st January, 1973, the Treaties governing the European Communities and the existing and future acts adopted by the institutions of those Communities, shall be binding on the State and shall be part of the domestic law thereof under the conditions laid down in those Treaties.
The European Communities Act, 1972, was clearly authorised by the people when they authorised the State to join the European Economic Community. It must be presumed to be constitutional and would appear to be safe from constitutional challenge. But had it gone outside the terms of the licence granted by the first sentence of the Third Amendment it would not have been immune from constitutional challenge.
The immunity conferred by the second sentence of the Third Amendment would appear to apply to legislative and administrative measures taken in the day-to-day running of the Community. For instance article 189 of the Treaty provides that the Council and the Commission may, in accordance with the provisions of the Treaty, make regulations and issue directives. A regulation is of general application, it is binding in its entirety and is directly enforceable in all the Member States of the Community. A directive, on the other hand, is binding only as to the result to be achieved, and leaves to each Member State the choice of form and method in its enforcement. Put another way, there are some acts of the institutions of the Community which are directly enforceable in all the Member States whereas others require legislative or administrative action by the Member States to procure their enforcement. It is these matters which are referred to in the second sentence of the Third Amendment when it says:”
“No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State necessitated by the obligations of membership of the Communities or prevents laws enacted, acts done or measures adopted by the Communities, or institutions thereof, from having the force of law in the State.”
It is these matters alone which are given immunity from constitutional challenge by the second sentence of the Third Amendment. But such of these matters as are acts of the institutions of the Communities derive their status in domestic law from the European Communities Act, 1972. If the second sentence of the Third Amendment is the canopy over their heads, the Act of 1972 is the perch on which they stand.
The European Communities (Amendment) Act, 1986, purports to amend the European Communities Act, 1972. Section 1 provides that the portions of the Single European Act therein referred to are to be included in the definition of “the Treaties governing the European Communities”contained in s. 1 of the Act of 1972. The effect is to make them part of the domestic law of Ireland by virtue of the provisions of s. 2 of the Act of 1972.
The Act of 1986 amends the Act of 1972 and is to be construed with it as one Act. Naturally, being an Act of the Oireachtas it is presumed not to violate the Constitution but, like the Act of 1972, it derives its validity from the licence contained in the first sentence of the Third Amendment. If it goes outside the terms of this licence it is open to challenge, in an appropriate case, as being invalid having regard to the provisions of the Constitution. Should such challenge be successful such acts of the institutions of the Community as depend on it for their status in domestic law would lose that status and would be of no effect in domestic law. Such a result might be embarrassing for the Government, and might involve the State being in breach of its international obligations, but such considerations could not prevent this court from fulfilling its constitutional duty, should the matter be made out in a case properly before it.
Conclusion
I conclude that the plaintiff is mistaken when he submits that, on the deposit of the instrument of ratification of the Single European Act by the Government with the Government of the Italian Republic, the European Communities (Amendment) Act, 1986, or the order bringing it into force or both will become immune from constitutional challenge under the second sentence of the Third Amendment. It has immunity but only if it does not go outside the terms of the licence granted by the first sentence of that amendment. That is a licence to join a living dynamic Community of the kind described by the defendants.
As I am satisfied that the mere deposit of the instrument of ratification will not confer on the European Communities (Amendment) Act, 1986, any immunity from challenge on constitutional grounds or any impregnable position in domestic law on such provisions of the Single European Act as will depend on it for their status, I conclude that the relief sought by the plaintiff is not necessary for the protection of the Constitution or of the fundamental rights guaranteed thereby. The extraordinary relief which the plaintiff claims of an injunction restraining the Government from depositing the instrument of ratification with the Government of the Italian Republic is not therefore necessary and could only be justified ” if justified at all ” in a situation where there was no other method of protecting the Constitution.
The plaintiff, having failed on this point, has no locus standi to make the other points which have been advanced on his behalf in argument. He is not immediately affected or threatened by any of the other matters which he seeks to raise. Therefore on the authority of Cahill v. Sutton [1980] I.R. 269 he has no locus standi to advance these arguments. He is not entitled to a general review of the Act similar to the one which might be made of a Bill by the Supreme Court on a reference to it of the Bill by the President under Article 26 of the Constitution. This Court is not therefore called upon to decide them.
As O’Higgins C.J. said in Cahill v. Sutton [1980] I.R. 269 at p. 276:”
“This Court’s jurisdiction, and that of the High Court, to decide questions concerning the validity of laws passed by the Oireachtas is essential to the preservation and proper functioning of the Constitution itself. Without the exercise of such a jurisdiction, the checks and balances of the Constitution would cease to operate and those rights and liberties which are both the heritage and the mark of free men would be endangered. However, the jurisdiction should be exercised for the purpose for which it was conferred ” in protection of the Constitution and of the rights and liberties thereby conferred. Where the person who questions the validity of a law can point to no right of his which has been broken, endangered or threatened by reason of the alleged invalidity, then, if nothing more can be advanced, the Courts should not entertain a question so raised. To do so would be to make of the Courts the happy hunting ground of the busybody and the crank. Worse still, it would result in a jurisdiction which ought to be prized as the citizen’s shield and protection becoming debased and devalued.”
In the same case Henchy J. put the matter as follows, at p. 284:”
“The Constitution has given Parliament the sole and exclusive power of making laws. The Courts normally accord those laws the presumption of having been made with due observance of constitutional requirements. If a citizen comes forward in court with a claim that a particular law has been enacted in disregard of a constitutional requirement, he has little reason to complain if in the normal course of things he is required, as a condition of invoking the court’s jurisdiction to strike down the law for having been unconstitutionally made (with all the dire consequences that may on occasion result from the vacuum created by such a decision), to show that the impact of the impugned law on his personal situation discloses an injury or prejudice which he has either suffered or is in imminent danger of suffering.”
It is therefore clear that the plaintiff has no locus standi to raise these matters.
This court would not like to say anything which would in any way inhibit any court which might, in the future, be called upon to decide any of them in a justiciable controversy properly before it. In deference, however, to the able and elaborate arguments which have been advanced to the court by counsel on both sides it is perhaps fair to say that the court is unconvinced that there is anything in the Single European Act which is outside the terms of the licence granted by the first sentence of the Third Amendment, extends the scope of the objectives of the European Community, poses any new threat to any rights guaranteed by our Constitution or represents anything other than an evolution of the Community within the terms of its original objectives.
So far as the portions of the Single European Act dealing with European Political Cooperation, and which it is not proposed to make part
of the domestic law of Ireland, are concerned, this court does not consider that it has any function in relation to them.
In the circumstances the plaintiff’s case should be dismissed.

Supreme Court

 

Finlay C.J.
18th February 1987

This is an appeal from a refusal of the Divisional Court to permit the continuation of an interlocutory injunction restraining the Government from ratifying the Single European Act and seeking to continue that interlocutory injunction until the final hearing of the case. The first issue is whether the plaintiff has established a fair issue to be tried as to the effect of ratification within the provisions of Article 29, s. 4, sub-s. 3 of the Constitution. My view is that it is so established, but I express no view on the weight of the arguments.
As to the second question, whether the balance of convenience justifies the granting of an interlocutory injunction, the balance of convenience in the context of the Constitution is exceptional and considerations different to those of the ordinary injunction apply. If the interlocutory injunction sought by the plaintiff were not granted, then the Government’s act of ratification would deprive this Court of its jurisdiction or power to grant to the plaintiff the remedies necessary to protect his constitutional rights. If that submission is correct, a fair argument has been made out and it constitutes what, in my view, would justify making an exception, given a reluctance to interfere with the Executive. I am satisfied that in order to do justice to the parties the injunction should continue.

Henchy J.
I agree.

Griffin J.
I agree.

Hederman J.
I agree.

McCarthy J.
I agree.

Finlay C.J.
9th April 1987

Part of the plaintiff’s appeal in this case is against the dismiss by the High Court of his claim for a declaration that the European Communities (Amendment) Act, 1986, is invalid having regard to the provisions of the Constitution. The Court in this decision deals with that issue only.
The European Communities (Amendment) Act, 1986, (“the Act of 1986”) purports to amend the European Communities Act, 1972, and to bring into the domestic law of the State Article 3, s. 1; Title II; Article 31; Article 32; and in part Articles 33 and 34 of the Single European Act (“the SEA”). The Act of 1986 was enacted by the Oireachtas in December, 1986, but does not come into effect until the making of a statutory order which has not yet been made. The other provisions of the SEA largely consisting of the provisions on European cooperation in the sphere of foreign policy contained in Title III are not affected by the Act of 1986 and do not fall to be dealt with in this decision of the Court.
In the High Court the plaintiff’s claim was rejected on the grounds that because the SEA had not yet been ratified by the State and because the Act of 1986 had not yet been brought into effect the plaintiff failed to establish that he had a locus standi to challenge the validity of the Act of 1986 having regard to the provisions of the Constitution. The Court is satisfied, in accordance with the principles laid down by the Court in Cahill v. Sutton [1980] I.R. 269, that in the particular circumstances of this case where the impugned legislation, namely the Act of 1986, will if made operative affect every citizen, the plaintiff has a locus standi to challenge the Act notwithstanding his failure to prove the threat of any special injury or prejudice to him, as distinct from any other citizen, arising from the Act.
The net issue therefore here arising is as to whether the provisions of Article 29, s. 4, sub-s. 3 of the Constitution authorise the ratification by the State of the provisions of the SEA intended to amend the Treaties establishing the European Communities. These provisions are the Articles and Title of the SEA referred to in the Act of 1986. Article 29, s. 4, sub-s. 3 reads as follows:”
“3 The State may become a member of the European Coal and Steel Community (established by Treaty signed at Paris on the 18th day of April, 1951), the European Economic Community (established by Treaty signed at Rome on the 25th day of March, 1957) and the European Atomic Energy Community (established by Treaty signed at Rome on the 25th day of March, 1957). No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State necessitated by the obligations of membership of the Communities or prevents laws enacted, acts done or measures adopted by the Communities, or institutions thereof, from having the force of law in the State.”
This provision was enacted as the Third Amendment to the Constitution by virtue of a referendum held in 1972 and permitted the State to join the European Communities. The Court is satisfied that the first sentence of this provision authorised the State to join three Communities identified as to each by reference to the Treaty which established it.
It is clear and was not otherwise contended by the defendants that the ratification by the State of the SEA (which has not yet taken place) would not constitute an act “necessitated by the obligations of membership of the Communities”. It accordingly follows that the second sentence in Article 29, s. 4, sub-s. 3 of the Constitution is not relevant to the issue as to whether the Act of 1986 is invalid having regard to the provisions of the Constitution. It was contended on behalf of the plaintiff that any amendment of the Treaties establishing the Communities made after the 1st January, 1973, when Ireland joined those Communities would require a further amendment of the Constitution. It was contended on behalf of the defendants that the authorisation contained in the first sentence of Article 29, s. 4, sub-s. 3 was to join Communities which were established by Treaties as dynamic and developing entities and that it should be interpreted as authorising the State to participate in and agree to amendments of the Treaties which are within the original scope and objectives of the Treaties. It is the opinion of the Court that the first sentence in Article 29, s. 4, sub-s. 3 of the Constitution must be construed as an authorisation given to the State not only to join the Communities as they stood in 1973, but also to join in amendments of the Treaties so long as such amendments do not alter the essential scope or objectives of the Communities. To hold that the first sentence of Article 29, s. 4, sub-s. 3 does not authorise any form of amendment to the Treaties after 1973 without a further amendment of the Constitution would be too narrow a construction; to construe it as an open-ended authority to agree, without further amendment of the Constitution, to any amendment of the Treaties would be too broad. The issue then arises as to whether the effect of the amendments to the Treaties proposed by the SEA is such as would bring the introduction of them into the domestic law by the Act of 1986 outside the authorisation of Article 29, s. 4, sub-s. 3 as above construed.
The only provisions affecting the European Coal and Steel Community proposed in the SEA are Articles 4 and 5 thereof, and the only provisions affecting the European Atomic Energy Community proposed in the SEA are Articles 26 and 27 thereof. These Articles have essentially the same effect as Articles 11 and 12 with regard to the European Economic Community (the EEC). All of these Articles give a power to the European Council at the request of the Court of Justice of the European Communities to attach to that Court a court of first instance for the trial of certain classes of cases. It is sufficient, therefore, for the purpose of this decision to consider the EEC Treaty (the Treaty of Rome) and the proposed amendments and additions to it.
The Act of 1986 enjoys the presumption of constitutional validity, so the onus is on the plaintiff to show that it is in some respect invalid, having regard to the provisions of the Constitution. The contention made on behalf of the plaintiff on this issue was under four headings.
(1) Changes which are proposed in the decision-making process of the Council in six instances from unanimity to a qualified majority were asserted to be an unauthorised surrender of sovereignty.
(2) The power given to the Council by unanimous decision at the request of the Court of Justice of the European Communities (the European Court) to attach to it a court of first instance with an appeal from the latter on questions of law to the European Court was said to be an unauthorised surrender of the judicial power.
(3) It is submitted that Article 20 dealing with cooperation in economic and monetary policy, Article 21 dealing with social policy, Article 23 dealing with economic and social cohesion, Article 24 dealing with research and technological development, and Article 25 dealing with the environment, all add new objectives to the Treaty of Rome which make them additions to the original Treaty which are outside the existing constitutional authorisation.
(4) It is submitted that powers granted to the Council by Articles 18 and 21 of the SEA would enable it by a qualified majority to direct the approximation of laws concerning the provision of services and concerning the working environment, health and safety of workers which amount to new powers outside the existing constitutional authorisation and which could encroach on existing guarantees of fundamental rights under the Constitution.
In discharging its duty to interpret and uphold the Constitution the Court must consider the essential nature of the scope and objectives of the Communities as they must be deemed to have been envisaged by the people in enacting Article 29, s. 4, sub-section 3. It is in the light of that scope and those objectives that the amendments proposed by the SEA fall to be considered.
Article 2 of the Treaty of Rome provided as follows:”
“The Community shall have as its task, by establishing a common market and progressively approximating the economic policies of Member States, to promote throughout the Community a harmonious development of economic activities, a continuous and balanced expansion, an increase in stability, an accelerated raising of the standard of living and closer relations between the States belonging to it.”
Article 3 of that Treaty set out what the activities of the Community should include for the purposes stated in Article 2, and amongst these activities are:”
“(c) the abolition, as between Member States, of obstacles to freedom of movement for persons, services and capital;
(f) the institution of a system ensuring that competition in the common market is not distorted;
(g) the application of procedures by which the economic policies of Member States can be coordinated and disequilibria in their balances of payments remedied;
(h) the approximation of laws of Member States to the extent required for the proper functioning of the common market;
(i) the creation of a European Social Fund in order to improve employment opportunities for workers and to contribute to the raising of their standard of living;
(j) the establishment of a European Investment Bank to facilitate the economic expansion of the Community by opening up fresh resources;
(k) the association of the overseas countries and territories in order to increase trade and to promote jointly economic and social development.”
For the purpose of attaining its objectives and implementing its provisions the Treaty of Rome established certain institutions. Amongst these is the Court of Justice of the European Communities which was established to ensure that in the interpretation and the application of the Treaty the law is observed. The decisions of that Court on the interpretation of the Treaty and on questions covering its implementation take precedence, in case of conflict, over the domestic law and the decisions of national courts of Member States.
Another institution of the EEC is the Council, whose decisions have primacy over domestic law and which for the purpose of ensuring that the objectives of the Treaty are attained is charged with ensuring the co-ordination of the general economic policies of the Member States. Some of its decisions must be unanimous, others may be taken by qualified majority, and still others by simple majority. The capacity of the Council to take decisions with legislative effect is a diminution of the sovereignty of Member States, including Ireland, and this was one of the reasons why the Third Amendment to the Constitution was necessary. Sovereignty in this context is the unfettered right to decide: to say yes or no. In regard to proposals coming before the Council which the State might oppose, unanimity is a valuable shield. On the other hand, in proposals which the State might support, qualified or simple majority is of significant assistance. In many instances the Treaty of Rome provided a requirement that a decision on a particular topic should be unanimous, but would after the expiry of a particular stage or of the transitional period require only a qualified majority. The Community was thus a developing organism with diverse and changing methods for making decisions and an inbuilt and clearly expressed objective of expansion and progress, both in terms of the number of its Member States and in terms of the mechanics to be used in the achievement of its agreed objectives.
Having regard to these considerations, it is the opinion of the Court that neither the proposed changes from unanimity to qualified majority, nor the identification of topics which while now separately stated, are within the original aims and objectives of the EEC, bring these proposed amendments outside the scope of the authorisation contained in Article 29, s. 4, sub-s. 3 of the Constitution. As far as Ireland is concerned, it does not follow that all other decisions of the Council which now require unanimity could, without a further amendment of the Constitution, be changed to decisions requiring less than unanimity.
The power of the Council to attach to the European Court a court of first instance with limited jurisdiction which would be subject to appeal on questions of law to the European Court, does not affect in any material way the extent to which the judicial power has already been ceded to the European Court. This Court is therefore of the opinion that the establishment of an additional court, if it occurs, has not been shown to exceed the constitutional authorisation.
The existing Treaty contains various provisions dealing with the approximation of laws in general, with freedom for the provision of services in the Member States, with working conditions and with the prevention of occupational accidents and diseases. The proposals contained in Articles 18 and 21 of the SEA have not been shown to contain new powers given to the Council which alter the essential character of the Communities. Neither has it been shown that they create a threat to fundamental constitutional rights. Therefore, it is the opinion of the Court that the appeal under this heading also fails.
For the foregoing reasons, it has not been shown to the satisfaction of the Court that any of the provisions of the European Communities (Amendment) Act, 1986, are invalid having regard to the provisions of the Constitution.
On the remaining issues of the appeal the following judgments were then delivered:”

In addition to the appeal against the dismiss of his claim for a declaration that the European Communities (Amendment) Act, 1986, is invalid having regard to the provisions of the Constitution, which has been dealt with in the decision of the Court, the plaintiff has appealed against the dismiss of a claim for a declaration and injunction restraining the Government from ratifying the Single European Act (“the SEA”). The grounds for that claim, other than those already dealt with by the decision concerning the Act of 1986, are that the provisions contained in Article 30 under Title III of the SEA are inconsistent with the Constitution.
These provisions are entitled “Provisions on European cooperation in the sphere of foreign policy.” They do not purport to constitute amendments of or additions to any of the Treaties establishing the Communities. Adherence to these provisions of the SEA by the State could not be an act necessitated by any obligation of membership by the State of the Communities nor could such provisions be laws enacted, acts done or measures adopted by the Communities or institutions thereof. Article 29, s. 4, sub-s. 3 of the Constitution accordingly does not apply to the provisions concerning European Political Cooperation (EPC) contained in Article 30 under Title III of the Single European Act.
Article 29, s. 6 of the Constitution therefore applies to those provisions since they can derive no immunity from it by virtue of Article 29, s. 4, sub-s. 3 and they do not become part of the domestic law of the State unless and until the Oireachtas validly so determines. The Oireachtas has passed no law purporting to bring these provisions into the domestic law of the State. The provisions of the SEA contained in Article 30 therefore rank as part of an international treaty negotiated by the Government but not yet ratified, the terms of which have been approved by resolution of Dail Eireann but which has not been brought into our domestic law.
Article 30 of the SEA is divided into twelve sub-articles. It constitutes an agreement between states adhering to the SEA, described in Title III as”High Contracting Parties”, which are in fact the Member States of the Communities. From the preamble to the SEA and from the terms of Article 30 themselves, it is clear that the agreements contained in that Article are arrived at with the possible ultimate objective of a form of European political union between the Member States of the Communities as an addition to the existing economic union between them. There can be no doubt that if that aim were ever achieved it would constitute an alteration in the essential scope and objectives of the Communities to which Ireland could not agree without an amendment of the Constitution. Article 30 in summary provides for:”
1. Cooperation in the formation of foreign policy between the parties, with the aim of formulating and putting into effect a joint foreign policy.
2. Cooperation with the Commission of the Communities.
3. Cooperation with the Parliament of the Communities.
4. Cooperation on European security.
5. The adoption of common positions at international conferences and in international institutions.
6. The state holding the Presidency of the Council of the Communities at any time shall hold the Presidency of the EPC which shall be responsible for initiating action and representing the position of Member States with third countries in relation to EPC activities.
7. A Secretariat is to be established, the members of which will have diplomatic status.
The detailed terms of these provisions impose obligations to consult; to take full account of the position of other partners; to ensure that common principles and objectives are gradually developed and defined; as far as possible to refrain from impeding the formation of a consensus and the joint action which this could produce; to be ready to cooperate policies more closely on the political aspects of security. They do not impose any obligations to cede any national interest in the sphere of foreign policy. They do not give to other High Contracting Parties any right to override or veto the ultimate decision of the State on any issue of foreign policy. They impose an obligation to listen and consult and grant a right to be heard and to be consulted.
The net issue which arises in this part of this appeal is whether, having regard to the general nature and effect of Article 30 of the SEA and its status in relation to our law as above outlined, this Court is entitled under the Constitution, at the instance of the plaintiff, to intervene so as to prevent the Government from ratifying this treaty. It is an issue of a fundamental nature, the importance of which, in my view, transcends by far the significance of the provisions of the SEA. The separation of powers between the legislature, the executive and the judiciary, set out in Article 6 of the Constitution, is fundamental to all its provisions. It was identified by the former Supreme Court in Buckley and Others (Sinn Féin) v. Attorney General [1950] I.R. 67 and has since been repeatedly acknowledged and implemented by this Court. It involves for each of the three constitutional organs concerned not only rights but duties also; not only areas of activity and function, but boundaries to them as well.
With regard to the legislature, the right and duty of the Courts to intervene is clear and express.
1. Article 15, s. 4, Article 34, s. 3, sub-s. 2 and Article 34, s. 4, sub-s. 4 of the Constitution vest in the High Court and, on appeal, in this Court the right and duty to examine the validity of any impugned enactment of the Oireachtas and, if it be found inconsistent with the Constitution, to condemn it in whole or in part.
2. Article 26 of the Constitution confers on this Court the duty, upon the reference to it by the President of a Bill passed or deemed to have been passed by both houses of the Oireachtas, to decide whether such Bill or any specified provision or provisions of such Bill is or are repugnant to the Constitution or to any provision thereof.
3. The Courts do not, in my opinion, have any other right to intervene in the enactment of legislation by the Oireachtas.
With regard to the executive, the position would appear to be as follows:” This Court has on appeal from the High Court a right and duty to interfere with the activities of the executive in order to protect or secure the constitutional rights of individual litigants where such rights have been or are being invaded by those activities or where activities of the executive threaten an invasion of such rights.
This right of intervention is expressly vested in the High Court and Supreme Court by the provisions of Article 34, s. 3, sub-s. 1 and Article 34, s. 4, sub-s. 3 of the Constitution and impliedly arises from the form of the judicial oath contained in Article 34, s. 3, sub-s. 1 of the Constitution.
Article 29, s. 4, sub-s. 1 of the Constitution provides:”
“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, s. 2 of the Constitution provides:”
“The executive power of the State shall, subject to the provisions of this Constitution, be exercised by or on the authority of the Government.”
The combined effect of these two constitutional provisions clearly is that the executive power of the State in connection with its external relations shall be exercised by or on the authority of the Government but that in so exercising that power the Government is subject to the provisions of the Constitution.
Article 29, s. 5, sub-s. 1 provides:”
“Every international agreement to which the State becomes a party shall be laid before Dail Eireann .”
Article 29, s. 5, sub-s. 2 provides:”
“The State shall not be bound by any international agreement involving a charge upon public funds unless the terms of the agreement shall have been approved by Dail Eireann .”
I have already referred to the provisions of s. 6 of Article 29 of the Constitution vesting in the Oireachtas the right to determine the extent and manner in which an international agreement shall be part of the domestic law of the State. From these constitutional provisions, it seems reasonable to infer a scheme under the Constitution that by virtue of Article 29, s. 5, sub-s. 1, Dail Eireann should have a primary control over the exercise by the Government of its executive power in relation to entering into international agreements, and that under Article 29, s. 5, sub-s. 2 no international agreement of major importance being one that involved a charge upon public funds could bind the State without the approval of Dail Eireann as to its terms. This scheme is consistent with the provisions of Article 28, s. 3, sub-s. 1 which provide:”
“War shall not be declared and the State shall not participate in any war save with the assent of Dail Eireann .”
A declaration of war and participation in war is necessarily part and parcel of the external relations of the State. This provision again emphasises the control by Dail Eireann of the Government in its exercise of executive power in external relations.
The overall provisions concerning the exercise of executive power in external relations do not contain any express provision for intervention by the Courts. There is nothing in the provisions of Articles 28 and 29 of the Constitution, in my opinion, from which it would be possible to imply any right in the Courts in general to interfere in the field or area of external relations with the exercise of an executive power. This does not mean that the executive is or can be without control by the Courts in relation to carrying out executive powers even in the field of external relations. In any instance where the exercise of that function constituted an actual or threatened invasion of the constitutional rights of an individual, the Courts would have a right and duty to intervene.
In this case where the plaintiff adduced no evidence at the hearing in the High Court but relied on matters pleaded and not denied, I am satisfied that he has not established any actual or threatened invasion of any constitutional right enjoyed by him as an individual arising from the terms of Article 30 of the Single European Act.
It was submitted that, whereas the plaintiff acknowledged that the Courts had no function to intervene with the Executive in the formation or statement of policy, either in external relations or in any other part of Government activity, a difference arose where the declaration of policy involved, as it is stated Article 30 of the SEA involves, a commitment to other states for consultation, discussion and an endeavour to coincide policies. I cannot accept this distinction. It appears probable that under modern conditions a state seeking cooperation with other states in the sphere of foreign policy must be prepared to enter into not merely vague promises but actual arrangements for consultation and discussion. I can find no warrant in the Constitution for suggesting that this activity would be inconsistent with the Constitution and would, as is suggested, presumably in each individual instance, require a specific amendment of the Constitution.
I am confirmed in the view which I have reached with regard to the constitutional limits of the intervention by the Courts in the exercise by the Government of its executive functions by the decision of this Court in Boland v. An Taoiseach [1974] I.R. 338. FitzGerald C.J., in the course of his judgment in that case, at p. 362, stated as follows:”
“Consequently, in my opinion, the Courts have no power, either express or implied, to supervise or interfere with the exercise by the Government of its executive functions, unless the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred on it by the Constitution.”
In the course of his judgment in the same case, Budd J., at p. 366, stated as follows:”
“The judiciary has its own particular ambit of functions under the Constitution. Mainly, it deals with justiciable controversies between citizen and citizen or the citizen and the State and matters pertaining thereto. Such matters have nothing to do with matters of State policy. Viewing the matter from another angle, as to the nature of any relief that could properly be claimed in proceedings of this nature, I ask whether it could be said that the Courts could be called upon to pronounce adversely or otherwise on what the Government proposed to do on any matter of policy which it was in the course of formulating. It would seem that that would be an attempted interference with matters which are part of the functions of the Executive and no part of the functions of the judiciary. From a practical standpoint alone, what action would be open to the Courts? The Courts could clearly not state that any particular policy ought not to be pursued.
The Constitution goes further in indicating how far the policies involved in government decisions as to policy such as this are removed from the purview of the Courts in that it makes the Government responsible to the Dáil which can support or oppose those policies and review them. Ultimately, there is the responsibility of the Government to the people who must be consulted by way of referendum where any change of the Constitution is contemplated.”
Griffin J., in the course of his judgment in that case, at p. 370, stated as follows:”
“In the event of the Government acting in a manner which is in contravention of some provisions of the Constitution, in my view it would be the duty and the right of the Courts, as guardians of the Constitution, to intervene when called upon to do so if a complaint of a breach of any of the provisions of the Constitution is substantiated in proceedings brought before the Courts.”
I do not consider that it has been established that adherence by the State to the terms of Article 30 of the SEA amounts, in the words of FitzGerald C.J., “to a clear disregard by the Government of the powers and duties conferred on it by the Constitution.” Furthermore, I interpret the decision of Griffin J. in Boland v. An Taoiseach [1974] I.R. 338 as being consistent with the view already expressed by me that where an individual person comes before the Courts and establishes that action on the part of the Executive has breached or threatens to breach one or other of his constitutional rights that the Courts must intervene to protect those rights but that otherwise they can not and should not.
I, therefore, am satisfied that this appeal on this issue should be dismissed.

Walsh J.
This part of the proceedings deals only with Title III of the Single European Act. The heading of that title is “Provisions on European cooperation in the sphere of foreign policy.” This title is not included in the European Communities (Amendment) Act, 1986. Neither is the preamble to the Single European Act incorporated in or referred to by the said Act. The terms of the preamble are however relevant to the issue now before the Court concerning Title III. In its first paragraph the preamble refers to the will to continue work to transform relations between the Member States of the European Communities into a European Union. It goes on to say that the signatories are resolved to implement “this European Union” firstly on the basis of the Communities operating according to their own rules and, secondly, of European Cooperation among the Signatory States “in the sphere of foreign policy” and to invest this union “with the necessary means of action”. It is abundantly clear, and indeed was not contested in the present case, that so far as Ireland is concerned the creation of a European Union which would include Ireland would require an amendment of the Constitution. Title III of the Single European Act, which in reality is itself a separate treaty although not so in form, does not purport to create a European Union; but on the other hand openly acknowledges that such is the objective.
The preamble goes on to state that the parties are determined “to work together to promote democracy on the basis of the fundamental rights recognised in the constitutions and laws of the Member States, in the Convention for the Protection of Human Rights and Fundamental Freedoms and the European Social Charter, notably freedom, equality and social justice.” So far as the latter aspirations are concerned no objection could be taken to them having regard to the fact that the preamble of the Constitution of Ireland sets out that one of the aims of the Constitution is to safeguard the dignity and freedom of the individual and to assist in establishing concord with other nations. Article 5 of the Constitution says that Ireland is a sovereign, independent and democratic state. Article 29, s. 1 of the Constitution contains the affirmation that Ireland is devoted to the ideal of peace and friendly co-operation amongst nations founded on international justice and international morality (see the Irish language text of the Constitution).
The preamble to the Single European Act further refers to “the responsibility incumbent upon Europe to aim at speaking ever increasingly with one voice and to act with consistency and solidarity in order more effectively to protect its common interests and independence, in particular to display the principles of democracy and compliance with the law and with human rights to which they are attached, so that together they may make their own contribution to the preservation of international peace and security in accordance with the undertaking entered into by them within the
framework of the United Nations Charter.” The sentiments there expressed are also unexceptionable as a general objective of the European Community and of the individual Member States, and as such would appear to be in no way incompatible with the aims and aspirations of the Constitution in those fields.
It is however the treaty provisions set out in Title III which have given rise to the plaintiff’s claim for an order to restrain the Government from ratifying the treaty already executed by them. Article 33, s. 1 of the Single European Act provides that it will be ratified “by the High Contracting Parties in accordance with their respective constitutional requirements.” In essence therefore this part of the case is concerned with whether or not, as a matter of Irish law, the method of ratification proposed by the Government is in accordance with the Constitution, namely, whether it can now be ratified on the basis that its terms have been approved in their entirety by Dail Eireann in accordance with Article 29, s. 5, sub-s. 2 of the Constitution.
This brings me to a consideration of the relevant provisions of the Constitution and the treaty-making powers of the executive organ of government (the “Government”). Article 6 of the Constitution refers to “all powers of government” and goes on to differentiate between the legislative, executive and judicial organs of government. It refers to the powers of government as being derived “under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.” It must follow therefore that all the powers of government are to be exercised according to the requirements of the common good. Section 2 of the same Article provides that these powers of government are exercisable”only by or on the authority of the organs of State established by this Constitution.” So far as external or foreign relations are concerned Article 29, s. 4, sub-s. 1 of the Constitution provides that “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, s. 2 provides that “the executive power of the State shall, subject to the provisions of this Constitution, be exercised by or on the authority of the Government.”
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 from the restraints of the Constitution or to transfer their powers 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. To the judicial organ of government alone is given the power conclusively to decide if there has been a breach of constitutional restraints.
The powers of external sovereignty on the part of the State do not depend on the affirmative grant of this in the Constitution. They are implicit in the provisions of Article 5 of the Constitution. The State would not be completely sovereign if it did not have in common with other members of the family of nations the right and power in the field of international relations equal to the right and power of other states. These powers of the State include the power to declare war or to participate in a war, to conclude peace, to make treaties, and maintain diplomatic relations with other states.
However the exercise of the power is limited. In the first instance the Government alone has the power, as already mentioned, to speak and listen as the representative of the State, and, subject to the constitutional restraints, to make treaties. Article 28, s. 3, sub-s. 1 of the Constitution provides that war shall not be declared and the State shall not participate in any war save with the assent of Dail Eireann . That is one express constitutional prohibition on the exercise by the Government of its powers in its international relations. So far as treaties or international agreements are concerned Article 29, ss. 5 and 6 deal further with the matter. They provide that (a) every international agreement to which the State becomes a party shall be laid before Dail Eireann , (b) the State shall not be bound by any international agreement involving a charge upon public funds unless the terms of the agreement shall have been approved by Dail Eireann (save where the agreements or conventions are of a technical and administrative character) and (c) no international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas. As a general rule neither the Government nor the Oireachtas can be restrained until their intentions are translated into acts. In proper cases they are subject to judicial cognisance, and judicial review and restraint. Thus statements of the Government policy as such are not restrainable by the Courts. But if the policies are translated, for example, into treaties then different considerations arise.
In the present case counsel for the defendants submitted that even in the case of treaties the Courts are not empowered to interfere unless the treaties are translated into domestic legislation. To do so, the defendants asserted, would be for one of the organs of State to trespass upon the functions of another in a manner unauthorised by the Constitution. The defendants relied upon the decision of the former Supreme Court of Justice in Buckley and Others (Sinn Féin) v. Attorney General [1950] I.R. 67 in support of this proposition. That was a case in which legislation was impugned. The power to review legislation is expressly granted by the Constitution. What the Court was doing in that case was to interfere in what it regarded and described at p. 84 of the report as “an unwarrantable interference by the Oireachtas with the operation of the Courts in a purely judicial domain.” It does not follow from that conclusion that the actions of the executive can never be reviewed by the Courts even in respect of matters which are on their face apparently within the exclusive domain of the Government. It is beyond dispute and well settled in many cases that one of the functions of the Courts is to uphold the Constitution. That includes restraining the Government from freeing themselves or purporting to free themselves from the restraints of the Constitution.
This issue was discussed at some length in this Court in the case of Boland v. An Taoiseach [1974] I.R. 338. The subject of that litigation was what became known as the “Sunningdale Agreement”, and in particular clause 5 thereof. It was held by this Court that it was not an agreement or treaty but a communiqué containing declarations and assertions of policy, and therefore was not restrainable. In the course of his judgment in that case FitzGerald C.J. at p. 362 stated:”
“Consequently, in my opinion, the Courts have no power, either express or implied, to supervise or interfere with the exercise by the Government of its executive functions, unless the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred upon it by the Constitution.”
O’Keeffe P. in the course of his judgment at p. 363 stated that it was clearly not within the competence of the Government to agree to depart from the terms of the Constitution. He found that the document in question was not such an agreement but simply a statement of policy. Budd J. stated, and in my view correctly so, that the Courts could clearly not state that any particular policy ought not to be pursued and was of opinion that nothing more than a declaration of policy had been made and that there was not any agreement between the parties. It is to be inferred from his judgment that if an agreement were in existence different considerations would apply. Griffin J. in his judgment was also of opinion that the stage had not been reached in that case where the Courts could intervene as no formal agreement had been reached between the parties, and furthermore that if the contemplated agreement were reached it would have led to legislation which itself could be the subject of a constitutional challenge in the Courts. Pringle J. agreed that the appeal in that case should be dismissed for the reasons stated in the judgments, and that the Courts had no power to interfere with the exercise by the Government of its executive functions in the circumstances relied upon by the plaintiff. That, as I understand it, meant that Pringle J. was in agreement with his colleagues that nothing beyond the pronouncemment of a policy had taken place and that therefore the Courts could not intervene at that stage.
What is at issue in the present case is not simply a declaration of policy but an actual treaty. As it will obviously involve a charge upon the public funds the requirement of the Constitution in Article 29, s. 5, sub-s. 2, that it should be approved by Dail Eireann , has been complied with. The State is not yet bound by this Treaty even though it has been laid before Dail Eireann because its binding effect depends upon ratification in accordance with Irish “constitutional requirements”. The question therefore is whether the State in attempting to ratify this Treaty is endeavouring to act free from the restraints of the Constitution.
The object of this Treaty, so far as Ireland is concerned, is to bind this State in its relations with the other Member States of the European Communities. Adherence to the Treaty, or indeed the Treaty itself, is not in any sense an obligation arising from or necessitated by membership of the European Communities. I do not accept the submission made on behalf of the defendants that unless and until the terms of the Treaty are translated into domestic legislation the Court has no competence in the matter. In international law the State in entering into a treaty must act in good faith. That is why the provision in the Treaty itself for ratification in accordance with the constitutional requirements of this State is so important. If some part or all of the Treaty were subsequently translated into domestic legislation and found to be unconstitutional it would avail the State nothing in its obligations to its fellow members. It would still be bound by the Treaty. Therefore if the ratification of this Treaty under the Irish Constitution requires a referendum to amend the Constitution to give effect to it, the fact that the State did not hold a referendum would not prevent the State from being bound in international law by the Treaty. If a referendum were to be held or had been held and the Treaty were rejected then the State would not be in breach of its international obligations because it would not have ratified the Treaty. It is not for the other states to the Treaty to satisfy themselves that the Government of Ireland observed its own constitutional requirements. This is solely a matter for the Government of Ireland and if it fails to take the necessary steps, the State cannot afterwards be heard to plead that it is not bound by the Treaty.
The Treaty does not purport to commit the State to agreeing to the establishment of a European Union of which Ireland would be a part. That is manifestly something to which the Government could not commit the State. What the Treaty does is to commit the State to pursuing a policy which has, inter alia, as one of its objectives the transformation of the relations of Ireland with the other Member States of the European Communities into a European Union. If this were simply a unilateral statement of policy on the part of the Government or part of a multilateral declaration of policy to the like end it could not be called into question in this Court. As was pointed out by Budd J. in Boland v. An Taoiseach [1974] I.R. 338 at p. 366 it would, as such, be outside “the purview of the Courts in that it makes the Government responsible to the Dáil which can support or oppose those policies and review them.” The present Treaty provisions go much further than that and, notwithstanding that, they have been approved by Dail Eireann . As was pointed out in the decision of the Court in the first part of this case the essential nature of sovereignty is the right to say yes or to say no. In the present Treaty provisions that right is to be materially qualified.
It commits the State, and therefore all future Governments and the Oireachtas, to the other Member States to do the following things:”
1. To endeavour to formulate and to implement a European foreign policy.
2. To undertake to inform or consult the other Member States on any foreign policy matters of general interest (not just of common interest) so as to ensure that the combined influence of the States is exercised as effectively as possible through co-ordination, the convergence of their positions and the implementation of joint action.
3. In adopting its position and in its national measures the State shall take full account of the position of the other Member States and shall give due consideration to the desirability of adopting and implementing common European positions.
4. The State will ensure that with its fellow Member States common principles and objectives are gradually developed and defined.
5. The State shall endeavour to avoid any action or position which impairs the effectiveness of the Community States as a cohesive force in international relations or within international organisations.
6. The State shall so far as possible refrain from impeding the formation of a consensus and the joint action which this could produce.
7. The State shall be ready to co-ordinate its position with the position of the other Member States more closely on the political and economic aspects of security.
8. The State shall maintain the technological and industrial conditions necessary for security of the Member States and it shall work to that end at national level and, where appropriate, within the framework of the competent institutions and bodies.
9. In international institutions and at international conferences which the State attends it shall endeavour to adopt a common position with the other Member States on subjects covered by Title III.
10. In international institutions and at international conferences in which not all of the Member States participate the State, if it is one of those participating, shall take full account of the positions agreed in European Political Cooperation.
One other matter expressed in somewhat ambiguous terms at Article 6 (c) in Title II is as follows:”
“Nothing in this Title shall impede closer cooperation in the field of security between certain of the High Contracting Parties within the framework of the Western European Union or the Atlantic Alliance.”
One interpretation of that is that the Member States who are members of the Western European Union or the Atlantic Alliance (Ireland is not a member of either) can develop their own co-operation in those fields without being impeded by anything in Title III of this Treaty. However, it can also amount to an undertaking on the part of this State that in the exercise of whatever powers it may have under Title III it shall do nothing to impede such co-operation in the field of security in the framework of the Western European Union or the Atlantic Alliance on the part of those Member States which belong to those institutions.
All of these matters impinge upon the freedom of action of the State not only in certain areas of foreign policy but even within international organisations such as the United Nations or the Council of Europe. That latter effect of the Treaty could amount to the establishment of combinations within these organisations. In touching upon the maintenance of the technological and industrial conditions necessary for security the Treaty impinges upon the State’s economic, industrial and defence policies. The obligation on the High Contracting Parties after five years to examine whether any revision of Title III is required does not give the Treaty a temporary character.
I mentioned earlier in this judgment that the Government is the sole organ of the State in the field of international relations. This power is conferred upon it by the Constitution which provides in Article 29, s. 4 that this power shall be exercised by or on the authority of the Government. In this area the Government must act as a collective authority and shall be collectively responsible to Dail Eireann and ultimately to the people. In my view it would be quite incompatible with the freedom of action conferred on the Government by the Constitution for the Government to qualify that freedom or to inhibit it in any manner by formal agreement with other States as to qualify it. This view is, in my opinion, corroborated by the provisions of Article 29, s. 4, sub-s. 2 of the Constitution which provides:”
“For the purpose of the exercise of any executive function of the State in or in connection with its external relations, the Government may to such extent and subject to such conditions, if any, as may be determined by law, avail of or adopt any organ, instrument, or method of procedure used or adopted for the like purpose by the members of any group or league of nations with which the State is or becomes associated for the purpose of international co-operation in matters of common concern.”
The history of this particular provision is too well known to require elaboration but the wording is such that for the particular purpose of that provision the European Economic Community is in my view such a group or league of nations with which the State is associated for the purpose of international co-operation in matters of common concern. However the limitations are very clear. This provision relates solely to the exercise of the executive functions of this State in its external relations and is subject to such conditions, if any, as may be determined by law. Furthermore it simply provides for the adoption of any organ or instrument or method of procedure for the exercise of the executive functions of the State. It does not require prior consultation with any other State as to the policy itself. It also provides that there must be enabling legislation. The framers of the Constitution, and the people in enacting it, clearly foresaw the possibility of being associated with groups of nations for the purpose of international co-operation in matters of common concern and they provided for the possibility of the adoption of a common organ or instrument. Equally clearly they refrained from granting to the Government the power to bind the State by agreement with such groups of nations as to the manner or under what conditions that executive function of the State would be exercised.
In enacting the Constitution the people conferred full freedom of action upon the Government to decide matters of foreign policy and to act as it thinks fit on any particular issue so far as policy is concerned and as, in the opinion of the Government, the occasion requires. In my view, this freedom does not carry with it the power to abdicate that freedom or to enter into binding agreements with other States to exercise that power in a particular way or to refrain from exercising it save by particular procedures, and so to bind the State in its freedom of action in its foreign policy. The freedom to formulate foreign policy is just as much a mark of sovereignty as the freedom to form economic policy and the freedom to legislate. The latter two have now been curtailed by the consent of the people to the amendment of the Constitution which is contained in Article 29, s. 4, sub-s. 3 of the Constitution. If it is now desired to qualify, curtail or inhibit the existing sovereign power to formulate and to pursue such foreign policies as from time to time to the Government may seem proper, it is not within the power of the Government itself to do so. The foreign policy organ of the State cannot, within the terms of the Constitution, agree to impose upon itself, the State or upon the people the contemplated restrictions upon freedom of action. To acquire the power to do so would, in my opinion, require a recourse to the people “whose right it is” in the words of Article 6 “. . . in final appeal, to decide all questions of national policy, according to the requirements of the common good.” In the last analysis it is the people themselves who are the guardians of the Constitution. In my view, the assent of the people is a necessary prerequisite to the ratification of so much of the Single European Act as consists of title III thereof. On these grounds I would allow this appeal.

Henchy J.
The Single European Act (“the SEA”) is something of a misnomer, for it is a treaty rather than an instrument with the legislative connotations usually attaching to an Act. As a treaty it has a dual purpose: (1) to amend and supplement the Treaties on which the European Communities are founded; and (2) to put on a formal basis co-operation between the Member States in the field of foreign policy. It is with the latter objective, which is dealt with in Title III of the SEA, that we are concerned in this part of the plaintiff’s appeal.
Title III (which is headed “Provisions on European cooperation in the sphere of foreign policy”) deals with matters which are outside the scope of the existing treaties. This is evidenced by the two opening paragraphs of the preamble to the SEA:”
“MOVED by the will to continue the work undertaken on the basis of the Treaties establishing the European Communities and to transform relations as a whole among their States into a European Union, in accordance with the Solemn Declaration of Stuttgart of 19 June 1983,
RESOLVED to implement this European Union on the basis, firstly, of the Communities operating in accordance with their own rules and, secondly, of European Cooperation among the Signatory States in the sphere of foreign policy and to invest this union with the necessary means of action.”
It is clear, therefore, that, so far as Title III is concerned, Ireland’s constitutional authority for ratifying the SEA is not to be found in Article 29, s. 4, sub-s. 3 of the Constitution, which is the constitutional amendment which allowed Ireland to become a member of the European Communities. One must look elsewhere in the Constitution to see if there are express or implied provisions which would make Ireland’s ratification of Title III consistent with the Constitution.
It is first necessary to make clear the scope and objective of Title III, all of which is contained in Article 30 of the SEA. Article 30, s. 1 provides that the Member States of the European Communities “shall endeavour to formulate and implement a European foreign policy.” Thus, unlike the main part of the SEA, Article 30 is not intended to be an amendment of the existing Treaties but sets the Member States on a course leading to an eventual European Union in the sphere of foreign policy. Pending the attainment of that objective, which is outside the stated aims of the existing Treaties, the Member States become bound to formulate and conduct their foreign policy according to the terms stated in Article 30. What had been no more than an objective declared by the Stuttgart Declaration of 1983 is now to become a matter of solemn treaty.
The essence of this fundamental transformation in the relations between the Member States of the European Communities is that they are no longer to have separate foreign policies but are, as far as possible, to merge their national foreign policies in a European (i.e. Community) foreign policy and to work together in the manner indicated, so as to implement what is called European Political Cooperation, with a view to achieving eventual European union.
The principal courses of conduct to which the High Contracting Parties bind themselves are set out in s. 2 of Article 30:”
“(a) The High Contracting Parties undertake to inform and consult each other on any foreign policy matters of general interest so as to ensure that their combined influence is exercised as effectively as possible through coordination, the convergence of their positions and the implementation of joint action.
(b) Consultations shall take place before the High Contracting Parties decide on their final position.
(c) In adopting its positions and in its national measures each High Contracting Party shall take full account of the positions of the other partners and shall give due consideration to the desirability of adopting and implementing common European positions.
In order to increase their capacity for joint action in the foreign policy field, the High Contracting Parties shall ensure that common principles and objectives are gradually developed and defined.
The determination of common positions shall constitute a point of reference for the policies of the High Contracting Parties.
(d) The High Contracting Parties shall endeavour to avoid any action or position which impairs their effectiveness as a cohesive force in international relations or within international organizations.”
Without going further into Article 30, it is clear from those provisions that once the Member States ratify this Treaty each state’s foreign policy will move from a national to a European or Community level. Apart from becoming bound to endeavour jointly to formulate and implement a European foreign policy, each Member State will become specifically bound to inform and consult its fellow-members, to refrain from deciding on a final position as to an issue of foreign policy without prior consultations, to take full account of the positions of the other partners in adopting its positions and in its national measures, to ensure that common principles and objectives are gradually developed and defined, and to recognise that the determination of common positions shall constitute a point of reference.
Those and other commitments expressed in Article 30 make manifest that, although the approach to the ultimate aim of European Union is to be reached by a pathway of gradualism, each Member State will immediately cede a portion of its sovereignty and freedom of action in matters of foreign policy. National objectives and ideological positions must defer to the aims and decisions of an institution known as European Political Cooperation, which is to work in tandem with the European Communities. A purely national approach to foreign policy is incompatible with accession to this Treaty. The methods of co-operation between the Member States, which hitherto have been informal, aspirational or, at most, declaratory (as under the Stuttgart Declaration), now pass into a realm of solemnly covenanted commitment to the conduct of foreign policy in a way that will lead to European political union, at least in the sphere of foreign policy. In that respect, Title III of the SEA is the threshold leading from what has hitherto been essentially an economic Community to what will now also be a political Community.
In the case of Ireland, it is proposed that this transformation be effected not by any amendment of the Constitution, nor by any statutory change in the domestic law, but by simply depositing an instrument of ratification of the SEA. The fundamental and far-reaching changes in the conduct of the State’s foreign policy to which I have referred would thus be effected by the Government, without reference to the people and without an Act of parliament. Counsel for the Government has sought to justify this approach by submitting that, because Article 29, s. 4, sub-s. 1 of the Constitution has committed the conduct of foreign policy to the Government, the Courts are not entitled to control the Government in the way it decides to conduct foreign policy. It is therefore contended that the plaintiff’s claim is ill-founded.
I am unable to accept the submission that the powers of Government in the conduct of foreign policy are not amenable to control by the Courts. It is true that Article 29, s. 4, sub-s. 1 of the Constitution provides that “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.” However, when one turns to Article 28 one finds that s. 2 of that Article clarifies the position by declaring that “the executive power of the State shall, subject to the provisions of this Constitution,be exercised by or on the authority of the Government.” (Emphasis added). It follows, therefore, that in the conduct of the State’s external relations, as in the exercise of the executive power in other respects, the Government is not immune from judicial control if it acts in a manner or for a purpose which is inconsistent with the Constitution. Such control is necessary to give effect to the limiting words “subject to the provisions of this Constitution.”
In testing the constitutional validity of the proposed ratification of the SEA (insofar as it contains Title III) it is important to note that the Constitution at the very outset declares as follows in Article 1:”
“The Irish nation hereby affirms its inalienable, indefeasible, and sovereign right . . . to determine its relations with other nations . . . in accordance with its own genius and traditions.”
It appears to me that this affirmation means that the State’s right to conduct its external relations is part of what is inalienable and indefeasible in what is described in Article 5 as “a sovereign, independent, democratic State.” It follows, in my view, that any attempt by the Government to make a binding commitment to alienate in whole or in part to other states the conduct of foreign relations would be inconsistent with the Government’s duty to conduct those relations in accordance with the Constitution.
The ultimate source and limits of the Government’s powers in the conduct of foreign relations are to be found in Article 6, s. 1 of the Constitution:”
“All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.”
It follows that 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. That is to happen as part of a process designed to formulate and implement a European foreign policy. The freedom of action of each state is to be curtailed in the interests of the common good of the Member States as a whole. Thus, for example, in regard to Ireland, while under the Constitution the point of reference for the determination of a final position on any issue of foreign relations is the common good of the Irish people, under Title III the point of reference is required to be the common position determined by Member States. It is to be said that such a common position cannot be reached without Ireland’s consent, but Title III is not framed in a manner which would allow Ireland to refuse to reach a common position on the ground of its obligations under the Irish Constitution. There is no provision in the Treaty for a derogation by Ireland where its constitutional obligations so require. On the contrary, Title III expressly provides:”
“In adopting its positions and in its national measures [which presumably would include Acts of the Oireachtas] each High Contracting Party shall take full account of the positions of the other partners and shall give due consideration to the desirability of adopting and implementing common European positions.”
Thus, if the other Member States were to take up a common position on an issue of external relations, Ireland, in adopting its own position and in its national measures, would be bound by Title III to “take full account” of the common position of the other Member States. To be bound by a solemn international treaty to act thus is, in my opinion, inconsistent with the obligation of the Government to conduct its foreign relations according to the common good of the Irish people. In this and in other respects Title III amounts to a diminution of Ireland’s sovereignty which is declared in unqualified terms in the Irish Constitution.
It is urged on behalf of the Government that the changes in existing inter-state relations effected by Title III are slight, that it does little more than formalise existing practices and procedures by converting them into binding obligations. This, I fear, is to underestimate the true nature in international law of a treaty as distinct from a mere practice or procedure, and to misinterpret the commitments for the future involved in Title III. As a treaty, Title III is not designed in static terms. It not alone envisages changes in inter-state relations, but also postulates and requires those changes. And the purpose of those changes is to erode national independence in the conduct of external relations in the interests of European political cohesion in foreign relations. As I have pointed out, the treaty marks the transformation of the European Communities from an organisation which has so far been essentially economic to one that is to be political also. It goes beyond existing arrangements and practices, in that it establishes within the framework of the Communities new institutions and offices (such as European Political Cooperation, the Political Director and the Political Committee) and charts a route of co-ordination, by means such as working parties, a secretariat and regular meetings, so as to give impetus to the drive for European unity.
All this means that if Ireland were to ratify the Treaty it would be bound in international law to engage actively in a programme which would trench progressively on Ireland’s independence and sovereignty in the conduct of foreign relations. Ireland would therefore become bound to act in a way that would be inconsistent with the Constitution. The Government’s constitutional mandate requires it to act in accordance with the Constitution. In proposing to ratify this treaty it is in effect seeking to evade that obligation and to substitute for it an obligation, or a series of obligations, in international law which cannot be reconciled with the constitutional obligations.
There is, of course, nothing in the Constitution to prevent the Government, or any person or group or institution, from advocating or campaigning for or otherwise working for a change in the Constitution. Likewise there does not appear to be any constitutional bar to a non-binding arrangement by the State to consult with other states in the conduct of its foreign policy. It is quite a different matter when, as here, it is proposed that the State be bound by an international treaty which requires the State to act in the sphere of foreign relations in a manner which would be inconsistent with constitutional requirements. What would be an imperative under international law would be proscribed under the Constitution. In such circumstances it is the Constitution that must prevail.
For the foregoing reasons I am of the opinion that, without the appropriate constitutional amendment, the ratification of the SEA (insofar as it contains Title III) would be impermissible under the Constitution. I would declare accordingly.

Griffin J.
I agree with the judgment delivered by the Chief Justice. I should like however to add some observations of my own.
Title III, although included in the Single European Act (SEA), and set out in Article 30 in that Act, is effectively a separate treaty between the twelve countries who are the Member States of the European Communities. They are referred to throughout that Title as the High Contracting Parties (“the parties”), the designation usually applied to states in international treaties. The long term aim and objective of Title III is the formation of a European union. It is not in issue that if the State were to join such a union, a constitutional amendment would be necessary, but a European union is neither sought to be created nor is it created by the Treaty.
There has been European Political Cooperation (EPC) since October, 1970, (prior to the entry of the State to the Communities), when the first report of the Foreign Ministers of the Members States was adopted at Luxembourg. In that report the governments undertook to co-operate in the field of foreign policy by consulting regularly, harmonising views and opinions, concerting attitudes, and, where possible, undertaking joint action. There were three subsequent reports in 1973, 1981 and 1983, and Article I of the SEA provided that political co-operation should be governed by Title III and that the provisions of that Title should confirm and supplement the procedures agreed in the four reports and the practicesgradually established among the Member States. The purpose of Title III ” which is entitled “Treaty Provisions on European Cooperation in the sphere of foreign policy” ” appears to be to formalise the procedures and practices of the EPC and to do so by means of a treaty. By virtue of Article 32 of the SEA, nothing in Title III is to affect the Treaties establishing the Communities, so it does not purport to amend the Treaties in any way.
Details or summaries of the provisions of Article 30 have been included in the judgments already delivered and I do not propose to repeat them, although I will refer to some of those provisions. The language used in Article 30 would appear to have been chosen with extreme care to ensure that the obligations of the parties under the treaty would permit the utmost freedom of action to each of the parties in the sphere of foreign policy, and is in stark contrast to that used in Title II. For example, the parties are to endeavour to formulate and implement a foreign policy; to inform andconsult each other on foreign policy matters; consultations are to take place before deciding on their final position; they are to endeavour to avoid any action or position which impairs their effectiveness as a cohesive force; they are as far as possible to refrain from impeding a consensus; in international institutions and at international conferences they are to endeavour to adoptcommon positions on the subjects covered by the Title, and where not all the parties participate in such institutions or conferences, they are to take full account of positions agreed in EPC. On security, the parties are expressed to be ready to co-ordinate their positions more closely on the political and economic aspects of security ” military and defence aspects of security are not included and in my view should accordingly be considered to be excluded. Under clause 6 (c) nothing in Title III is to impede closer co-operation in the field of security between certain of the parties within the framework of the Western European Union or the Atlantic Alliance ” this provision would appear clearly to have been inserted to ensure that the declared stand on neutrality and military alliances taken by the State is fully respected, as the State is the only party which is not a member of either alliance, although four other parties are also not members of the Western European Union.
Having regard to the terms in which the provisions of Title III are expressed, I am in complete agreement with the Chief Justice in concluding that those provisions do not impose any obligations to cede any sovereignty or national interest in the field of foreign policy, nor do they in any way allow a decision of the State on any issue of foreign policy to be overridden or vetoed. The Treaty, being an international agreement to which the State is a party, has been laid before and been approved by Dail Eireann in compliance with the provisions of Article 29, s. 5, sub-ss. 1 and 2 of the Constitution. The Government is therefore, in my opinion, as the organ of government by which the executive power of the State is to be exercised pursuant to Article 29, s. 4 of the Constitution, entitled to ratify the Treaty without the necessity of an amendment of the Constitution.
However, there remains, as the Chief Justice pointed out in his judgment, an issue of a fundamental nature, i.e., as to whether the Court is entitled, at the instance of the plaintiff, to prevent the Government from ratifying the Treaty. In presenting the argument on behalf of the plaintiff, his counsel Mr. Browne, in relation to Title III, based his right to seek the intervention of this Court to prevent ratification of the Treaty on an apprehension on the part of the plaintiff that Title III would affect the independence of the State in relation to foreign policy, even though, as he put it, the Treaty had not become part of the domestic law of the State under Article 29, section 6. This brings into question the power of the Court to intervene in the acts of the Executive and inevitably to consideration of the separation of powers provided for in the Constitution.
Article 6 of the Constitution reads as follows:”
“1. All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.
2. These powers of government are exercisable only by or on the authority of the organs of State established by this Constitution.”
The effect of this Article has been considered and interpreted in a number of cases, which include Buckley and Others (Sinn Féin) v. Attorney General [1950] I.R. 67 and Boland v. An Taoiseach [1974] I.R. 338. In Buckley’s Case O’Byrne J. delivered the judgment of the Court and said at p. 81 that the object of Article 6 was:”
“. . . to recognise and ordain that, in this State, all powers of government should be exercised in accordance with the well-recognised principle of the distribution of powers between the legislative, executive and judicial organs of the State and to require that these powers should not be exercised otherwise. The subsequent articles are designed to carry into effect this distribution of powers.”
Under Article 15, s. 2, sub-s. 1 the Oireachtas is the organ of State in which the sole and exclusive power of making laws is vested. Article 15, s. 4, sub-s. 1 provides that the Oireachtas shall not enact any law which is in any respect repugnant to the Constitution or to any provision thereof; and sub-s. 2 of that section provides that every law enacted by the Oireachtas which is in any respect repugnant to the Constitution or to any provision thereof shall, but to the extent only of such repugnancy, be invalid. Under Article 34, s. 1 the judicial power of government can be exercised only by judges duly appointed in the manner provided by the Constitution in courts established by law under the Constitution. The High Court and this Court on appeal from the High Court are by Article 34, s. 3, sub-s. 2 expressly given jurisdiction to examine the validity of any law enacted under Article 15 which may be challenged as being repugnant to the Constitution or to any provision thereof. If the challenged Act or any provision thereof is found to be invalid by the High Court or by this Court, the Court so finding is bound to declare that the impugned Act or provision thereof is invalid. Those Articles provide the only power given to the Courts by the Constitution to declare invalid legislation enacted by the Oireachtas.
In the case of a Bill referred to this Court by the President, pursuant to Article 26 of the Constitution, for a decision on the question as to whether such Bill or any specified provision or provisions of such Bill is or are repugnant to the Constitution or to any provision thereof, this Court is by Article 26, s. 2, sub-s. 1 given express power, and has the duty, to consider such question and pronounce its decision on such question. This is the only power given to any Court to consider a Bill which has not yet become law.
In my opinion, the Courts have no power, either express or implied, to interfere with the Oireachtas in the course of the passage of a Bill, and all efforts seeking to prevent by Court interference the introduction or passage of a Bill have failed, the most recent example being the unsuccessful attempt by the plaintiff in this case to prevent the introduction of the European Communities (Amendment) Bill, 1986.
Article 28, s. 2 provides that the executive power of the State shall, subject to the provisions of the Constitution, be exercised by or on the authority of the Government. Under s. 4, sub-s. 1 of Article 28 the Government shall be responsible to Dail Eireann . Article 29, s. 4, sub-s. 1 provides that the executive power of the State in or in connection with its external relations shall in accordance with Article 28 of the Constitution be exercised by or on the authority of the Government.
No express power is given by the Constitution to the Courts to interfere in any way with the Government in exercising the executive power of the State. However, the Government, and all of its members and the administration in respect of which the members are responsible, are subject to the intervention of the Courts to ensure that in their actions they keep within the bounds of lawful authority. Where such actions infringe or threaten to infringe the rights of individual citizens or persons, the Courts not only have the right to interfere with the executive power but have the constitutional obligation and duty to do so. But that right to interfere arises only where the citizen or person who seeks the assistance of the Courts can show that there has been an actual or threatened invasion or infringement of such rights.
As stated earlier, the executive power of the State in or in connection with its external relations shall, in accordance with Article 28, be exercised by or on behalf of the Government. Under Article 29, s. 5, sub-s. 1 every international agreement to which the State becomes a party shall be laid before Dail Eireann , and under sub-s. 2 of that section the State shall not be bound by any international agreement involving a charge upon public funds unless the terms of the agreement shall have been approved by Dail Eireann , Dail Eireann being the body to which the Government is expressly answerable under Article 28, s. 4, sub-s. 1. The constitutional scheme in respect of international agreements would appear therefore to be that the Government, exercising the executive power, may enter into international agreements, but such agreements must be laid before Dail Eireann , and if the agreement involves a charge on public funds, the State is not to be bound by the agreement unless the terms of the agreement have been approved of by Dail Eireann
The power of the Court to interfere with the exercise by the Government of the executive power of the State was considered by this Court in Boland v. An Taoiseach [1974] I.R. 338. FitzGerald C.J., having referred to the statement of O’Byrne J. in Buckley & Others (Sinn Féin) v. Attorney General [1950] I.R. 67 and to the separation of the executive, legislative and judicial powers of government in Article 6 of the Constitution, said at p. 362:”
“Consequently, in my opinion, the Courts have no power, either express or implied, to supervise or interfere with the exercise by the Government of its executive functions, unless the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred upon it by the Constitution.”
And in the same case, I said at p. 370:”
“Counsel for the defendants argued that in no circumstances may the Courts interfere with the Government in the exercise of its executive functions. For the purpose of this action it is not necessary to determine this question in the form in which the argument was made, as the defendants need only show that the Courts cannot and should not intervene having regard to the circumstances of the present case. In the event of the Government acting in a manner which is in contravention of some provisions of the Constitution, in my view it would be the duty and right of the Courts, as guardians of the Constitution, to intervene when called upon to do so if a complaint of a breach of any of the provisions of the Constitution is substantiated in proceedings brought before the Courts.”
I see no reason to resile from what is stated in that passage, which was said in the context of an unqualified submission by counsel for the defendants that it is no part of the function of the judicial organ of the State to interfere with the Government in the exercise by it of the executive power of the State. In that case, in discussions arising out of that submission, members of the Court put to counsel for the defendants the example of a declaration of war by the Government without the assent of Dail Eireann , in clear breach of the provisions of Article 28, s. 3 of the Constitution, as being a circumstance in which the Court would be bound to intervene to protect a citizen against what would undoubtedly be an invasion of his rights and a justiciable matter. I fully endorse the opinion of the Chief Justice that there is nothing in the provisions of Articles 28 and 29 of the Constitution from which it would be possible to imply any general right in the Courts to interfere with the exercise of the executive power in the sphere or area of external relations, but that in any instance where the exercise of that power constitutes an actual or threatened invasion or breach of the constitutional
rights of an individual the Courts must have both the right and the duty to intervene to protect those rights. The decision in Boland v. An Taoiseach [1974] I.R. 338 is in my opinion consistent with that view.
In my judgment, the plaintiff has failed to establish any such invasion or breach of any of his rights resulting from the State being a party to the Treaty the provisions of which are set out in Title III.
I would accordingly dismiss this appeal.

Hederman J.
I agree with the judgments of Walsh J. and Henchy J. for the reasons given by them. There is little I can usefully add.
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. For the reasons already stated I would allow the appeal.

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.

*214
(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 manoeuvre designed to bring down the Agreement.

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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:

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(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

 

[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 purviewof 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 withoutabandoning 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 demandof 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-IrishAgreement. 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.

 

Horgan v Ireland

[2003] 2 I.R. 468
JUDGMENT of Mr. Justice Kearns delivered the 28th day of April, 2003.

The plaintiff is an Irish citizen and a retired officer of the Irish Defence Forces. He has a distinguished history of service to the State, including service on United Nations Peacekeeping Missions in Cyprus in 1966, 1971 and 1973, and in the Middle East in 1973/74. He left the army in 1986, since which time he has held positions in Trinity College, Dublin and Aughinish Alumina Limited in Co. Limerick. He has been engaged in full time education and research as a mature student at the University of Limerick where he completed a B.A. in History, Politics and Social Studies in 2001. He was awarded an M. Phil. (Peace Studies) degree by Trinity College in 2000. Over the past 10 years he has also worked as a civilian United Nations volunteer on election and democratisation missions with the United Nations and the European Union in the following countries: Bosnia, Croatia, Nigeria, Indonesia, Zimbabwe and East Timor.

In these proceedings, the plaintiff claims:-

1. A declaration that the decision by the Government made on the 19th of March 2003 to maintain arrangements whereby military and civilian aircraft of the United States of America engaged in the prosecution of the military attack of the United States of America and the United Kingdom of Great Britain and Northern Ireland against the State of Iraq will continue to be permitted to overfly the State and to land and be refuelled at Shannon Airport, Co. Clare and the transit through the State with the permission of the fourth named defendant of troops of the United States en route to the said war is in breach of Ireland’s neutral State duty not to permit the movement of troops or convoys of either munitions of war or supplies across its territory as a neutral Power and that the said decision of the Government is thereby in breach of Article 29.3 of the Constitution

2. A declaration that the decision of the Government of the 19th of March 2003 and the permissions of the second and third defendants to facilitate the overflight and landing and refuelling in Ireland and in particular at Shannon Airport, Co. Clare of United States military and civilian aircraft whereby troops of the armed forces of the United States of America or convoys of either munitions of war or supplies across the territory of the State in transit to the theatre of war being prosecuted by the United States of America against the State of Iraq constitutes participation by the State in the said war and is thereby in breach of Article 28.3 of the Constitution in that a valid and constitutional assent of Dáil Éireann under Article 28.3 to such prosecution of war has not been given

3. A declaration that the decisions of the second and third defendants pursuant to the Air Navigation (Foreign Military Aircraft) Order 1952 and Article 5 of the Air Navigation (Carriage of Munitions of War, Weapons and Dangerous Goods) Order 1973 as amended by the Air Navigation (Carriage of Munitions of War, Weapons and Dangerous Goods) Amendment Order 1989 and consequent permissions granted whereby military and civil aircraft of the United States of America are and will be permitted to fly over and through the air space of the State and to land at airports, and in particular, Shannon Airport, Co. Clare within the State and refuel there and to move troops or convoys of either munitions of war or supplies across the territory of the State constitutes a breach by the State as a neutral State of the customary rules of international law and is thereby unconstitutional, unlawful, and void by virtue of the Constitution and in particular Article 29.3 of the Constitution

4. A declaration that the decision of the Government of Ireland made on the 19th of March 2003 to permit military and civil aircraft of the United States engaged in the prosecution by the United States of America of a war against the State of Iraq to fly into Irish air space and to land at Shannon Airport for the purpose of refuelling and other facilities including the movement of troops and/or the munitions of war to the theatre of the said war constitutes an assistance by the State to the prosecution of the said war by the United States of America against the State of Iraq contrary to the generally recognised principles of international law contrary to the Constitution and in particular Article 29 thereof.”

The Statement of Claim delivered on the 24th day of March 2003 in addition claims certain injunctive remedies against the defendants to restrain the matters complained of.

The relevant portions of Article 28 of the Constitution of Ireland provide:-

“2. The executive power of the State shall, subject to the provisions of this Constitution, be exercised by or on the authority of the Government.
3.1 War shall not be declared and the State shall not participate in any war save with the assent of Dáil Éireann.”
The relevant portions of Article 29 of the Constitution provide:-

“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.
2. For the purpose of the exercise of any executive function of the State in or in connection with its external relations, the Government may to such extent and subject to such conditions, if any, as may be determined by law avail of or adopt any organ, instrument, or method of procedure used or adopted for the like purpose by the members of any group or league of nations with which the State is or becomes associated for the purpose of international co-operation in matters of common concern.”
Section 5 of the Air Navigation and Transport Act, 1946 provides that an order made by the Minister for Industry and Commerce under that Act can be made applicable to any aircraft in or over the State and authorises the Minister to make regulations in respect of such matters and things as might be specified in such order.

The Air Navigation (Foreign Military Aircraft) Order 1952, made by the Minister for Industry and Commerce in exercise of the powers conferred on him by the 1946 Act, contains the following provisions:-

“3. No foreign military aircraft shall fly over or land in the State save on the express invitation or with the express permission of the Minister (i.e. the Minister for External Affairs)
5. Every foreign military aircraft flying over or landing in the State on the express invitation or with the express permission of the Minister shall comply with such stipulations as the Minister may make in relation to such aircraft.”

On the 29th of August 1973 the Air Navigation (Carriage of Munitions of War, Weapons and Dangerous Goods) Order 1973 became applicable to all aircraft when in or over the State. It contained the following provisions:-

“5. The Minister may, by direction, exempt any class of aircraft from any of the provisions of Article 6 or 7 of this Order.
6 (1) In this Article “munitions of war” means weapons and ammunition designed for use in warfare and includes parts of or for such weapons and ammunition

(2) (a) Subject to subparagraph (b) of this paragraph –
(i) it shall be unlawful to carry munitions of war on an aircraft;
(ii) it shall be unlawful for a person to take or cause to be taken on board an aircraft, or to deliver or cause to be delivered, for carriage thereon, goods which he knows or has reason to suspect to be munitions of war.

(b) This Article shall not apply to munitions of war taken or carried on board an aircraft which is registered elsewhere than in the State if, under the laws of the State in which the aircraft is registered the munitions of war may be lawfully taken or carried on board for the purpose of ensuring the safety of the aircraft or the persons on board.

The Air Navigation (Carriage of Munitions of War, Weapons and Dangerous Goods) (Amendment) Order 1989 amended the 1973 Order by substituting for Article 5 the following Article:-

“5. The Minister may, by direction, exempt a specified aircraft in regard to a particular aircraft operation from all or any of the provisions of Article 6 or 7 of this Order.”
Recent Events

On the 20th of March 2003 a military attack was launched on the State of Iraq by the military forces of the United States of America and the United Kingdom. The court was informed that the Government of the United States of America had sent approximately 220,000 troops, together with munitions of war, to the Middle East in preparation for the military campaign. It is not in dispute that a portion of such troops and munitions passed through Shannon Airport en route to the theatre of war.

The military and civilian aircraft carrying the said troops and/or munitions which overflew or landed in the State at Shannon Airport did so with the permission of the Minster for Foreign Affairs granted pursuant to Article 3 of the Air Navigation (Foreign Military Aircraft) Order, 1952 or under an exemption granted by the third named defendant pursuant to Article 5 of the 1973 Air Navigation Order as amended.

For the purpose of the present application, the parties were invited to agree a “statement of facts” in relation to the nature and extent of facilities granted to the United States forces at Shannon, both leading up to and following the commencement of hostilities against Iraq on the 20th of March 2003. This invitation was extended by the court with a view to obviating the necessity to consider taking evidence in this regard. This suggestion was accepted by both sides and on the 4th of April 2003, the Chief State Solicitor wrote to the plaintiff’s solicitors setting out the factual position for the period from 1st January 2003 to date as follows:-

“There were 762 overflights by US military aircraft in the period from
1 January 2003 to 31 March 2003 inclusive. However, as the Department of Foreign Affairs receive statistics on such overflights on a monthly basis, no breakdown of overflights of US military aircraft since 20 March 2003 is available.

A total of 41 US military aircraft were given permission to land at Shannon Airport in the period from 1 January 2003 to date. No US military aircraft has landed at Shannon Airport since 20 March 2003.

The Department of Foreign Affairs does not routinely receive information as to the number of personnel on board military aircraft effecting such landings. However, from the nature of the aircraft – generally small passenger aircraft and transporters – the number of personnel on board these aircraft is likely to be low.

US military personnel are mainly transported by civil aircraft which do not require special permission to transit or overfly if they are not carrying weapons or munitions. As a result, it is impossible to state with precision the number of US troops that have passed through Shannon Airport travelling to the military conflict in Iraq. However, it is estimated, on the basis of the most recent data available, that the total number of US troops and associated civilian personnel passing through Shannon Airport in the period from 1 January 2003 to 19 March 2003 was around 34,500. A further 3,000 passed through Shannon Airport in the period between 20 March 2003 and 29 March 2003 inclusive.

In relation to the carriage of weapons or munitions on flights landing in Ireland or overflying its airspace, the Department of Transport granted 180 exemptions in the period between 1 January 2003 and 19 March 2003 inclusive. 35 exemptions were granted for flights in the period between 20 March 2003 and 30 March 2003 inclusive. The vast majority of these exemptions were in respect of aircraft carrying troops accompanied by their weapons and ammunition.
The refuelling of aircraft at Shannon Airport is handled on a commercial basis. Fuel is provided by or on behalf of Aer Rianta at commercial rates without any differentiation as to the type of aircraft, whether civil or military. Fuel is supplied to aircraft for the purposes of getting such aircraft to its destination. Contrary to popular belief fuel has not been supplied to refuelling tanker aircraft for the purpose of mid-air refuelling. No such services have been sought.”

Mr. Rogers S.C. on behalf of the plaintiff indicated to the court that, in the absence of any contrary information, the plaintiff accepted the information contained in the letter as being an accurate statement of the factual position.

On the 19th of March 2003 the Irish Government, having received the advices of the sixth named defendant, approved the terms of a Motion to be put before Dáil Éireann on 20th March 2003. It was in the following terms:-

“Dáil Éireann, noting the imminence of military action by a United States led coalition against Iraq:
– reaffirms Ireland’s commitment to the United Nations as the guarantor of collective global security and as the appropriate forum for the resolution of disputes threatening international peace and security;

– condemns the continued refusal of the Government of Iraq over a period of 12 years to comply with its obligations to disarm as imposed by numerous

– resolutions of the United Nations Security Council, most recently in Resolution 1441;

– recalls that Resolution 1441 found Iraq in material breach of its obligations under relevant resolutions, afforded Iraq a final opportunity to comply with these obligations, and recalled the Security Council’s repeated warnings that Iraq would face serious consequences as a result of its continued violations of its obligations;

– expresses its deep regret that efforts within the Security Council to reach agreement on how to address the question of Iraqi non-compliance have failed;

– recalls Ireland’s statement as a member of the Security Council on the adoption of Resolution 1441 that it would be for the Security Council to decide on any ensuing action in the event of further Iraqi non-compliance;

– regrets that the coalition finds it necessary to launch the campaign in the absence of agreement on a further resolution, notwithstanding the claims of the coalition to be acting on the basis of an existing Security Council mandate;

– endorses the decision of the Government that Ireland will not participate in the coalition’s proposed military action against Iraq;

– expresses its earnest hope that military action, should it occur, will be of short duration and that loss of life and destruction will be kept to a minimum;

– declares its commitment to the sovereignty, independence and territorial integrity of Iraq;

– calls on all parties to any conflict to respect the provisions of international humanitarian law, in particular, the Geneva Conventions;

– welcomes the stated intention of the coalition to act swiftly to address the food and humanitarian needs of the Iraqi people;

– welcomes the arrangements put in place by the Government to ensure that Ireland will be able to contribute rapidly to the humanitarian effort in Iraq;

– calls on the United Nations to assume a central role in securing the humanitarian needs of the Iraqi people and the reconstruction of Iraq in which Ireland will play its full part;

– recalls the longstanding arrangements for the overflight and landing in Ireland of US military and civilian aircraft;

– supports the decision of the Government to maintain those arrangements.”

A resolution in the terms of the Motion was passed by Dáil Éireann on 20th March 2003.

It is immediately apparent that the said resolution was not, and did not purport to be, an assent of Dáil Eireann under Article 28.3.1. to ‘participation’ in the war. On the contrary, the resolution specifically endorsed the decision of the Government that Ireland “Will not participate in the coalition’s proposed military action against Iraq”. Secondly, the resolution supported the decision of the Government to maintain the “long standing arrangements for the overflight and landing in Ireland of US military and civilian aircraft”.

In his statement to Dáil Eireann on 20th March 2003, the Taoiseach addressed the question of whether Ireland should continue to facilitate the landing and overflight of aircraft belonging to States engaged in the military action against Iraq. He stated as follows:-

“Essentially, we are talking about US military aircraft and civilian aircraft, carrying military personnel and equipment, on behalf of the US Government.

The Government discussed this matter at length yesterday. We have decided not to change our current policy in relation to stopovers or overflights.

I want to assure Dáil Eireann, and the Irish People, that the Government has carefully considered what is best for this country in a very difficult situation where no simple answers exist. We took our decision after long reflection. We took into account the present circumstances, the principles that underpin our foreign policy, our international relations and our broader national interests.

The issues concerned are not black and white. International relations involve difficult dilemmas. It is easy to address issues in absolute terms. The responsibility of Government does not always allow that luxury.

There are a number of important factors relevant to our decision.

The first and crucial consideration is that the Government does not regard the provision of landing and overflight facilities to foreign aircraft as participation in a war. This has been the consistent position of successive Irish Governments and was our position in relation to the Gulf War. At that time the Government pointed out that whether any role adopted or action taken by the Government in relation to a Gulf War would constitute participation in that war is, in the last analysis, a question of substance and degree. The Government then and now maintain that merely to permit the use of a civilian airport in this manner is not of sufficient degree or substance to constitute participating in the war.

The provision of the facilities does not make Ireland a member of a military coalition. Nor does anybody regard it as such. We remain militarily neutral. The decision we have taken on this issue is our own. Ireland has made overflight and landing facilities available to the US for the last 50 years. This period covers many crises and military confrontations, which involved the US taking military action without specific UN endorsements – Kosovo, being the most significant. We did not withdraw or suspend those facilities at any stage during that period.

There is no reason to act differently towards the United States now than we did during previous conflicts.

No other country is known to be contemplating the withdrawal of existing facilities from the US. This includes Germany and France, who have been the strongest opponents of US intentions on the Security Council. It also includes a number of Arab countries who have taken a strong position against war.

These countries would not accept that, by maintaining overflight or landing facilities to the US, they are endorsing or participating in the US military action. It would be extraordinary for Ireland to adopt a position of opposition in regard to the United States that no other country, not even its strongest critics on the Security Council, is prepared to take.”

In his affidavit sworn on 31st day of March, 2003, the plaintiff (at paragraph 20 thereof) asserts that the current granting of facilities (i.e. in the form and to the extent agreed by both sides to exist) “constitutes the most fundamental and far reaching change in national policy in relation to the State’s practice in time of war in the absence of an express request for assistance from the Security Council.”

It is his contention that the historic materials which relate to the “long standing arrangements for overflight and landing” demonstrate that permissions for foreign military aircraft to overfly or land in the State were granted in limited circumstances and subject to specific conditions.

Given that the present level of aid and assistance being provided at Shannon by the Irish Government is alleged to amount to a “participation” in the war against Iraq, it now becomes necessary, at least for the purpose of comparison with the present arrangements, to examine the “long standing arrangements”.

The long standing arrangements.

A series of documents were tendered to the court relating to the policy governing the use of Irish airspace by foreign military aircraft over the last 50 years. Some of these documents consisted of memos or minutes submitted by the Department of Foreign Affairs to the Taoiseach’s Department, whereas others deal with requests to the Department of External Affairs for overflight or landing facilities. Extracts from Dáil debates were also tendered in which details of Government policy on this issue were stated and restated over a number of years in Dáil Eireann.

A key memo dated 16th September, 1958 from the Department of External Affairs to the Taoiseach’s Department states the following:-

“I am directed by the Minister for External Affairs to state that an informal approach was recently made to this Department by the American Embassy, with the object of ascertaining how we would react to a request for rights for US military aircraft to overfly the country, on the clear understanding that such aircraft:

(1) would be unarmed; and
(2) would be engaged solely in conveying cargo and passengers.
The cargo would consist of “support supplies” being flown primarily to Britain, France and Germany. “Support supplies” is defined generally as such things as food, clothing and household equipment.

According to the American Embassy, the primary reason why the US authorities would wish to have the authorisation in question is to effect a saving in expenditure by permitting a more direct route between the points of departure and the points of arrival of the aircraft concerned.

The USA at present enjoy a blanket permission, renewable periodically, for

(a) emergency landings in, and overflights of, the country in air/sea rescue operations and
(b) listing Shannon airport as a clearance alternate for aircraft of the US Military Air Transport Service (M.A.T.S.) on transatlantic flights.
The flights about which the American Embassy has inquired could, of course, serve indirectly to help certain American military operations – in the sense that the bases in Europe which are supplied by such flights may be used for actions such as that recently undertaken in the Lebanon. However, there is nothing in international law which prevents a country from authorising such flights in time of peace.

In the circumstances, and having regard to the reason alleged by the American Embassy for seeking permission for overflight (a reason which he has no ground for questioning), the Minister for External Affairs is disposed to have the American Embassy advised that a formal request, if received, would be granted, subject to the understanding that, in the event of a serious deterioration in the political situation in Europe or in the Middle East, it would lapse.”

A response from the Taoiseach, following a meeting of the Government, on 23rd September 1958, stated;-

“I am directed by the Taoiseach to state, following informal consultation by him with the Ministers for Industry and Commerce, Defence and Justice, that the American Embassy may be informed that a formal request for rights for United States military aircraft to overfly Ireland would be granted on the clear understandings mentioned in the first paragraph of your minute and on the further understanding that the permission would be subject to reconsideration in the event of a serious deterioration in the international situation.”
On the 31st July 1959, the British Government made an application for permission to use Tory and Inishtrahul Islands for refuelling helicopters participating in naval exercises. This request was refused. The minute prepared by the Department of Foreign Affairs in respect of the application states:-

“Applications are frequently received by An Roinn Gnothai Eachtracha for permission for foreign military aircraft to overfly or land in the State. These are generally in relation to individual aircraft engaged in various missions including training flights. The US has “blanket” permission
(a) for emergency landings in and overflights of Ireland for aircraft participating in air/sea rescue operations,
(b) to list Shannon Airport as a clearance alternate for aircraft of the US Military Air Transport Service on transatlantic flights,

(c) for unarmed military planes operated for or on behalf of the US Government to overfly Ireland (such planes would carry only cargo and passengers)”.

The departmental note dated 21st July, 1959, compiled before the decision to refuse was made, states:-

“On the face of it, it is difficult to see how this request could be acceded to. The islands mentioned are as much part of the national territory as Stephen’s Green. It is known that we give permission for the landing in our territory of unarmed military planes engaged on peaceful duty e.g. US army planes carrying US personnel for leave in Ireland or in transit to the USA. It is quite another thing to give permission not only for aircraft engaged on warlike exercises to land on our territory but also to use our territory as a refuelling base for such exercises. Apart from the political aspect of the matter, the views of the Department of Defence would have to be obtained.”

Where individual ministerial permissions have been granted under the Air Navigation (Foreign Military Aircraft) Order 1952, the relevant policy considerations have been stated and restated on various occasions in reply to parliamentary questions in Dáil Eireann. The court was furnished with details of such replies given on the 25th October 1983, 9th December 1986, 2nd May 1989, 24th October 1990 and 3rd March 1998.

On 25th October 1983, the then Minister for Foreign Affairs stated in Dáil Eireann:-

“On occasion, limited numbers of United States military personnel have passed through Shannon Airport. Insofar as this transit involves the use of foreign military aircraft, permission has to be sought in each case from my Department, who consult with the Departments of Transport, Defence and Justice in each case. Requests for foreign military overflights and landings are considered in the light of long standing procedures and criteria applied by successive Irish Governments. These criteria include:-
– that clearance should be consistent with the Government’s foreign policy as expressed in Dáil Eireann, in the United Nations and elsewhere;
– that the overflight or military landing must not be an integral part of training manoeuvres by foreign military aircraft; likewise, clearance is not granted where a troop-carrying aircraft is en route to military exercises.

– that clearance be in no way prejudicial to the security or safety of the State.

while the clearance of commercial aircraft is primarily a matter for the Minister for Transport, the same criteria apply in the case of commercial aircraft in military service. I am satisfied that in all such cases considered by my Department, these criteria were met. The granting of requests for such overflights or landings in accordance with these procedures and criteria has no implications for Ireland’s neutrality.”

On the 2nd May 1989, the then Minister for Foreign Affairs stated in Dáil Eireann:-

“The Air Navigation (Foreign Military Aircraft) Order, 1952, provides that foreign military aircraft may not fly over the State unless at the express invitation or with the express permission of the Minister for Foreign Affairs. Accordingly, permission for overflights of foreign military aircraft has to be sought from me. The granting of such permission is dependant on certain conditions being met which are drawn to the attention of the countries concerned. The most important of these conditions are that the aircraft be unarmed, not carry arms, ammunition or explosives and not engage in intelligence gathering. Further, the flights in question must not form part of military exercises or operations.”
An assurance in similar terms was given to Dáil Eireann by the Minister for Foreign Affairs on 24th October 1990.

In the aftermath of the atrocities perpetrated on September 11th, 2001, a number of further documents were prepared by the Security Policy Section of the Department of Foreign Affairs, including a briefing note for use in Brussels by the Political Director dated 20th September 2001. In a section entitled “Use of Irish Air Space by US Military Aircraft” the following appears:-

“• The Taoiseach has stated that Ireland can support any overflights that

are governed by the UN Charter,
During Operation Desert Storm – which had a U.N. mandate – the US refuelled at Shannon. We would certainly give our support to any future operation which had a UN mandate,
Anything outside of that context has to be looked at on an individual basis,
Under an Air Navigation Order, foreign military aircraft require the permission of the Minister for Foreign Affairs to overfly, or land in, the State,
Requests for overflights of Irish air space are handled through standard procedures on a case by case basis.”
In relation to overflights by military aircraft, a contemporaneous policy document from the Security Policy Section dated 20th September 2001 states:-

“1. The legislative basis for control of military over flights is as follows:- Under the Air Navigation (Foreign Military Aircraft) Order 1952, foreign military aircraft require the permission of the Minister for Foreign Affairs to overfly or land in the State.
2. Where permission is given for overflights or landings it is granted on condition that

(1) The aircraft in question are unarmed,
(2) They carry no ammunition,
(3) They do not engage in intelligence gathering and
(4) They are not involved in military exercises.”
In the aftermath of September 11th 2001, the Government made clear on the 21st September, 2001that it would facilitate overflight, landing and refuelling of aircraft engaged “in pursuit of Resolution 1368”. Resolution 1368 of the Security Council classified the terrorist attacks of 11th September 2001 as a threat to international peace and security. The resolution called on all States to work together urgently to bring to justice the perpetrators, organisers and sponsors of the attacks and called on the international community to redouble efforts to prevent and suppress terrorist acts.

A memo dated 16th September 2002 from the Political Division of the Department of Foreign Affairs states:-

“In making this offer of overflight and landing facilities, Ireland is not participating in a war, nor does it mean we have joined a military alliance. Rather, it is simply fulfilling its international legal obligations, acting in accordance with Irish Law, to assist a concerted international response to deal with the threat to international peace and security.”
By way of further clarification, the Minister for Foreign Affairs on 9th October 2002 informed Dáil Eireann:-

“Permission for foreign military aircraft to overfly or land in the State is granted by the Minister for Foreign Affairs under the Air Navigation (Foreign Military Aircraft) Order 1952. Permission is normally granted on the basis of confirmation that the aircraft is unarmed, does not carry arms, ammunition or explosives and does not form part of a military exercise or operation. US military aircraft meeting these conditions have been granted permission to refuel at Shannon airport over a period of decades.
In addition and on an exceptional basis, a decision was taken to waive the normal conditions for the granting of permission for over flight and landing in respect of military aircraft operating pursuant to UN Security Council Resolution 1368, adopted on 12th September 2001.

It has also been the practice, going back many years, for commercial charter aircraft carrying US servicemen between the US and bases overseas to land and refuel at Shannon. Such flights do not require special permission and are subject to the requirements of civil aviation regulations.

No arrangements have been agreed with the US Government to facilitate the use of Shannon Airports for the transfer of troops and equipment to the Middle East. Any request for such agreement would be considered in the light of the position of the UN Security Council and in the context of ongoing efforts to reach a peaceful resolution of the issue.”

A briefing document prepared by the Security Policy Section of the Department of Foreign Affairs dated 16th December, 2002 contained the following restatement of Irish Government policy in the context of suggested replies to supplementary questions to PQ26780:–

“1. Under what authority does a Government permit use of Irish air space or landing facilities by foreign military aircraft?
In giving permission for foreign military aircraft to overfly or land in the State, the Government is acting under the Air Navigation (Foreign Military Aircraft) Order 1952 which allows the Minister for Foreign Affairs to grant permission to foreign military aircraft to overfly or land in the State.
Under the terms of this order, the conditions to be complied with by foreign military aircraft overflying or landing in Ireland are for the Minister for Foreign Affairs to determine.
In the case of routine landings of military aircraft, confirmation is normally required that the aircraft is unarmed, does not carry arms, ammunition or explosives and does not form part of a military exercise or operation.
Foreign military aircraft meeting these conditions have been granted permission to refuel at Shannon over a period of decades.
2. Under what circumstances can the usual stipulations be waived?

On an exceptional basis a decision was taken to provide landing and refuelling facilities for military aircraft pursuant to the State’s obligations under UN Security Council Resolution 1368, adopted in response to the terrorist attacks of 11th September. This Resolution classified the attacks of 11th September as a threat to international peace and security and called on all States to work together to bring to justice the perpetrators, organisers and sponsors of the attacks.”
A reply in the above terms was made by the Minister in Dáil Eireann on 17th December 2002.

On 14th January 2003, the briefing document for the Minister contained the following in paragraph (21):-

“The US military aircraft landing at Shannon are primarily for cargo and passenger transportation. As I have said, it is simply not the case that Shannon is being used to transport large quantities of arms to the Gulf. The Government therefore has no intention of altering the present arrangements. In the event of a UN decision to sanction military action against Iraq or in the event of unilateral action by the US, the Government would review the situation and seek to have the matter debated in the Dáil.”
In an affidavit sworn on 2nd April 2003, Mr. David Cooney, Political Director of the Department of Foreign Affairs, deposes that US military aircraft have been landing in and overflying Ireland through sovereign Irish airspace since at least the end of the Second World War. Overflights have frequently occurred at significantly higher levels than is presently the case. He refers to records which show that over flights in the year December 1986 to November 1987 exceeded 8,700, compared to a total of 1,330 in 2002. Military landings at Shannon have continued throughout the period. Sample annual figures are 61 in 1966, 96 in 1986, 184 in 1996 and 372 in 2002.

At paras 9-10 of his affidavit, he deposes as follows:-

“Civilian aircraft carrying US military personnel between the US and points in Europe and the Middle East have been landing in Shannon since at least 1948. Files reveal that, for instance, at least 71 charter aircraft carrying 1,230 US military personnel transited through Shannon in October 1948.
10. I am not aware that the State has ever sought to revoke or restrict permission to the United States to avail of such approved landing and overflights facilities on the basis of the United States participation in a military conflict. During this period United States forces have been involved in the following conflicts: Korea (1950 – 1953), Lebanon (1958), Vietnam (1961 – 75), Lebanon (1982-84) Grenada (1983), Panama (1989), Kuwait (1991), Somalia (1992-1993), Bosnia (1995), and Kosovo (1999).”

In the light of those matters, he proceeded to depose his belief as to his belief that the Taoiseach was entirely correct when saying in Dáil Eireann on 20th March that “the withdrawal of such facilities at this time could not but be seen, by any objective observer, as a radical and far reaching change in our foreign policy.”

He contends that there is no basis whatsoever for saying that the decision by the Government to maintain current policy in relation to overflights and landing by United States military and civilian aircraft and the resolution of Dáil Eireann endorsing that decision constitutes a change in the policy and practice of the State during military conflicts with regard to the provision of overflight and landing facilities to foreign military aircraft or civilian aircraft carrying munitions.

On the question of Ireland’s traditional neutrality, Mr. Cooney exhibited in his affidavit a schedule of historical sources and writings which he submitted established that at the break of hostilities in 1939 the Irish Government adopted a position “somewhat different” from the traditional role of neutrality which had been referred to in the affidavit of Dr. Scobbie, the law expert who had sworn an affidavit on behalf of the plaintiff herein. He cited by way of example a number of recorded incidents of Irish authorities refuelling Allied aircraft and British service vessels being given permission through Irish territorial waters to pursue and destroy hostile submarines. He further made reference to an Appendix attached to a War Cabinet Memorandum prepared by the Secretary of State for Dominion Affairs on 21st February, 1945 which, while it recorded Ireland’s refusal to grant the use of bases or to remove the Axis Legations nonetheless recited the granting of a number of facilities which were provided by the Irish Government “which would not be regarded as overtly prejudicing their attitude of neutrality.”

Nothing in the material submitted by Mr. Cooney, however, suggests that at any time between 1939 – 1945 were large movements of troops or munitions en route to any theatre of war permitted to avail of Irish national territory or Irish ports.

The Plaintiff’s Case

At the outset, counsel on behalf of the plaintiff submits that the plaintiff have locus standi to seek the relief sought in these proceedings as a citizen of Ireland, relying on the approach adopted by the High Court and Supreme Court in Crotty v. An Taoiseach [1987] IR 713, McKenna v. An Taoiseach (No. 2) [1995] I.R. 10 and McGimpsey v. Ireland [1988] I.R. 567.

The same authorities are relied upon to argue that the plaintiff has raised justiciable issues which this court may determine. While it is accepted by the plaintiff that the courts have indicated that their jurisdiction to restrain the exercise of executive power by the State is one which can only be exercised with considerable judicial restraint, it is nonetheless submitted that in the conduct of the State’s external relations, the government is not immune from judicial control if it acts in a manner or for a purpose which is inconsistent with the Constitution.

It is contended on behalf of the plaintiff that the State is in breach of its obligation under Articles 28 and 29 and that the plaintiff is, as a concerned citizen, entitled as a matter of public law to invite the judicial organ to so declare. Such an entitlement, counsel submits, clearly derives under Crotty v. An Toaiseach and from the following passage of the judgment of Walsh J. at p. 777–8 where he stated:-

“It is the Government alone which negotiates and make 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 from the restraints of the Constitution or to transfer their powers 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. To the judicial organ of government alone is given the power conclusively to decide if there has been a breach of constitutional restraints.”
In relation to Article 29, it is submitted on behalf of the plaintiff that Ireland’s obligations under Article 29.3 obliged the State to accept and apply generally recognised principles of international law. This principle, Mr. Rogers submitted, has been clearly established and applied in a number of cases, including Government of Canada v. Employment Appeals Tribunal & Burke [1992] 2 I.R. 484, ACT Shipping (PTE) Limited v. Minister for the Marine, Ireland and the Attorney General, [1995] 3 I.R. 406 and McElhinney v. Williams and Her Majesty’s Secretary of State for Northern Ireland [1995] 3 I.R. 382.

These authorities establish, it is submitted, that, absent some contrary provision of the Constitution, statute or common law, the provisions of customary international law form part of domestic or municipal law in this State.

Customary international law dictates the obligations of a neutral State which were summarised in the 1907 Hague Convention V (Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land) in the following terms:-

“Article 1: the territory of neutral powers is inviolable
Article 2: belligerents are forbidden to move troops or convoys of either munitions of war or supplies across the territory of a neutral power

Article 5: a neutral power must not allow any of the acts referred to in Articles 2 to 4 to occur on its territory … it is not called upon to punish acts in violation of its neutrality unless the said acts have been committed on its own territory.”

While it is accepted that neither Ireland, Iraq or the United Kingdom have ratified the Convention and are thus under no obligation to apply its provisions as a matter of treaty law, nevertheless, the plaintiff submits, 1907 Hague V is regarded as declaratory of customary international law (Schwarzenberger’s International Law (1968) 549, 550, 552 and 567).

By the same token, it is submitted that Article 18 of the San Remo Manual (which was based on Article 42 of the 1923 Hague Convention Draft Rules of Aerial Warfare) is also declaratory of customary international law. It provides as follows

“Belligerent military and auxiliary aircraft may not enter neutral air space. Should they do so, the neutral state shall use the means at its disposal to require the aircraft to land within its territory and shall intern the aircraft and its crew for the duration of the armed conflict. Should the aircraft fail to follow the instructions to land, it may be attacked, subject to the special rules relating to medical aircraft as specified in paragraphs 181 to 183.”
Mr. Rogers on behalf of the plaintiff pointed out that the duty on neutral states to repel belligerent aircraft from its territory is emphasised in Oppenheim Lauterpacht’s International Law (1952), p. 685.

Mr. Rogers also referred to the United States Military Handbook (published in Washington (1956) by the Department of the Army and updated to 1976) which confirms the continued vitality of the law and practice relating to the duties and obligations of neutral states. It refers to Hague Convention V where at paragraph 516 of the Military Handbook it states:

“516. Movements of troops and convoys of supplies
Belligerents are forbidden to move troops or convoys of either munitions of war or supplies across the territory of a neutral power (H.V. Art. 2).”

There could, Mr. Rogers submitted, be no question of Ireland adopting some form of qualified neutrality: a country could either participate in a war or adopt ‘Hague’ neutrality.

The rules or indicia for neutrality were authoratively stated, he submitted, by Schwarzenberger’s International Law (1968) at p. 549 in the following terms:-

“For purposes of presenting the law as applied on the international judicial level, it is convenient to break up into five rules the basic rules of the international customary law of neutrality:
(1). A neutral state must abstain from taking sides in the war and assisting either belligerent and, in matters of discretion, deal impartially with all belligerents.
(2) A neutral state must prevent its territory from being used as a base of hostile operations by any belligerent

(3) A state not participating in a war is entitled to respect by the belligerents of its rights as a neutral Power. It must, however, acquiesce in restrictions which, under the laws of war and neutrality, belligerents are entitled to impose on the relations between their enemies and neutral nationals.

(4) A neutral state, as distinct from a neutralised state, may change its status to one of belligerence; otherwise, the state of neutrality is co-extensive with that of war.

(5) Any violation of legal duties owed by belligerents and neutral states to one another is a breach of international law and entails the consequences of an international tort.”

It is against this background, that the plaintiff advances three submissions for adjudication to the court.

Firstly, it is submitted that the provision of the kind of aid and assistance being rendered in the current conflict constitutes a breach of the generally recognised principles of international law and is therefore contrary to Article 29 of the Constitution because the defendants are acting in breach of a fundamental norm of international law by aiding and assisting the United States and the United Kingdom in the use of force against the State of Iraq without having first concluded that the use of such force is lawful.

Mr. Rogers argued that the fourth defendant has not concluded that the military attack on Iraq by the United States of America and the United Kingdom constitutes “a lawful action”. He therefore submits, that by virtue of the Constitution, and in particular by virtue of Article 29.1, 29.2 and 29.3, it was and is incumbent on the fourth defendant before making a decision to authorise the continued use by the military forces of the United States of America of Ireland’s airspace and landing and transit facilities at Shannon Airport to determine that the prosecution by the United State of the war against Iraq was and is founded on international justice and morality. In the absence of a determination by the Government that the said war is in accordance with the principles of international justice and morality, Mr. Rogers submits that any assistance given by the Government of Ireland to aid the prosecution of the war is contrary to those provisions of the Constitution.

He submits that the prohibition of the use of force is regarded as a Jus Cogens, that is, a peremptory norm of international law, so described by Brownlie in Principles of Public International Law (5th ed) 1998 515. The general principle at international law, Mr. Rogers submitted, is that all states are obliged, insofar as possible, to resolve disputes by peaceful means, as provided for in Article 2 (3) of the UN Charter, which states:-

“All members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, shall not be compromised.”
Mr. Rogers argued that the current rules governing the lawfulness of the use of force are contained in the UN Charter and customary international law. The general rule, enshrined in Article 2 (4) of the UN Charter is that the use of force is prohibited. Article 2 (4) provides:-

“All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purpose of the United Nations.”
Article 2 (4) has been described by the International Court of Justice (ICJ) as a peremptory norm of international law, from which States cannot derogate. The effect of Articles 2 (3) and 2 (4) is, Mr. Rogers argued, that the use of force can only be justified as expressly provided for under the Charter, and even then only in situations where it is consistent with the United Nations purposes. The only exceptions to this general prohibition involve:-

(a) the use of force in necessary self defence in the event of an armed attack, until such time as the Security Council has taken measures necessary to maintain international peace and security (Article 51 of the UN Charter) or
(b) Security Council authorisation of the use of force, on the basis that the Council determines it necessary for the maintenance or restoration of international peace and security.
Mr. Rogers submitted that for any resort to armed force to be legitimate, it should fall within one of the foregoing exceptions. He argued that the State cannot provide aid or assistance to a belligerent engaged in armed conflict unless it has concluded that the involvement of that belligerent in the armed conflict is lawful.

Mr. Rogers in concluding this submission refrained from inviting the court to make any determination as to whether the use of force against Iraq by the United States and United Kingdom was unlawful in international law, contending that it was sufficient for present purposes that the court determine and declare that, having regard to the provisions of Article 29, it should not provide aid or assistance to the use of force against the State of Iraq without first making an enquiry and determination about the lawfulness or otherwise of the use of force.

The second submission is to the effect that the provision of such aid and assistance constitutes a breach of the generally recognised principles of international law and is therefore contrary to Article 29 of the Constitution in that it constitutes a breach of a neutral states’s duties in a war under customary international law.

Given that the Irish Government has expressly declared that Ireland is not a participant in the current conflict and that it is maintaining its military neutrality, it is in consequence, he submits, bound to apply those provisions of customary international law which apply to neutral States. These principles clearly indicate that a neutral state must not allow belligerents to move troops or munitions across its territory in time of war.

While a de minimis breach of this principle might not offend customary international law, the scale and degree of troop and munitions movements in this case could only be considered as constituting a clear breach of customary international law which, for the reasons already offered, constitute part of Ireland’s domestic law also.

Mr. Rogers third submission is that the aid and assistance rendered by Ireland to the military forces of the United States constitutes “participation” in a war and is therefore unconstitutional as no resolution authorising such participation has been passed under Article 28.3. If correct in this submission, Mr. Rogers argued that the permissions of the second and third named defendants to facilitate overflights, landings and troops movements within the State and the decision of the Government to maintain the continuance of those arrangements are void at law, unconstitutional and unlawful by virtue of Article 28.3.1.

Mr. Rogers submitted it was a matter of some importance to note that Article 49 of the Free State Constitution provided: “save in the case of actual invasion, the Irish Free State shall not be committed to active participation in any war without the assent of the Oireachtas”. In marked contrast, Mr. Rogers continued, the 1937 Constitution simply adopted the word “participation”. Mr. Rogers submitted that this change clearly lowered the threshold for the kind of participation which requires Dáil approval. He submitted that a level of aid and assistance which would be regarded as a breach of the status of neutrality could only be seen as a level of participation which requires a Resolution under Article 28.3.1.

He further submitted that the concept of participation could best be understood by considering relevant principles of international law. If Ireland could incur international responsibility for the use of armed force against another State, it could hardly be suggested that such a significant consequence would not be regarded as a ‘participation’.

Under Article 16 of the International Law Commission Articles on State Responsibility (adopted by the ILC in 2001) which are generally regarded as reflecting customary law, Ireland, by virtue of the aid and assistance it has and continues to offer, could be liable if found to be aiding or assisting the wrongful acts of another state.

Article 16 provides:-

“A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if –
(a) that State does so with knowledge of the circumstances of the internationally wrongful act; and

(b) the act would be internationally wrongful if committed by that State.”

The International Law Commissions commentary on Article 16 (which forms part of the official draft rules) states at paragraph 10:-

“The assisting State is responsible for its own act in deliberately assisting another State to breach an international obligation by which they are both bound. It is not responsible, as such, for the act of the assisted State.”
The Commentary on Article 16 makes it clear, it is submitted, that responsibility under Article 16 arises when another State commits a wrongful act but it arises from the conduct of the assisting State alone.

Professor Vaughan Lowe, in an article entitled: “Responsibility for the Conduct of other States” (Japanese Journal of International Law) 1 – 15 (2002) states in relation to Article 16:-

“Some aspects of the article are clear. The ILC has made plain that no particular kind or level of aid or assistance is necessary in order for responsibility to arise, as long as the aid or assistance must, as the ILC’s special rapporteurs put is “materially facilitates” or “contributes significantly to” the performance of the wrongful act. Neither state practice nor the work of the ILC indicates that it is necessary that the aid should have been essential for the achievement of the wrongful act. On the other hand, aid that assists in a remote and indirect or a minimal way is clearly not a sufficient basis for responsibility. There is, accordingly, a de minimis threshold, but no other limitation on the nature of the assistance. Common sense demands that there be a de minimis threshold. If it were otherwise, because practically every friendly contact with a foreign state might be said to lend at least moral support to its actions, the category of unlawful aid and assistance would become impossibly wide.”
Having regard to the threshold thus established by the ILC, Mr. Rogers argued that Ireland would not be able to defend itself at international law level by claiming that the aid and assistance it had furnished did not in its view amount to a “participation” when it clearly constituted a sufficient involvement to make it liable for the commission of a tort in international law.

The Defendants Case

As there were no significant differences between the submissions submitted on behalf of the first four named defendants by Mr. Gallagher S.C., and those submitted on behalf of the fifth and sixth named defendants by Mr. O’Donnell S.C., the same can be summarised together.

The defendants accept that the plaintiff has locus standi in the sense that he may, qua citizen, bring declaratory proceedings for relief under the Constitution. Insofar as the case under Article 28 goes, the defendants further accept that a justiciable issue arises under that Article. However, the defendants maintain that no justiciable issue arises under Article 29 because Article 29, it is contended, operates at the level of public international law and does not create individual rights or give rise to any binding obligations which require the international relations of the State to be conducted in any particular way. Particular reliance in this regard was placed on O’Laighleis [1960] I.R. 93, State (Sumers Jennings) v. Furlong [1966] I.R. 183 and Kavanagh v. The Governor of Mountjoy Prison [2002] 2 ILRM 81.

On behalf of the defendants it was stated that the courts had previously declined to intervene in Article 29 cases, even where a personal or private right of a constitutional nature was alleged to have been breached. In the instant case the plaintiff could not assert a private right but simply sought, as a concerned citizen, to hold the State to what he perceived as its duties and obligations arising under certain provisions of the Constitution.

The defendants contend that Sections 1 – 3 of Article 29 are not justiciable because they do not lay down any clear legal rules or import binding norms of international law capable of enforcement in Ireland’s own domestic courts. Article 29.3, it is argued, does not require the executive power of the State to be exercised in any particular way and any contention that the Executive is bound to act in accordance with generally recognised principles of international law, assuming such could be identified, had already been rejected by a Divisional Court of the High Court in State (Sumers Jennings) v. Furlong [1966] I.R. 183

Any other interpretation, it was submitted, would have staggering implications. The plaintiff’s contentions, if correct, would for example permit a challenge to a war declared by the Executive with the approval of the Dáil under Article 29.3, on the grounds that it was a war that did not comply with justice and morality, or the principle of pacific settlement of disputes, under Articles 29.1 and Article 29.2.

The text of Article 29, it was submitted, is not in terms suited to the creation of obligations enforceable by proceedings. Its terms are broad, somewhat vague and aspirational in nature. “Ireland” is the subject of each clause. Article 4 of the Constitution provides that the name of the State is Ireland and Article 5 provides that Ireland is a sovereign, independent and democratic state. Elsewhere in the Constitution, the State is referred to by the title “the State”. The deliberate use of the word “Ireland” in Articles 29.1, 2 and 3 suggest, it was argued, that these particular provisions are being addressed externally (rather than internally) and operate only in that forum.

It was argued that the conduct of international relations lies at the very heart of the executive function. Only the Executive can bind the State at international law. The Executive is, in turn, accountable to the Dáil and not both houses of the Oireachtas. Article 28.4 emphasises the exclusive role of the Executive and affirms the primary method of constitutional control, namely accountability to the directly elected House of the Oireachtas.

It was submitted that the emphasis repeatedly stated in the Constitution that the conduct of external relations of the State is consigned to the Executive is of particular significance. The area of Executive powers is defined in the Constitution (in negative terms as the area not the judicial or legislative powers) but neither the content nor manner of exercise of the powers is otherwise defined or circumscribed. The area of the executive function is, therefore, characterised by very significant freedom of discretion. (Crotty v. An Taoiseach [1987] 1 I.R. 713).

While the courts in ACT Shipping (PTE) Limited v. The Minister of the Marine [1995] 3 I.R. 406, Government of Canada v. EAT 2 I.R. 284 and McElhinney v. Ireland [1995] 3 I.R. 382 acknowledged that principles of international law could operate in domestic law, they were found capable of doing so in very specific circumstances where those principles did not conflict with any provision of either the Constitution, statute law or rule of common law. Further, they were admissible only at the behest of sovereign States or, in the case of individuals, to determine private law claims only.

Customary international law did not, it was submitted, enter Irish law at constitutional level and could not encroach upon any area of power or discretion conferred on the Executive by the Constitution. It could not operate to amend the Constitution by stealth. Nor could principles of customary international

“freeze-bind” the State in its conduct of international relations as a result of the practice of other sovereign states in a process in which the State itself might not participate in any way.

Counsel referred to MFM v. MC [2001] 2 IR 385 in which O’Sullivan J. had been invited to hold that the Constitution included a limited self perpetuating and

self-amending provision, namely, that pursuant to Article 29.3 it could incorporate principles of international law as and when they become generally recognised for the conduct of Ireland in its relations with other States. At p. 397 O’Sullivan J. however stated:-

“It seems to me that Bunreacht na hEireann provides at Article 46 an explicit mechanism for the amendment of the Constitution itself whether by way of variation, addition or appeal. I cannot construe Article 29.3 as in any way or in any case supplanting this mechanism. Not only does this sub article not say that the Constitution shall be amended in accordance therewith as appropriate but if this were to be applied it could indeed give rise to a situation where an instrument solemnly adopted by the people and solemnly amended from time to time by the people could also from time to time be amended without such ratification. This seems to me to be entirely repugnant to the fundamental principles which underpin the Constitution and which have been recognised in such cases as Byrne v. Ireland [1972] I.R. 241. Such an interpretation would, in truth, upend the Constitution itself.”
The defendants next submitted that there was no clear law of neutrality in international law. It was not sufficient, they argued, for the plaintiff to establish that neutrality, as such, is a recognised concept, even with some level of agreement as to the elements of its content. The plaintiff, it was submitted, must go further and establish as a generally recognised principle of international law the proposition that on the outbreak of hostilities, all non-belligerent States are obliged (and not merely permitted) as a matter of international law to adhere to the strict impartiality contemplated by the Hague Convention, 1907.

Article 38 of the Statutes of the International Court of Justice (ICJ) identifies as sources of international law, not only the conventions and treaties establishing rules expressly recognised by the contesting states, the general principles of law recognised by civilised nations, judicial decisions and the teachings of the most highly qualified authors, but also the international custom and practice of States. Since Article 29 requires any principle to be “generally recognised” that requirement necessarily implies paying due regard to the conduct of States. The most compelling evidence of whether any principle is generally recognised, is the conduct of other States and, in particular, this State. It was submitted that the schedule exhibited in Mr. Cooney’s affidavit relating to the conduct of this State during the Second World War provided compelling evidence that Ireland did not consider itself neutral in the strict Hague Convention sense. It was open to Ireland to adopt a qualified or nuanced form of neutrality arising as a consequence of its diplomatic relations with particular States. Such a form of neutrality had been adopted between 1939 and 1941 by the USA, during which period it had provided assistance to the Allies, culminating in the lend/lease programme and the escorting by US naval vessels of Allied shipping between Iceland and the US.

Since 1945, it was submitted that the practice of States contradicts rather than supports any general principle that on the outbreak of hostilities, any non belligerent was obliged to adopt a position of strict impartiality, so as, for example, to be obliged to refuse permission for overflights by a military aircraft of one of the belligerents. In essence, it was submitted, the concept of neutrality was at its height in the 19th century. That concept of neutrality was significantly adapted by, firstly, the League of Nations and then later by the UN Charter. The defendants relied in this regard on a passage in Roberts and Guelff – Documents on the Law of War (3rd Ed. P. 86) as follows:-

“The adoption of the UN Charter in 1945 increased the controversy over the status of a traditional concept of neutrality … the preferable view is to regard the traditional concept of neutrality as having been modified but not totally superseded by the UN Charter …
Security Council resolutions authorising economic and other sanctions, have called upon all states to recognise such sanctions. Further, some states not directly involved in UN authorised military action have granted transit rights or given other assistance to forces involved in such action. This is probative of the position that a new form of “non belligerency” or “qualified neutrality” has emerged, in which states not participating in the military action authorised by the Security Council may, nonetheless, take part in sanctions or provide other assistance … while some view the term “neutral” “non belligerent” and “other States not Parties to the conflict” as being more or less synonymous with exactly the same body of law applying to all, the distinction between neutrality and non belligerency in these treaty provisions is compatible with the view that third states may adopt an intermediate position in relation to a conflict, for example, favouring the victims of aggression in certain respects. In this reasoning “neutrals” are those states which apply the law of neutrality in its entirety, including its requirements regarding impartiality; while “non belligerents” or “other states not parties to the conflict” are those which, departing from certain aspects of the traditional law of neutrality, assist one of the parties to the conflict or discriminate against another.”

In relation to the submission under Article 28, the defendants urged the Court to exercise extreme restraint in considering whether or not to intervene, even if that issue was justiciable.

Firstly, the defendants stressed to the court that the decision of the Executive and the resolution of Dáil Éireann both enjoy a presumption of constitutionality (Goodman International v. Hamilton [1992] 2 I.R. 542 at 586/587). In present circumstances, it was submitted that that presumption must be especially strong given that:-

“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, that is it.”
(McGlinchey v. Ireland [1988] I.R. 567 at 582, per Barrington J.).
The defendants also opened to the Court a passage from a decision of the United States Supreme Court in Harisiades v. Shaughnessy (342 US 580 at 589) per Jackson J.:-

“Policies in relation to the conduct of foreign relations and the war power … are so exclusively entrusted to the political branches of Government as to be largely immune from judicial enquiry or interference.”
Thus, it was argued, the Court must start from the assumption that the Resolution correctly identifies and interprets the relevant Constitutional provisions and represents a considered view by Dáil Éireann of the nature and extent of its role in respect of the continued provision, in present circumstances, of the facilities in issue. Both decisions were made by appropriate decision makers within the sphere of responsibility designated by the Constitution for that purpose.

It followed from the foregoing, it was submitted, that a further ground for judicial restraint arose from the fact that the Resolution concerned the

inter-relationship between the Dáil and the Government. The Supreme Court had made it clear that the Courts would not:-

“Accept every invitation to interfere with the conduct by the Oireachtas of its own affairs: such an approach would not be consistent with the separation of powers enjoined by the Constitution.”
(Per Keane C.J. in Maguire v. Ardagh [2002] 1 IR 385 at 537).
Further in O’Malley v. An Ceann Comhairle [1997] 1 I.R. 427, the Supreme Court considered the issue of how questions in the Dáil should be framed for answer by Ministers of the Government and stated:-

“It is so much a matter concerning the internal working of Dáil Éireann that it would seem inappropriate for the Court to intervene except in some very extreme circumstances which it is impossible to envisage at the moment.”
It was submitted that an even greater obligation of restraint devolved on the judicial organ with regard to the question of what constitutes “participation” in war for the purposes of Article 28.3.1. The related questions of whether, and in what circumstances Ireland should participate in a war, and what constitutes “participation” for this purpose, are committed by the very text of the Constitution to the judgment of the Dáil and the Government. By way of illustration of the suggested approach the Court should adopt, counsel for the defendants referred the Court to the judgment of Brennan J. in the US Supreme Court in Baker v. Carr (369 US 182, 217 [1962]) when he stated:-

“Permanent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non judicial discretion; or the impossibility of a Courts undertaking independent resolution without expressing lack of respect due to coordinate branches of Government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.”
The defendants submitted that this reasoning applies a fortiori to this jurisdiction where, unlike the United States, the Executive is directly answerable to a key element of the legislative branch, given that Article 28.4.1 provides that the Government “shall be responsible to Dáil Éireann.” If the Dáil considered at any time that the Government had overreached its constitutional authority on this issue and that it usurped a power rightfully vested in the Dáil alone, it too had “ample powers” to remedy the situation. It could, for example, withhold confidence in the Government (Article 28.4.1), with the result that the Taoiseach would be obliged forthwith to resign unless the President dissolved Dáil Éireann (Article 28.10 and Article 13.2.2). Likewise, the Dáil could refuse to approve the Estimates (Article 28.4.), or approve appropriations of monies (Article 17).

The duty of restraint on the court had been highlighted time and time again in various decisions of the Supreme Court and the High Court, perhaps best encapsulated in the statement of Fitzgerald C.J. in Boland v. An Taoiseach [1974] I.R. 338 at 362 where he said:-

” … The Courts have no power, either express or implied, to supervise or interfere with the exercise by the Government for its executive functions, unless the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred upon it by the Constitution.”
The defendants submitted that further meaning was given to the phrase “clear disregard” by Murray J. in the course of his judgment in TD v. Minister for Education [2001] 4 IR 259 when he stated at p. 337:-

“In my view, the phrase ‘clear disregard’ can only be understood to mean a conscious and deliberate decision by the organ of State to act in a breach of its constitutional obligation to other parties, accompanied by bad faith or recklessness.”
It was submitted on behalf of the defendants that the Court should not interfere with the assessment which the Government and the Dáil had made, being one for which they are peculiarly well equipped and for which the court in contrast is peculiarly ill equipped. Otherwise, the court could in any given case become the arbiter of foreign policy without the constitutional safeguards that the Constitution provides.

Without prejudice to that submission, the defendants went on to discuss what ‘participation’ should be taken as meaning. The defendants submitted that the object of Article 28.3.1 is to ensure that the Government’s general constitutional authority to conduct foreign affairs is subject to the specific control of the Dáil, so as to provide the necessary democratic legitimacy for any such decision.

In the present instance, the court was concerned with the meaning of the word “participation.” In its ordinary sense, the term means “take part in”, a definition highlighted by the Irish text which uses the phrase “ná páirt a bheith.” As such, the defendants contended, the words imply a direct involvement in the object of the participation. When applied to a concept such as war, it necessarily implies joining into or becoming involved in the hostilities.

The defendants submit that the continued operation of an arrangement with another friendly power whereby that power permits the use of airspace or facilities for its military and civilian aircraft could not realistically be understood to convert Ireland into the status of a ‘participant’ in the war. The provision of the facilities was far removed from the war. Their provision did not involve Ireland in any decision relating to the war. It did not involve the commitment of any troops to the war or any involvement in hostile activities. The arrangement was no different from that provided by many other countries who clearly did not regard themselves as participating in the war.

Furthermore, it was contended, the use of the word “participation” in the same context as “declaration” of war suggests clearly an actual involvement in the hostilities. It was clear, the defendants submitted, that the reference to participation was designed to ensure that the Government could not commit Ireland to a war without the approval of the Dáil merely by refusing to declare war but nonetheless engaging in the hostilities. The primary distinction between “declare” and “participation” in this context related to the manner of involvement in the war rather than the type of conduct involved and certainly was not intended to cover a situation where the State had no direction, control or involvement in the war.

Mr. Gallagher submitted that the use of the term “active” in conjunction with the word “participation” in the Free State Constitution could not be relied upon as an aid to interpreting the word “participation” in Article 28 of the 1937 Constitution. Article 51 of the Free State Constitution provided that the Executive authority of the Irish Free State was vested in the King and exercisable in accordance with law. It followed that the very executive authority of which the declaration or participation in war is an attribute was vested in somebody different from the State and in an entity independent of the State. The context in which Article 49 existed bore no resemblance to the structure which now exists in Ireland under Article 28.3.1. In any event, he submitted, the term “active participation” was tautologous.

Finally, the defendants submitted that it was difficult to believe that the Constitution should be interpreted in a way whereby the court was asked, in effect, to substitute its judgment for that of Dáil Éireann and, in effect, to declare that the Dáil was wrong when it concluded that the maintenance of “long standing arrangements” did not involve a participation in war. The plaintiff was, for all practical purposes, inviting the Court to tell the Dáil that it resolve yet again an issue upon which it has already determined on the presumed basis that the Court was better suited than the Dáil for deciding what constituted participation in a war.

DECISION

(a) Preliminary: The war on Iraq and considerations of legality in the use of force

The plaintiff in the Statement of Claim delivered herein on the 24th of March 2003 alleges that the military attack on Iraq by the forces of the United States of America and the United Kingdom of Great Britain and Northern Ireland was illegal. It is contended that the military attack was a breach of Article 2 (3) and 2 (4) of the Charter of the United Nations which prohibit the threat or use of force against the territorial integrity of any State, subject to exception in cases of necessary self defence or in cases where the Security Council has authorised the use of force.

The final portion of par. 11 of the Statement of Claim asserts:-

“The said military attacks have not been authorised by the Security Council of the United Nations pursuant to Article 42 of its Charter. The attack by the said forces of the United States and of the United Kingdom upon the State of Iraq is contrary to the principles of international law and to the Charter of the United Nations and is unlawful.”
Notwithstanding the inclusion of such a claim, the plaintiff has not, in the course of the hearing before this court, invited the court to adjudicate or rule specifically on this issue, asserting that the plaintiff need not do so at this juncture at least. The plaintiff reserved his position to argue the matter further, if necessary.

However, as the issue has been raised before the court and then left to one side, and while the court will not adjudicate upon the issue, it is useful in the context of the remaining issues to be determined to consider a recent, and one might add topical, decision of a Divisional Court in England in CND v. Prime Minister of the United Kingdom, (judgment delivered on the 17th December 2002.) In those proceedings, the plaintiffs sought an advisory declaration as to the true meaning of U.N. Security Council Resolution 1441 and more particularly as to whether it authorised States to take military action in the event of non compliance by Iraq with its terms.

The case was relied upon by the defendants in this court on the basis that it throws into sharp focus, they say, the enormous difficulties which beset any court called upon to adjudicate upon the lawfulness of international agreements, or the propriety of the Executive’s behaviour in its international relations with other States. Given that the latter consideration lies very much at the heart of the issues before this court, the decision of the court is to that extent certainly of relevance and importance.

In refusing the relief sought, Lord Justice Simon Brown concluded, firstly, that the court had no jurisdiction to declare the true interpretation of an international instrument which had not been incorporated into English domestic law and which it was unnecessary to interpret for the purpose of determining a person’s rights or duties under domestic law. Secondly, the court in any event declined to embark upon the determination of an issue where to do so would be damaging to the public interest in the field of international relations, national security or defence: “Whether as a matter of juridical theory such judicial abstinence is properly to be regarded as a matter of discretion or a matter of jurisdiction seems to me for present purposes immaterial. Either way I regard the substantive question raised by this application to be non-justiciable.”

At pars. 37 – 40 of his judgment he stated:-

“What is sought here is a ruling on the interpretation of an international instrument, no more and no less. It is one thing … for our courts to consider the application of an international treaty by reference to the facts of an individual case. It is quite another thing to pronounce generally upon a treaty’s true interpretation and effect. There is no distinction between the position of the United Kingdom and that of all other States to whom Resolution 1441 applies. Why should the English courts presume to give an authorative ruling on its meaning? Plainly such a ruling would not bind other States. How could our assumption of jurisdiction here be regarded around the world as anything other than an exorbitant arrogation of adjudicative power?
The general rule is that, in the interest of comity, domestic courts do not rule on questions of international law which affect foreign sovereign states. As Diplock LJ. said in Buck v. Attorney General [1965] Ch. 745, 770:-
“For the English court to pronounce upon the validity of a law of a foreign sovereign State within its own territory, so that the validity of that law became the res of the res judicata in the suit, would be to assert jurisdiction over the internal affairs of that State. That would be a breach of the rules of comity. In my view, this court has no jurisdiction so to do.
… Here there is simply no foothold in domestic law for any ruling to be given on international law. There would need to be compelling reasons for the court to take the unprecedented step of assuming jurisdiction and no good reason not to. In fact, however, the opposite is the case.”
Lord Justice Simon Brown (at par. 42) went on to consider as a reason for refusing to intervene the following:-

” … the Executive is better placed than the court to make these assessments of the national interest with regard to the conduct of foreign relations in the field of national security and defence.”
The defendants contend, I believe correctly, that this case may be relied upon by the court as emphasising the strictly circumspect role which the courts adopt when called upon to exercise jurisdiction in relation to the Executive’s conduct of international relations generally.

Thus, while the legality of the war in Iraq may well be, in the words of a recent article about these proceedings in an Irish national newspaper “the elephant in the room that is impossible to ignore”, this case has proceeded in a manner where both sides have given that “elephant” a wide berth, a course which permits, indeed compels, this court to do likewise.

(b) Neutrality

Nothing in the submissions of the defendants suggests that this court is inhibited or precluded from, firstly, identifying a general principle of international law and then, secondly, considering if and how it may operate in domestic law.

Indeed, the courts in Ireland have been faced with and have discharged precisely such a task and function in cases such as ACT Shipping (PTE) Limited v. The Minister for the Marine [1995] 3 I.R. 406, Government of Canada v. Employment Appeals Tribunal [1992] 2 I.R. 484 and McElhinney v. Ireland [1995] 3 I.R. 382.

The statute of the International Court of Justice identifies the following sources of international law at Article 38.1:-

“(a) international conventions, whether general or particular, establishing rules expressly recognised by the contesting States
(b) international custom, as evidence of a general practice accepted as law.
(c) the general principles of law recognised by civilised nations
(d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations.”
Despite the great historic value attached by Ireland to the concept of neutrality, that status is nowhere reflected in Bunreacht na hEireann, or elsewhere in any domestic legislation. It is effectively a matter of government policy only, albeit a policy to which, traditionally at least, considerable importance was attached.

Ireland is thus in a different position than certain other States, who have incorporated a permanent status of neutrality in their domestic laws.

Without exhaustively requoting from the charters, conventions and writings relied upon by the plaintiff in this case, I am satisfied that there does still exist in international law a legal concept of neutrality whereunder co-relative rights and duties arise for both belligerents and neutrals alike in times of war in circumstances where the use of force is not ‘UN led’.

Traditionally, as noted by Oppenheim Lauterpacht (International Law) 1952 at 675, there was a duty of impartiality on neutral States which comprised abstention from any active or passive co-operation with belligerents. At par. 316 the authors state:-

“It has already been stated above that impartiality excludes such assistance and succour to one of the belligerents as is detrimental to the other, and, further, such injuries to one of the belligerents as benefit the other, and that it includes active measures on the part of the neutral for the purpose of preventing belligerents from making use of neutral territories and neutral resources for their military and naval purposes …”
1907 Hague Convention V is asserted to be declaratory of customary international law. The various texts relied upon by the plaintiff certainly tend to support such an interpretation. The defendants have argued that a more qualified or nuanced form of neutrality also exists, being one which has been practised by this State for many years, and indeed throughout the Second World War. However, it does not appear to me that even that form of neutrality is to be seen as including the notion that the granting of passage over its territory by a neutral State for large numbers of troops and munitions from one belligerent State only en route to a theatre of war with another is compatible with the status of neutrality in international law. No authority has been offered to the court by the defendants to support such a view. Nor can it be an answer to say that a small number of other states have done the same thing in recent times. Different questions and considerations may well arise where measures of collective security are carried out or led by the UN in conformity with the Charter: Article 2 (5) of the Charter obliges all members to assist the UN in any action it takes in accordance with the Charter.

The court is prepared to hold therefore that there is an identifiable rule of customary law in relation to the status of neutrality whereunder a neutral state may not permit the movement of large numbers of troops or munitions of one belligerent State through its territory en route to a theatre of war with another.

(c) Incorporation of International law in Irish domestic law

It now becomes necessary to consider how international law interacts with Irish domestic law.

One may begin by saying that established principles of customary international law may be incorporated into Irish domestic law providing that they are not contrary to the provisions of the Constitution, statute law or common law. (Brownlie: Public International Law (5th Ed) p. 42). Further, since customary international law evolved from a practice or course of conduct which in time became widely accepted, it is not law made in the sense envisaged by Article 15.2.1 of the Constitution and, accordingly, that Article does not per se inhibit the incorporation of customary international law into Irish domestic law, subject to the proviso that there is no resultant conflict with the Constitution, statute law or common law.

This was the position as found by Barr J. in ACT Shipping (PTE) Limited v. Minister for the Marine [1995] 3 I.R., a case in which the learned judge followed In Re O’Laighleis [1960] I.R. 93.

That latter case concerned the applicability of the European Convention of Human Rights within the State. It was moreover a case in which the plaintiff asserted a personal right arising out of his arrest and detention under Section 30 of the Offences Against the State Act, 1939. The Supreme Court held that the Convention was not part of the domestic law of the State and, under Article 29 of the Constitution, it could not be so.

This case is of particular importance having regard to the clarity of the obligations contained in the Convention, in contrast with the often somewhat “woolly” principles of customary international law. The principle however is the same when it comes to considering the role of international law in Irish domestic law. I propose to set out a fairly lengthy passage from the judgment of Maguire C.J. because I believe it encapsulates an authoritative statement of the law in this country which has been followed ever since.

At p. 123 he stated:-

“Ireland has a written, rigid Constitution which came into force on the 29th December, 1937, having been enacted by the People on the 1st July, 1937. Article 29 of the Constitution deals with “international relations”. Mr McBride relied upon ss. 1 and 3 of Article 29, which are as follows:-
“1. Ireland affirms its devotion to the ideal of peace and friendly co-operation amongst nations founded on international justice and morality.
3. Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other States.”
These provisions, Mr. McBride submitted, reproduce the pre-existing common law, and by the common law, he said, those principles which were commonly accepted as binding by civilised nations became part of the domestic law unless they could be shown to be contrary to it. He referred to the English authorities, Westrand Central Gold Mining Co. v. Rex [1905] 2 K.B. 391; Chung Chi Cheung v. The King [1939] AC 160:- ” … so far, at any rate, as the courts of this country are concerned, international law has no validity save in so far as its principles are accepted and adopted by our own domestic law. There is no external power that imposes its rules upon our code of substantive law or procedure. The courts acknowledge the existence of a body of rules which nations accept amongst themselves. On any judicial issue they seek to ascertain what the relevant rule is, and, having found it, they will treat it as incorporated into the domestic law, so far as it is not inconsistent with rules enacted by statutes or finally declared by their tribunals?”
Clauses 1 and 3 of Article 29 of the Constitution clearly refer only to relations between States and confer no rights on individuals; they can in no way assist Mr. McBride’s argument.
Nor is Mr. McBride’s submission aided by what he says is the position at common law, as set out in Lord Atkins speech. Inconsistency with municipal law is there stated to be a ground upon which the common law rejects the principles of international law. Mr. McBride submits that the Act of 1940 is inconsistent with the provisions of the Convention. If it is, then clearly by the common law principles relied upon the Act prevails over the Convention. When the domestic law makes its own provisions it cannot be controlled by any inconsistent provisions in international law: Mortensen v. Peters [1906] 8 F. 93. The principle of incorporation upon which Mr. McBride relies applies to such parts of international law as are based on universally recognised custom and not to such parts as depend upon convention.
The insuperable obstacle to importing the provisions of the Convention for the protection of Human Rights and Fundamental Freedoms into the domestic law of Ireland – if they be at variance with that law – is, however, the terms of the Constitution of Ireland. By Article 15.2.1 of the Constitution it is provided that “the sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.”
Moreover, Article 29, the Article dealing with international relations, provides at Section 6 that “no international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas.

The Oireachtas has not determined that the Convention of Human Rights and Fundamental Freedoms is to be part of the domestic law of the State, and accordingly this court cannot give effect to the Convention if it be contrary to domestic law or purports to grant rights or impose obligations additional to those of domestic law.
No argument can prevail against the express command of Section 6 of Article 29 of the Constitution before judges whose declared duty it is to uphold the Constitution and the laws.
The court accordingly cannot accept the idea that the primacy of domestic legislation is displaced by the State becoming a party to the Convention for the protection of Human Rights and Fundamental Freedoms. Nor can the court accede to the view that in the domestic forum the Executive is in any way estopped from relying on the domestic law. It may be that such estoppel might operate as between the High Contracting Parties to the Convention, or in the court contemplated by Section IV of the Convention if it comes into existence, but it cannot operate in a domestic court administering domestic law.”
The last sentence of this quotation provides an insight into how customary international law may operate in domestic law. Where the rights of States inter se are concerned, rules of customary international law may create rights and duties between states in a variety of situations.

By way of example, a foreign State may invoke customary international law to protect its position in this State. That is precisely what occurred in two of the cases relied upon by the plaintiff, (Govt. of Canada v. EAT and McElhinney v. UK) where the respective governments successfully invoked the doctrine of sovereign immunity by way of defence to proceedings brought against those governments in an Irish forum.

Over a long number of years since O’Laighleis was determined, and even in cases where invasion of personal rights was alleged, the Irish courts, have repeatedly stressed, as exemplified by the decision of O’Sullivan J. in MFN v. MC [2001] 385 and the Supreme Court (Fennelly J.) in Kavanagh v. Governor of Mountjoy Prison [2002] 2 I.L.R.M. that a clear distinction is to be maintained between obligations binding in international law and those which are binding by virtue of domestic law. As stated by Fennelly J. in the latter case at p. 94:-

“The Constitution establishes an unmistakeable distinction between domestic and international law. The Government has the exclusive prerogative of entering into agreements with other States. It may accept obligations under such agreements which are binding in international law. The Oireachtas, on the other hand, has the exclusive function of making laws for the State. These two exclusive competences are not incompatible. Where the Government wishes the terms of an international agreement to have effect in domestic law, it may ask the Oireachtas to pass the necessary legislation. If this does not happen, Article 29.6 applies. I am prepared to assume that the State may, by entering into an international agreement, create legitimate expectation that its agencies will respect its terms. However, it could not accept such an obligation so as to affect either the provisions of a statute or the judgment of a court without coming into conflict with the Constitution.”
One can only conclude therefore that principles of international law enter domestic law only to the extent that no constitutional, statutory or other judge made law is inconsistent with the principle in question. Where a conflict arises, the rule of international law must in every case yield to domestic law.

(4) Justiciablity under Article 29

Two issues arise for determination under this heading:-

(a) Does Article 29 confer individual rights?
(b) If so, do the provisions of Article 29 create binding rules whereby the Executive is bound to act in accordance with generally recognised principles of international law once identified.

The overwhelming line of judicial authority on issue (a) is to the effect that no individual rights arise under Article 29 of the Constitution.

I have already referred to that passage of the judgment of Maguire C.J. in O’Laighleis in which he confirmed that ss. 1 – 3 of Article 29 of the Constitution clearly refer only to relations between States and confer no rights on individuals.

A similar conclusion was arrived at by a Divisional Court of the High Court in the State (Sumers Jennings) v. Furlong [1966] I.R. 183 and by the Supreme Court in Kavanagh v. Governor of Mountjoy Prison [2002] 2 ILRM 81.

In Kavanagh, Fennelly J. stated as follows at p. 90:-

“For the purposes of this analysis, it can be assumed without deciding that the appellant is correct in his contention that the principle of equal treatment before the law has become a generally recognised principle of international law and even that its scope and content has expanded sufficiently since O’Laighleis was decided to encompass the appellant’s treatment at the hands of the Director of Public Prosecutions. It can even be assumed that, again without so deciding, that the principles of international law which Article 29.3 requires the State to respect include the rights claimed by the appellant.
The difficulty for the appellant on this application does not lie on the quality of the principle of equality. It is to be found in the wording of the constitutional provisions. The obligation of Ireland to respect the invoked principles is expressed only in the sense that it is to be “its rule of conduct in its relations with other States”. It is patent that this provision confers no rights on individuals. No single word in the section even arguably expresses an intention to confer rights capable of being invoked by individuals.”
It seems to this court that the views of the Supreme Court, so trenchantly expressed by Fennelly J., must be taken as being quite determinative of this particular point. I therefore find in favour of the defendants on the issue of justiciability in respect of all arguments sought to be advanced by the plaintiff under Article 29 of the Constitution.

(b) The court must nonetheless consider whether, in the event of its conclusion under (a) being found to be incorrect, the provisions of Article 29.1 – 3 create binding obligations on the State whereby it must act in accordance with generally recognised principles of international law if and when same are identified.

Obviously the Constitution must be given a harmonious interpretation, so that consideration of this issue of necessity involves considering not merely Article 29 of the Constitution but those other provisions of the Constitution which bear on the topic. These include Article 5: “Ireland is a sovereign, independent, democratic State”. Article 6 provides, by Section 1, that “all powers of government, legislative, executive and judicial, derive, under God, from the people …”, and by Section 2, that “these powers of government are exercisable only by or on the authority of the organs of State established by this Constitution.”

Article 15 provides that the sole and exclusive power of making laws for the State is vested in the Oireachtas, and that no other legislative authority has power to make laws for the State. Article 28 provides that the executive power of the State shall, subject to the provisions of the Constitution, be exercised by or on the authority of the government. Under 4.1 of that Article, the Government is responsible to Dáil Éireann. Article 29.5.1 provides that “every international agreement to which the State becomes a party shall be laid before Dáil Éireann” and Section 6 of that Article provides “no international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas.”

These Articles demonstrate that the Government, and the Government alone, can exercise the executive power of government. Its freedom and discretion is limited only by those exceptions as provided for in the Constitution.

The extent of restraints on Executive power, and the role of the courts in relation thereto, were comprehensively addressed by Walsh J. in the course of his judgment in Crotty v. An Taoiseach [1987] IR 713.

At p. 777 he stated:-

“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.”
At p. 778 he continued as follows:-

“The powers of external sovereignty on the part of the State do not depend on the affirmative grant of this in the Constitution. They are implicit in the provisions of Article 5 of the Constitution. The State would not be completely sovereign if it did not have in common with other members of the family of nations the right and power in the field of international relations equal to the right and power of other States. These powers of the State include the power to declare war or to participate in a war, to conclude peace, to make treaties, and maintain diplomatic relations with other States.
However, the exercise of the powers is limited. In the first instance, the Government alone has the power, as already mentioned, to speak and listen as the representative of the State, and, subject to the constitutional restraints, to make treaties. Article 28, s. 3, subsection 1 of the Constitution provides that war shall not be declared and the State shall not participate in any war save with the assent of Dáil Éireann. That is one express constitutional prohibition on the exercise by the Government of its power in its international relations.”
The defendants attach considerable significance, and I think correctly, to the fact that nowhere in this portion of his judgment does Walsh J. suggest that the Executive is inhibited in its international relations or in the exercise of sovereign power by anything contained in Article 29.1 – 3. On the contrary, Walsh J. emphasises repeatedly that the Executive cannot be told, either externally or internally, how to conduct its relations with other States. This establishes, in my view, the accuracy of the defendants contention that the decision in Crotty v. An Taoiseach supports their position, rather than that of the plaintiff.

The following observations of Walsh J. at p. 782 also appear to be relevant:-

“I mentioned earlier in this judgment that the Government is the sole organ of the State in the field of international relations. This power is conferred upon by it by the Constitution which provides, in Article 29.4 that this power shall be exercised by or on authority of the Government. In this area, the Government must act as a collective authority and shall be collectively responsible to Dáil Éireann and ultimately to the people. In my view, it would be quite incompatible with the freedom of action conferred on the Government by the Constitution for the Government to qualify that freedom or to inhibit it in any manner by formal agreement with other States as to qualify it.”
Finally, at p. 783 he stated:-

“In enacting the Constitution the people conferred full freedom of action upon the Government to decide matters of foreign policy and to act as it thinks fit on any particular issue so far as policy is concerned and as, in the opinion of the Government, the occasion requires. In my view, this freedom does not carry with it the power to abdicate that freedom or to enter into binding agreements with other States to exercise that power in a particular way or to refrain from exercising it save by particular procedures, and so to bind the State in its freedom of action in its foreign policy. The freedom to formulate foreign policy is just as much a mark of sovereignty as the freedom to form economic policy and the freedom to legislate … the foreign policy organ of the State cannot, within the terms of the Constitution, agree to impose upon itself, the State or upon the people the contemplated restrictions upon freedom of action. To acquire the power to do so would, in my opinion, require a recourse to the people “whose right it is” in the words of Article 6 ” … in final appeal, to decide all questions of national policy, according to the requirements of the common good.”
For these reasons, the court concluded that the assent of the people was a necessary pre-requisite to the ratification of so much of the Single European Act as consisted of Title III thereof.

If executive powers conferred on the Executive by the Constitution can only be depleted or removed by referendum, can it ever be said that the wide discretion so accorded to it in foreign policy and conduct in international relations can be curtailed by the operation of some general principle of customary law? In my view the answer can only be in the negative.

In reaching this conclusion, I am mindful that the implications of holding to a contrary view would inevitably include the following:-

(a) the conduct of international relations, normally characterised by discretion, flexibility and the ability to adapt to changing circumstances, would now be constrained by constitutional rules, the content of which would be impossible to determine without a court ruling
(b) the generally recognised principles of international law themselves are not defined by the Constitution and are not discernible by any process of interpretation of it and are liable to disputes
(c) although the conduct of international relations sometimes requires urgent action, there could be no certainty that any step would be consistent with the Constitution without prior declarations from the courts
(d) while it is acknowledged that the generally recognised principles of international law may change if the practice of States change, Ireland alone would be freeze-bound by the pre-existing principles. It could not itself be a participant in any such change. Ireland would thus have to conform to a norm established by the practice of other States, but could not become one of the States whose conduct could change such a norm
(e) interpretation of the Constitutional principles as argued for by the plaintiff would clearly permit a challenge to a war declared by the Executive even with the approval of the Dáil under Article 29.3, on the grounds that it was a war that did not comply with justice and morality, or the principle of pacific settlement of disputes, under Articles 29.1 and 29.2.
I accept and hold with the submission of the defendants that the provisions of Article 29.1 – 3 are to be seen therefore as statements of principle or guidelines rather than binding rules on the Executive.

I am more than happy to accept as an authority in this respect the views of Henchy J. in the State (Sumers Jennings) v. Furlong [1966] I.R. 183 when he stated at p. 190:-

“First, Section 3 of Article 29 of the Constitution was not enacted, and is not to be interpreted in these courts, as a statement of the absolute restriction of the legislative powers of the State by the generally recognised principles of international law. As the Irish version makes clear, the Section merely provides that Ireland accepts the generally recognised principles of international law as a guide (ina dtreoir) in its relations with other States.”
I accept the submission of the defendants that the Constitution is not to be treated like an ordinary statute. While it has precise legal provisions, it also has less precise provisions, such as those relating to fundamental freedoms. It also includes aspirational or declaratory provisions which cannot be made the subject matter of binding legal norms. The declarations contained in Article 29.1 – 3 seem to me to fall into this last category.

I further accept the submission of the defendants to the effect that the employment of the word “Ireland” in Article 29 (rather than “the State”) is also indicative of the fact that these provisions are entirely addressed to other nations and not to individuals. They are, as Mr. Gallagher suggests, more akin to the kind of assertion one might find in the preamble to a convention, or a treaty agreed between sovereign States.

I have concluded therefore on this aspect of the case, that international law is only admissible in domestic law to the extent already indicated where in certain limited situations it may be availed of to determine private law claims, absent some contrary or conflicting provision of either the Constitution, statute law or common law. It may also avail other States in their dealings with this State on the international plane. It cannot however impose binding public law obligations on the Executive towards its own citizens under Article 29 for all the reasons stated.

Accordingly I find in favour of the defendants on all aspects of the case under Article 29. It follows from this conclusion that I do not accept the plaintiff’s view that the court should hold that the Government are obliged as a matter of law under Article 29 to form any particular view in relation to a war. Its only reviewable aspect lies in compliance with the requirements of Article 28.

(e) Article 28 and the issue of alleged participation

Both sides accept that there is a justiciable issue under Article 28.

However, that said, both sides also agree that the exercise of its jurisdiction by the court in circumstances such as these must be subject to restraint of an unusual degree. I have already set out in the course of summarising the defendants arguments the various cases which they rely upon to assert the considerations going to the exercise of restraint as follows:-

(a) there is a presumption of constitutionality in favour of both the Government decision and the existing Dáil Resolution

(b) both decisions were made within the particular spheres of designated responsibility of the Executive and Dáil Éireann within the Constitution

(c) the matter is one uniquely and particularly within the Executive remit.

It is submitted, and this court accepts, that quite extraordinary circumstances would require to be established for this court to intervene in the constitutional process which has already taken place.

There is no suggestion of any procedural deficiency or irregularity in the steps taken by the Government to have its decision approved by Dáil Éireann. It is the merits of the decision taken and not the decision-making process which is under attack. That being so, the court is, in effect, being asked to “second guess” the decision of the Government and the resolution of Dáil Éireann to the effect that the State was not participating in a war.

The restraints on court intervention in such circumstances were most simply stated by Fitzgerald C.J. in Boland v. An Taoiseach [1974] I.R. at p. 362 when he stated:-

” … in my opinion, the courts have no power, either express or implied, to supervise or interfere with the exercise by the Government of its executive functions, unless the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred upon it by the Constitution.”
This approach has been confirmed by the Supreme Court in Maguire v. Ardagh [2002] 1 IR 385, Kavanagh v. The Government of Ireland [1996] 1 I.R. 321, and indeed in Crotty v. An Toaiseach [1987] IR 713.

In the course of their submissions, the defendants referred to the decision of The United States District Court (Columbia District) in Ange v. Bush (752 F. Supp. 509; 1990 US. Dist). I propose to refer to two passages of relevance from the judgment of Lamberth J. at p. 5 to the following effect:-

“The judicial branch … is neither equipped nor empowered to intrude into the realm of foreign affairs where the constitution grants operational powers only to the two political branches and where decisions are made based on political and policy considerations. The far reaching ramifications of those decision should fall upon the shoulders of those elected by the people to make those decisions. Certainly, “nothing in the structure of our government or the text of our constitution would warrant judicial review by standards which would require the judicial branch to equate its political judgment with that of Congress, or of the President.”
Later at the same page he stated:-

“The various provisions of the Constitution do not grant the war power exclusively to either the legislative or the executive branch. The powers granted to both branches, however, enable those branches to resolve the dispute themselves. Meddling by the judicial branch in determining the allocation of constitutional powers where the text of the constitution appears ambiguous as to the allocation of those powers ” extends judicial power beyond the limits inherent in the constitutional scheme for dividing federal power”. Rendering a decision on the merits in this case would pose a greater threat to the constitutional system than would the principled exercise of judicial restraint.” (Adopting Riegle v. Federal Open Market Committee 656 F. 2d at 880).
I have already referred to the CND case in England in which similar sentiments were expressed.

Mr. Gallagher suggested on behalf of the defendants that Murray J. in the course of his judgment in TD v. Minister for Education [2001] 4 IR 259 had extended the meaning of the phrase “clear disregard” where he stated at p. 337:-

“In my view the phrase “clear disregard” can only be understood to mean a conscious and deliberate decision by the organ of State to act in breach of its constitutional obligation to other parties, accompanied by bad faith or recklessness. A court would also have to be satisfied that the absence of good faith or the reckless disregard of rights would impinge on the observance by the State party concerned of any declaratory order made by the court.”
However, I think Mr. Finlay S.C. was correct when in the course of his reply to the defendants submissions he pointed that this observation was made while the learned judge was addressing “other forms of mandatory order” and must be seen in that light.

Nonetheless, this court does accept, for all the reasons stated, that some quite egregious disregard of constitutional duties and obligations must take place before it could intervene under Article 28 of the Constitution. This court is not all persuaded that any untoward conduct has occurred such as would even warrant examining further the particular decision and resolution, yet alone making a determination as to their correctness or otherwise.

The judicial organ does not decide an issue of ‘participation’ in this context as a primary decision maker. Under the Constitution, those decisions are vested in the Government and Dáil Éireann respectively. This is not a situation where the court can approach the matter on a “clean sheet” basis, ignoring decisions made by those constitutionally designated to do so within their own special areas of competence.

The issue of ‘participation’ is not a black and white issue. It may well ultimately be, as stated by the Taoiseach, a matter of “substance and degree”. However, that is quintessentially a matter for the Government and the elected public representatives in Dáil Éireann to determine and resolve. In even an extreme case, the court would be still obliged to extend a considerable margin of appreciation to those organs of State when exercising their functions and responsibilities under Article 28.

The plaintiff is effectively asking that the Dáil be told by this court to resolve afresh on a matter on which it has already resolved on the presumed basis that the court is better suited than the Dáil for deciding what constitutes ‘participation’ in a war. The court cannot without proof of quite exceptional circumstances, accept this contention and accordingly the plaintiff’s claim under Article 28 of the Constitution also fails.

 

Dubsky v Government of Ireland

[2005] I.E.H.C. 442

Judgment delivered by Macken J. on the 13th day of December 2005
These judicial review proceedings arise in the wake of the terrorist attacks of 11th September 2001 in the United States and the subsequent U. S. led military action in Afghanistan. On 12th September, 2001, Resolution 1368 (2001) was passed by the Security Council of the United Nations in which it unequivocally condemned the terrorist attacks and expressed “its readiness to take all necessary steps to respond to the terrorist attacks…and to combat all forms of terrorism”. The Resolution called on “all states to work together urgently to bring justice to the perpetrators, organisers and sponsors of these terrorist attacks”. These sentiments were repeated in Resolution 1373 of the Security Council of the 28th September, 2001.

The affidavit of Mr. David Cooney, Political Director of the Department of Foreign Affairs sworn on the 19th September 2002, outlines the respondents’ view of the response to the events which surrounded the military action commenced in Afghanistan by a coalition of states led by the United States. According to that affidavit, the United States, having established links between Al Qaeda and the Taliban regime in Afghanistan, the coalition launched a military campaign against the Al Qaeda network and the Taliban in that country. The Al Qaeda camps were destroyed and the Taliban overthrown. The international community thereafter established an Interim Authority in December 2001, which was subsequently replaced by a transitional authority in June 2002.

According to the affidavit evidence filed before the court, the response of the Irish Government as to the terrorist attacks in September 2001, and as to Resolution 1368 (2001) was outlined in a speech made by the Taoiseach in which it was articulated that the State would, in so far as it was necessary, facilitate the overflight, landing and refuelling of aircraft engaged in pursuit of Resolution 1368(2001), and this position was duly communicated to Mr. Powell, then Secretary of State for the United States.

The applicant in these proceedings is seeking to challenge, by way of judicial review, the first named respondent’s decision to permit aircraft involved in the military action in Afghanistan to overfly the State and/or to land and refuel within the State, without the assent of the Dáil. It is the applicant’s contention that this assent is required by Article 28 of the Constitution. He also seeks to have struck down the permissions actually granted by the second or third named respondents allowing aircraft to overfly the State or to land or refuel within the State.

Relief

The applicant obtained leave to apply for judicial review on the 13th September 2002 by order of this Court (Finnegan P.) The reliefs sought by the applicant were originally more extensive, but, pursuant to order of this Court, are now the following:
1. An order of certiorari removing for the purpose of being quashed the decision of the First Named Respondent to open the airports and airspace of the State to aircraft involved in or relevant to military action in Afghanistan in purported pursuance of United Nationals Security Council resolution 1368, and/or removing for the purpose of being quashed the decisions of the second named respondent pursuant to the Air Navigation (Foreign Military Aircraft) Order 1952 allowing such aircraft to overfly or land in the State and/or removing for the purpose of being quashed the decision of the third named Respondent pursuant to Article 5 of the Air Navigation (Carriage of Munitions of War, Weapons and Dangerous Goods) Order, 1973, as amended by the Air Navigation (Carriage of Munitions of War, Weapons and Dangerous Goods) Order, 1989, exempting such aircraft from the prohibition on carriage of munitions of war including weapons and dangerous goods.
2. If necessary, a declaration that the said Orders of 1952, 1973, and 1989 are ultra vires, unconstitutional and void and/or the Air Navigation Act, 1946 and in particular s.5 thereof, is unconstitutional and void insofar as it authorises the said orders.
3. A declaration that the giving of permission allowing the said aircraft to fly and/or land in the State and/or from the giving of any other assistance to states involved in military action in Afghanistan is in breach of Article 28.3.1.of the Constitution.

Grounds for seeking relief:
The permitted grounds on which the relief is sought are as follows:

1. The State by assisting the military action in Afghanistan is declaring and/or participating in a war without the assent of the Dáil Éireann contrary to Article 28.3.1.
2. The military action in Afghanistan is contrary to the Constitution in particular, Articles 29.1 to 4 thereof.
3. The impugned decisions are not authorised by the Orders of 1952, 1973, and 1989. If it is found that the decisions were authorised, the said orders are ultra vires and unconstitutional and void and/or the Air Navigation Act, 1946 and, in particular, s. 5 thereof, is unconstitutional and void on the grounds of excessive delegation of power, contrary to Article 15 of the Constitution.

By a Statement of Opposition filed on 31st October 2002 the respondents pleaded, in essence:
1) Affording the facility to foreign military aircraft or to commercial aircraft carrying munitions and/or weapons to pass through Irish airspace, or to have landing or refuelling facilities does not constitute participation in any war;
2) There is not and has not been, any war between the United States and its allied and Afghanistan as the term “war” is employed in Article 28.3 of the Constitution. Without prejudice to the foregoing, the United States insofar as it is involved in military action in Afghanistan, is acting with the consent of the Government of that country, and has not declared as against it.
3) In the premises, the assent of Dáil Eireann is not required, whether pursuant to the provisions of Article 18.3 or otherwise, in order for the respondent to allow the facilities complained of.
4) In particular pursuant to the provisions of Article 28.4.1 of the Constitution, the executive power of the State in or in connection with its external relations shall in accordance with that Article be exercised by or on the authority of the Government. The determination to allow the use of the facilities complained of was made in accordance with such provisions, in the exercise of that executive power, pursuant to the mandates of Resolution 1368 (2001) of the Security Council of the United Nations and having regard to the obligations of the State as a matter of international law, consequent upon the United Nations Charter and in particular Articles 25 and 49 thereof.
5) In the premises, the allegation that the military action in Afghanistan is contrary to international law is denied. Further, or in the alternative to this last plea, the applicant has no entitlement to seek judicial review pursuant to the provisions of Article 29.1-4 of the Constitution of Ireland, and the respondents are not in breach of it.
6) This Court does not have jurisdiction or power to adjudicate upon the compatibility of the actions occurring outside the jurisdiction of other Sovereign States or persons outside the State with the provisions of the Constitution, which provisions do not purport to nor in fact govern such actions. The assertion therefore that the military action in Afghanistan is an infringement of the human rights of any person is denied, whether on the basis suggested or otherwise.
7) Further, the provisions of the Air Navigation Act 1946 are not contrary to the Constitution. Section 5 of the said Act does not entail an excessive delegation of powers as alleged, and neither that or any other provision of the said Act entail any unjustified or other discrimination, contrary to the provisions of Article 40 of the Constitution.
8) Without prejudice to the right of the respondents to contend that the Statement of Grounds discloses no basis for impugning the provisions of the said Act, Section 5 thereof read alone and/or in conjunction with the provisions of inter alia sections 9 and 11 specifies and defines the principles and policies pursuant to which Regulations made under that Act are to be promulgated
9) The provisions of the Air Navigation (Foreign Military Aircraft) Order 1952, and of the Air Navigation (Carriage of Munitions of War, Weapons and Dangerous Goods) (Amendment) Orders 1973 and 1989 are duly authorised and are intra vires the provisions of the said Act of 1946, and each and every determination of the second named Respondent pursuant to the said Order of 1952 or of 1973 or of 1989 are authorised by and in accordance with the said Orders.
10) The Applicant is disentitled, by reason of laches and acquiescence, to seek the relief claimed and does not enjoy locus standi to do so.
11) Having regard to the provisions of the Constitution, and having regard to the vesting in the Government of the power of the State the power to declare or participate in a war, and to the separation of powers envisaged by the Constitution, disputes implicating the such issues, or the proper meaning and effect of instruments of international organisations and/or the effect of actions of foreign sovereign governments outside the State, are not matters which in the circumstances of this case, are justiciable at the behest of the applicant, but rather are matters of which this Court should decline jurisdiction.

Relevant Constitutional and Legislative Provisions

Article 15.2 of the Constitution of Ireland states:

“1o The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.
2o Provision may however be made by law for the creation or recognition of subordinate legislatures and for the powers and functions of these legislatures.”

Article 15.6 of the Constitution states:
“1o The right to raise and maintain military or armed forces is vested exclusively in the Oireachtas.
2o No military or armed force, other than a military or armed force raised and maintained by the Oireachtas, shall b e raised or maintained for any purpose whatsoever.”

Article 28(3) of the Constitution states:
“1° War shall not be declared and the State shall not participate in any war save with the assent of Dáil Éireann.
2° …

3° Nothing in this Constitution other than Article 15.5.2° shall be invoked to invalidate any law enacted by the Oireachtas which is expressed to be for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion, or to nullify any act done or purporting to be done in time of war or armed rebellion in pursuance of any such law. In this sub-section “time of war” includes a time when there is taking place an armed conflict in which the State is not a participant but in respect of which each of the Houses of the Oireachtas shall have resolved that, arising out of such armed conflict, a national emergency exists affecting the vital interests of the State and “time of war or armed rebellion” includes such time after the termination of any war, or of any such armed conflict as aforesaid, or of an armed rebellion, as may elapse until each of the Houses of the Oireachtas shall have resolved that the national emergency occasioned by such war, armed conflict, or armed rebellion has ceased to exist.”

Article 28.4.1 o of the Constitution provides:

“The Government shall be responsible to Dáil Eireann.”

The relevant sections of Article 29 provide:
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.
2° For the purpose of the exercise of any executive function of the State in or in connection with its external relations, the Government may to such extent and subject to such conditions, if any, as may be determined by law, avail of or adopt any organ, instrument, or method of procedure used or adopted for the like purpose by the members of any group or league of nations with which the State is or becomes associated for the purpose of international co-operation in matters of common concern.
… .”

The control of landing or the overflying of foreign aircraft is governed by a legislative scheme. Included in this scheme, being the most germane to the issues between the parties in these proceedings, are a number of Orders made pursuant to the Air Navigation and Transport Act, 1946 (hereafter “the Act of 1946”), Section 5 of which provides that an Order made by the Minister for Industry and Commerce under the Act of 1946 can be made applicable to any aircraft in or over the State, and authorises the Minister to make Regulations in respect of such matters and things as might be specified in such Order.
The relevant provisions of the Act of 1946 provide as follows:

S. 2 … “the Minister” as the Minister for Industry and Commerce.
… .
S. 3(1) Subject to the provisions of this section, this Act shall not apply to State aircraft.
S.3(2) The Minister may, by order, direct that such provisions of this Act or any other made thereunder, as may be specified in such order shall, with or without mode indications apply to State aircraft, and whenever any such order is made and is in force, such of the said provisions as may be specified in such order shall, subject to the modifications (if any) as may be specified therein, have the force of law in the State”.

S. 5 (1) An order made by the Minister under this Act may be made applicable to any aircraft in or over the State or to Irish aircraft wherever they may be.

(2) The Minister shall not, in any order made by him under this Act, make provisions in relation to the Customs except with the concurrence of the Minister for Finance.

(3) An order made by the Minister under this Act may authorise the Minister to make regulations and give directions for carrying out the purposes of such order in respect of such matters and things as may be specified in such order.

(4) An order made by the Minister under this Act may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of such order.

(5) ( a ) The Minister may by order under this subsection revoke or amend any instrument to which this subsection applies.

( b ) This subsection applies to—
(i) any order or regulations made under Part I of the Air Navigation Act, 1920, as adapted by or under subsequent enactments, which was continued in force by section 15 of the Principal Act and is in force immediately before the operative date,
(ii) any order made by the Government under Part II or under section 63 of the Principal Act,
(iii) any order made by the Government under section 5 of the Principal Act amending any such order or regulation as is referred to in subparagraph (i) or subparagraph (ii) of this paragraph,
(iv) any order made by the Minister under this Act.
S.6. The Minister may make regulations or give directions in respect of which the Minister is authorised by an order made by the Minister under this Act to make regulations or give directions for carrying out the purposes of such order.”
Part II of the Act is entitled “Provisions in Relation to the Chicago Convention”.
The Air Navigation and Transport Act 1950 amended the Act of 1946. In particular S. 5 of this Act defines a “State aircraft” as follows:

“The expression ‘State aircraft’, where it occurs in the Principal Act or the Act of 1946 shall … mean aircraft of any country used in military, customs and police services.
The first of the Orders made pursuant to the Act of 1946 is the Air Navigation (Foreign Military Aircraft) Order 1952 (hereinafter “the 1952 Order”) which contains the following provisions in relation to the overflying and landing of military aircraft in the State:

2. The expression “military aircraft” means aircraft used in military service;
The expression “the Minister” means the Minister for External Affairs.

3. No foreign military aircraft shall fly over or land in the State save on the

express invitation or with the express permission of the Minister.

5. Every foreign military aircraft flying over or landing in the State on the express invitation or with the express permission of the Minister shall comply with such stipulations as the Minister may make in relation to such aircraft.”
The Air Navigation (Carriage of Munitions of War, Weapons, and Dangerous Goods) Order 1973 (hereinafter “the 1973 Order”) made pursuant to Sections 5, 9, 11 and 16 of the Act of 1946 sets out the position governing certain aircraft carrying munitions of war or dangerous goods. The 1973 Order contains the following provisions:

“the Minister” shall be the Minister for Transport and Power;

“5. The Minister may, by direction, exempt any class of aircraft from any of the provisions of Article 6 or 7 of this Order.
6. (1) In this Article “munitions of war” means weapons and ammunition designed for use in warfare and includes parts of or for such weapons and ammunition.

(2) (a) Subject to subparagraph (b) of this paragraph—
(i) it shall be unlawful to carry munitions of war on an aircraft;

(ii)it shall be unlawful for a person to take or cause to be taken on board an aircraft, or to deliver or cause to be delivered, for carriage thereon, goods which he knows or has reason to suspect to be munitions of war.
(b) This Article shall not apply to munitions of war taken or carried on board an aircraft which is registered elsewhere than in the State if, under the laws of the state in which the aircraft is registered the munitions of war may be lawfully taken or carried on board for the purpose of ensuring the safety of the aircraft or the persons on board.”
Finally, the Air Navigation (Carriage of Munitions of War, Weapons, and Dangerous Goods) Order, 1989 (hereafter “the amended 1973 Order”) amended the 1973 Order by substituting for Article 5, the following article:
“5. The Minister may, by direction, exempt a specified aircraft in regard to a particular aircraft operation from all or any of the provisions of Articles 6 or 7 of this Order.”
Blanket Exemption
Reference will be made in the course of the judgment to what is called a “blanket exemption” Under the 1952 Order – as outlined above – all foreign military aircraft require the express invitation or permission of the Minister for Foreign Affairs to overfly or to land in the State. According to the Respondents, permission has been normally granted for such overflying or landing on the basis of confirmation to the second named respondent that the aircraft is unarmed, carries no ammunition and is not engaged in any intelligence operations and are not involved in military exercises. This position is not wholly accepted by the applicant in the present case, in that he contends, as will be clear from his submissions, that in the absence of documentation as to such stipulations (and as will be seen from the arguments, their alleged waiver), those alleged stipulations and their waiver, do not, in reality, exist.

In general, the same procedures and permission are required of aircraft carrying munitions under the 1973 Order. However, there are two exceptions to this practice. Firstly, there is what is known as a “blanket permission” granted to some countries for a specified period, which allows aircraft to overfly and/or land in the State, on condition that advance notification is given to the Department of Foreign Affairs, a practice, according to the respondents, operating in respect of aircraft of many countries. The second exception relates to a practice operating in respect of aircraft of the United States. In 1959 an agreement was entered into between the then Minister for External Relations and the United States Ambassador to Ireland whereby the United States was granted “blanket” permission for overflights of unarmed military aircraft. Under that arrangement, the United States is required to supply regular post hoc statistics of overflights broken down on a month by month basis.

On this aspect of the matter, according to the affidavits of Mr. Cooney sworn on the 19th September 2002, and on the 16th December 2003, the position post – Resolution 1368 was different as concerns blanket exemptions. Following this Resolution, a waiver of the normal stipulations attaching to overflights and/or landing of foreign aircraft, including military aircraft, was made available in the case of all aircraft operating in pursuance of that Resolution, from wherever they emanated.

The foregoing is the legislative scheme, and the practical manner in which the respondents say it was applied, both before the passing of Resolution 1368 and subsequent to that. However, according to the evidence of the respondents, again not fully accepted by the applicant, no actual applications for permission for military aircraft engaged in pursuit of Resolution 1368 to land or overfly Irish territory were received up to the date of swearing of the affidavits, and therefore the waiver of the normal stipulations which was offered by the first named respondent was never called into operation. Instead, overflights and landings continued on the basis of the pre-existing, long-standing procedures.

Brief Background Facts

I have briefly introduced the background giving rise to the passing of Resolution 1368 and the background against which the applicant brings these proceedings. It arises in the wake of the September 11 attacks on the World Trade Centre in New York, and the widespread condemnation of terrorist attacks of all types. Several debates took place under the auspices of the United Nations, concerning the question of heightened concern about such attacks, and pursuant to the procedures operated by that international institution several resolutions were proposed and/or adopted. Among these was resolution 1368 (2001), passed on the 12th September, the day following the attacks in New York, and a further resolution, number 1373 (2001) was passed on the 28th September 2001. At that time, Afghanistan was controlled by a group known as the Taliban, which had announced the creation of the Islamic Emirate of Afghanistan, recognised by a small number of governments, and both were in conflict in that country with the United Front Alliance. This latter group was associated to the government of the Islamic Republic of Afghanistan, which in turn was recognised as the legitimate government of Afghanistan both by Ireland and by the United Nations. Prior to the passing of Resolution 1368, according to the respondents – and not contested – the Security Council had imposed sanctions against the Taliban arising from its refusal to hand over Osama bin Laden, the reputed leader of Al Qaeda, and its refusal to close terrorist training camps operating from territory under its control. Subsequent to resolutions 1368 and 1373, military action was commenced against Al Qaeda and the Taliban Regime in Afghanistan by an international coalition of states, led by the United States of America. The Taliban regime was overthrown, and a new government was established. At the time of swearing of his first affidavit in 2002, Mr. Cooney, on behalf of the second named respondent, indicated that the State was about to sign an agreement with the Transitional Authority of Afghanistan to establish diplomatic relations.

After the passing of resolution 1368, the first respondent indicated it would facilitate overflight, landing and refuelling of aircraft engaged in pursuit of resolution 1368, which decision was announced by statement of the Taoiseach, made after consultation with the second named Respondent and following a meeting of the Special European Council, held on the 21st September 2001. The statement disclosed a willingness to “facilitate the overflight, landing and refuelling go aircraft engaged in pursuit of Resolution 1368,” making no mention of aircraft of any particular country. It would appear that this offer was formally conveyed by the second named Respondent in a meeting with then United States Secretary of State Powell on the 26th September 2001. Subsequently, the decision was repeated by the Taoiseach and the Minister for Foreign Affairs in addresses by them to the Dáil in late September and early October. Consequent upon the foregoing, it would appear that certain aircraft, armed or unarmed, military or civilian – and in the latter case, carrying arms or troops – were or may have been overflying Irish airspace, and/or were landing at Shannon airport, travelling to or from Afghanistan. These overflights and/or landings are made pursuant to some or other of the above Orders or Regulations, or pursuant to the said blanket exemption, with or without stipulations. Substantial reams of documents have been discovered and disclosed and form part of the proceedings, but I do not intend to refer to these, whether documents secured by the applicant pursuant to the provisions of the Freedom of Information Act, or the discovered documents of the second and/or third respondents, save where this is essential to the judgment.

The Applicant’s Submissions:

Outline:

It is the applicant’s contention that such aircraft overflying and/or landing in the State are travelling to or from Afghanistan as part of what he contends is a war being carried on there by members of the international coalition led by the United States, and that the decision of the first named respondent to facilitate such overflights and/or landings constitutes, on the part of the said Respondent, participation in that war within the meaning of Article 28.3.1. The assent of the Dáil to such participation has not been secured, contrary, the applicant argues, to the provisions of Article 28.3.1 of the Constitution, and the decision, and the permissions granted consequent upon the same, are therefore properly impugned by him. Further, the permissions actually granted and the waiver of stipulations normally attaching to them are unconstitutional.

The applicant’s position on the issues arising under Article 28 can be summarised as follows: There was a war in Afghanistan, as that word is understood legally, both in international law and according to the Constitution. Allowing or permitting aircraft whether armed or unarmed military aircraft, or civilian aircraft carrying arms or munitions of war or army personnel, on their way to or from Afghanistan, to overfly Irish airspace or to land and/or refuel in Ireland, constitutes participation in that war. It is unconstitutional for the Government to permit such participation in a war without the assent of Dáil Eireann, which assent has not been secured. The fact that the respondents contend that the permission to overfly and/or land in purported pursuance of United Nations Resolution 1368 is unjustified and does not, in any event, cure the wrongdoing, because that resolution did not authorise the actions taken in Afghanistan. Further, the existence of Resolution 1368, even if it envisaged doing what the coalition of states have been doing in Afghanistan, which is not accepted by the applicant, this cannot render an unconstitutional participation in a war, constitutional.

Apart from the foregoing plea as to unconstitutionality, based on the absence of assent of the Dáil pursuant to Article 28 of the Constitution, and which in some respect, invokes also part of Article 29, there is a separate plea of the applicant, also alleging unconstitutionality, on rather more technical grounds. Again in essence, this part of the applicant’s case is based on the legality of the several Orders referred to above, which he says are ultra vires, because they exceed the powers of the relevant Minister, having regard to the content of the Act of 1946. In the alternative, he argues that, if they are properly made Orders, then S.5 of the Act of 1946 is unconstitutional due to an excessive delegation of power, having regard to the provisions of Article 15 of the Constitution.

I propose in this judgment to deal with what I might be called the primary constitutional submissions first, and then separately with the latter allegations, even though they are somewhat interrelated. Dealing first therefore, with the allegation that the failure of the first named respondent to secure the assent of Dáil Éireann before deciding to allow aircraft to overfly or land and/or refuel at Shannon airport, renders the permission to carry out those activities unconstitutional, it is not disputed, as a matter of fact, that there was no formal resolution of the Dáil passed in respect of, to use a neutral phrase at this point in the judgment, the matters at issue in these proceedings,. While the applicant asserts it is not necessary to determine the issue of the existence of war, he does claim that the court will have to decide what is meant by participation in the events occurring in Afghanistan.

Detailed Submissions:

For the applicant, the first contention presented by Mr. Rogers, S.C. is that the concept of a war involves solely that of armed conflict, and that what the Constitution clearly does is define a war as “an armed conflict”. According to this argument, Article 28.3.3 of the Constitution makes it clear that the definition of a war includes a time when there is taking place an “armed conflict”, in which, while the State is not a participant, the Houses of the Oireachtas shall have resolved that arising out of such armed conflict, a national emergency exists. It is submitted that it is clear from this wording that the concept of war involves solely armed conflict, and that what the Constitution clearly identifies as the principal defining quality of a war is an armed conflict.

He further submits that the court should reflect on whether there was not an entity governing Afghanistan in 2001 other than the Taliban, and argues that there wasn’t. Whereas the respondents claim that because the international community did not recognise the Taliban, it being recognised by a few countries only, then that group did not constitute a government, according to the applicant’s argument, that is not a matter which the court can resolve, as it is simply a description of the position “on the ground” so to speak. What is not in doubt however is that the Taliban governed or controlled Afghanistan for a number of years and nobody else did. Mr Rogers accepts that the court could not be required to determine whether or not the Taliban was a lawful Government or a recognised Government in Afghanistan because there are of course different views about that. Whatever the status of the Taliban, the question which arises for determination is whether what happened in October 2001 when what the applicant calls “the war”, or when “armed attacks” commenced, was a war. The applicant accepts that this is not a case of war being declared by the first named respondent. Rather what is at issue is whether, a war not having been declared, the respondent is nevertheless participating in a war since 2001. The mere absence of a declaration of war however cannot in logic, he argues, prevent the violent overthrow of a government which had been in situ for several years from being, in law and in fact, a war as that term is used in the Constitution. The respondents’ denial that its decision to permit overflights and landings, and the permissions actually granted, do not amount to participation, flies in the face of the facts on the ground both in Afghanistan and within the State.

Secondly, the applicant submits he is entitled to invoke Article 29 and in particular Article 29.2 and 3 of the Constitution not to establish a direct right of action but for the purposes of arguing the status and effect of the underlying principles found there. Mr Rogers submits that the content of that Article is a statement of principle, having regard to a question of a war and whether the State is in fact participating in it. In that regard the applicant relies on principles of international law touching on the duties of neutral powers. These duties can be seen clearly from the Hague Convention 1907, entitled “a Convention Respecting the Rights and Duties of Neutral Powers”.

Flowing from Article 5 of the Hague Convention, he argues it is clear that a neutral State may not permit belligerents, or the moving of troops or convoys, in or through its territory. Article 7 of the Convention creates a type of exemption which permits the export of munitions or arms from the State, but still does not permit belligerents to be in the State,. It is accepted that Ireland is not a party to the Convention. However Mr. Rogers submits that the Convention is no more than the bringing together or codification of pre-existing, generally accepted principles of international law which emerged in the course of the early 19th century and to which the State subscribes, as is clear from Article 29. In that regard Mr Rogers relied also on an abstract from Schwartzenburger on International Law, 1968 edn. p. 417 under “Fundamentals, The basic rules and duties of abstention and impartiality”, and one from Oppenheim on International Law, 1926 edn. p.511 under the heading “The Passage of Troops”. In particular he contends that the Oppenheim statement in 1926 that the passage of belligerent troops must be prohibited in order to main neutrality is a significant statement of international law which should be adopted by this court as a criterion or a test on the question of what constitutes “participation” in Article 28(3)(1). Having regard to these well established principles of international law as to neutrality, it cannot be said that a State which permits, in an authorised and administratively approved way, troop movements through that State by a belligerent to a theatre of war, is not participating in such a war.

It is not necessary to involve a State’s own army to constitute participation within the ambit of Article 28. Facilitation of the movement of a volume of troops and munitions amounts to participation, and such movement of troops and munitions is sufficiently evident in the present case. In the applicant’s submission, this is the first occasion on which this particular level of facilitation of troop movements and munitions through the State has occurred without a Dáil resolution. The key feature here is that the Constitution, requiring assent of the Dáil in the event of participation in a war, was infringed by virtue of the fact that no such assent was granted.

Thirdly, the applicant prays in aid as a means of interpreting Article 28.3.1 of the Constitution, an Act entitled Spanish Civil War (Non-Intervention) Act 1937, which he contends is apt, having been passed into law at a time contemporaneous with the Constitution. He submits that it defines a war as being that occurring in Spain at the time, and a belligerent as one of the governments or organisations of such nature between whom the war is being waged, and specifically prohibits any person from organising aiding any other persons to depart the State for the purposes of serving in the military forces in Spain at the time. Mr. Rogers argues that this is a particularly apt guide to the court, in terms of content and timing, as to the correct meaning to be ascribed to war in Article 28.3.1 o of the Constitution.

Fourthly, the fact that the respondents assert that what is being carried on is pursuant to a Security Council Resolution is not at all relevant. If what is being done is an infringement of Article 28.3.1o, then the fact that such may be done in purported compliance with a Security Council Resolution does not resolve the constitutionality of the acts in question. Either they are within the terms of the Article or outside it. Mr Rogers points out that Resolution 1368 in fact says nothing at all about a war. Further, the fact as the respondents contend that assistance to the United States and its military aircraft has been a long standing practice is also of no consequence, it being entirely irrelevant to the question of determining whether or not Article 28.3.1 has been infringed. Even if there were such an arrangement, the applicant contends that such arrangements did not include, as in the present case, the large scale movement of troops through the State en route to war, and that what is happening now is completely different in terms of its scale in that it involves actual assistance to a military campaign, not being simply a question, for example, of facilitating the overflight of military personnel from the United States to Germany or something akin to that.

Next, the applicant submits that the constitutional provision is intended as a check on the Government, and although not mentioned in the constitutional provision itself, Article 28.3.1 is clearly such a check. As to the likely contention of the respondent that the issue raises a question of justiciability, Mr Rogers submits that in the case of Horgan v An Taoiseach and Others 2 I.R. 468 Kearns J. took a view in relation to the role of the courts vis-à-vis Article 28 of the Constitution and in that case declined to intervene for the reason that it would be to second guess the Dáil if he were to do so. He also submits it is also possible to distinguish Horgan since, in that case, there was a resolution of the Dáil, and a resolution in particular and certain terms. Effectively, what the learned High Court judge found in that case was that it would be impermissible for the court to second guess the terms of an actual resolution of Dáil Eireann, one having been already passed. The judgment can be understood as being as simple as that. In the present case there is no resolution at all in circumstances where there is clearly an armed conflict, that is to say a war, clearly stated by the respondents to be so, citing in support thereof part of the first affidavit of Mr. Cooney. While the applicant accepts that the Courts should be slow to overturn a decision of the executive, this is a situation where the Government has intentionally failed to submit the question of participation in a war to the Dáil for approval.

The applicant also rejects the averment in the affidavit of Mr. David Cooney that it has historically been the position in Ireland that the Dáil has not determined that Ireland is participating in a war when allowing aircraft to pass through its airspace. It is acknowledged, both by the applicant and by the second named respondent, that the Gulf War in 1991 and the Iraq conflict in 2003 were both the subject of specific motions passed by the Dáil. It is contended on behalf of the applicant that the present situation can be distinguished from previous conflicts, such as the Gulf War 1990 -1991, in any event, because in the present case what is being facilitated are armed combat troops en route to the theatre of war. Permission in such a set of circumstances is contrary to the fundamental notion of neutrality as provided for in the Hague Convention of 1907.

The Permissions are Ultra Vires the Powers of the Minister

The applicant’s second line of argument is also fairly discrete. It concerns the question as to whether the permissions of the relevant Ministers pursuant to the decision taken by the first named respondent, were ultra vires the relevant statutory instruments invoked to support the permissions. The regulatory scheme provided for under the several regulations is rather complicated, perhaps unnecessarily so. The permissions cover variously military aircraft, as well as civilian aircraft including civilian aircraft used to carry munitions or arms or cargo of a military nature. There are a number of components to this issue, and I will set out the arguments in order.

In relation to the Orders made under the Act of 1946, and in particular the 1952 Order, Mr Rogers submits that the first issue to be decided is whether there has been compliance with that Order. According to him, Article 3 of the Order means that there is a requirement for permission to be given on a case by case basis. That is because, when read together with Article 4, the permissions are to be granted subject to stipulations, if the Minister considers it appropriate. Mr Rogers relies on the use of the word “express” – repeated at least four times in the two provisions in question – and argues that the general construction of these two provisions and the use of the word “express” permission makes it clear that it is a case by case decision which is required on the part of the Minister.

Secondly, as to whether or not there can be a permission without stipulations, Mr Rogers accepts that the Minister can dispense with stipulations, but that the real question is whether he can dispense with giving permission altogether. According to the admissions made in correspondence between the Department of Foreign Affairs and the applicant, he contends it is stated by the former that “the normal conditions were waived in respect of aircraft operating in pursuit of the implementation of Security Council Resolution 1368”. But the applicant submits that there is no evidence that these stipulations were waived. If there is not a physical permission or consent that can be viewed or considered, the conditions attaching to such waiver referred to by Mr Cooney in his affidavit cannot be relied on because they are not recorded anywhere, and it is not possible to know what conditions actually apply.

Having regard to the legal regime required pursuant to the 1952 Order, there must be a record so that it can be said at any point in time whether a permission exists and if so whether stipulations attach to that permission or not. The 1952 Order requires express permission for each and every aircraft and it must have the meaning of being specific and it must have the meaning of being recorded. On the other hand, the giving of an indefinite permission, not available to be seen, inspected or examined and therefore lacking in any coherence of the type expected of a permission under the Article in question, is not permissible at law. In the circumstances it is the applicant’s argument that there is no permission in existence which complies with Article 3 of the 1952 Order.

The applicant contends that under the second regime, found in the 1973 Order, as amended, civilian aircraft carrying munitions must secure a permission from the Minister for Transport, whereas all military aircraft have, according to the respondents, a full waiver of the requirements necessary under the 1952 Order. Such an approach is not rational. Both instruments purport to be sourced within the Act of 1946 and the regulation of both military aircraft and civilian aircraft carrying munitions. It is difficult, Mr Rogers submits, to see how such a regime could allow of a situation where there is a complete waiver in respect of all stipulations considered necessary in the case of military aircraft, and a very strict and comprehensive regime in respect of civilian aircraft. If the regime under the 1952 Order being contended for by the respondents is in existence, the absence or waiver of the stipulations should not be permitted, because the court is then left with the quandary of not knowing and not being able to ascertain what is in fact regulated.

Secondly, dealing specifically with the position arising under the 1973 Order Mr Rogers says that the first thing to note in relation to this is the source of the power which is stated as being section 5 of the Act of 1946. That Order defines “aircraft”, and paragraph 4 of the Order deals with the sphere of application of the Order, in providing:
“Save where the contrary intention appears, apply to all aircraft when in or over the State and to aircraft registered in the State wherever it may be”.

According to Mr Rogers, on its face, this Order applies to all aircraft whether civilian or military. This is particularly clear from section 3(2) of the Act of 1946. According to this argument, having regard to section 3(1) of the Act, when the Minister made the 1973 Order he could only have been doing so if he was purporting to exercise some power under section 3(2). Although not recited as a source of power in the recital at the commencement of the Order it would appear that the Minister must have had regard to section 3(2) in making this statutory instrument applicable to all aircraft, including military aircraft. This is so notwithstanding that that the respondents contend that this order deals exclusively with civilian aircraft. He argues it is quite plain that there has been non-compliance with the 1973 Order by the failure of the coalition to secure permissions for military aircraft when appropriate, from the Minister for Transport, under that Order

Thirdly the applicant contends that there is an issue as to the actual validity of the 1952 Order, leaving aside what is meant precisely by the Order and what consequences flow from that meaning. He submits that the 1952 Order enacted by the Minister for Transport offends the principle of delegatus non potest delegare. The general principle is invoked by the applicant, that is to say, that a power must be exercised only by the delegated authority in which it has been vested by the legislature. It cannot be delegated to any other person or body, he argues, citing O’Neill v Beaumont Hospital [1990] I.L.R.M. 419. Applying the principles established in that case, Mr Rogers submits that the Order of 1952 was made by the Minister for Industry and Commerce. He provided, by Article 3, that foreign military aircraft could not fly within the State without the express permission of the Minister, the Minister being defined in that Order as “the Minister for External Affairs”. The opening passage in the Order does not refer to any specific statutory provision in the 1946 Act, as a source of the power, but simply recites the name of the Act. The question which arises therefore is whether this is a total delegation of the power of the Minister for Transport in respect of the regulation of military aircraft by him, to the Minister for Foreign Affairs, and as to whether, if this is so, that is intra vires the powers of the Minister for Transport. The applicant contends that it is not intra vires, because the 1946 Act itself is explicit in giving the function of regulating the matter to the Minister for Transport alone. The Orders in the Act of 1946 as envisaged are those included in Section 3, 5, 6, 9 and 11. Section 5(1) provides as follows:
“An order made by the Minister, under this Act may be made applicable to any aircraft, in or over the State, or to Irish aircraft wherever they may be”.

According to the applicant’s argument, that is the power which is given under the Act in respect of the regulation of aircraft, and that power is given only to the Minister for Transport and no one else. This is reinforced by the provisions of Section 5(3) which states:
“An order made by the Minister under this Act, may authorise the Minister to make regulations and give directions for carrying out the purpose of such Order in respect of such matters and things as may be specified in such Orders”.

This makes it abundantly clear that the power is granted exclusively to the Minister for Transport who may designate in a Statutory Instrument what things are to be done for the purposes of the Order he is making. The applicant argues that, even considering every other provision in the Act, one finds no power envisaged as being capable of being delegated by the Minister to another Minister. Therefore in the applicants’ contention, the 1952 Order is simply not authorised.

The next argument made on behalf of the applicant’s concerns Section 5 of the Act of 1946, if, contrary to the above contention, it is held by the Court that power in the Act may be delegated to the Minister for Foreign Affairs. On the applicant’s argument, the effect of Article 15.2.1 of the Constitution is that laws are to be made exclusively by the Oireachtas. Looking at s.5 of the Act of 1946 all the section does is invest in the Minister a bare power. There is no guidance in the section by reference to criteria, to indicate that in exercising the power he is to have regard to any particular policy or principle. Rather the policy or principle is found in the Regulation or the Orders. The provisions of the Act relating to the Chicago Convention are in Part II of the Act. They apply only to civilian aircraft. Section 3(1) of the Act states says that the Convention does not apply to State aircraft. That being so, there is a complete absence of any policy or guidance found in the section, which may be contrasted with all of the elements in that regard found in, for example, section 11. The applicant invokes the case of Laurentiu v Minister for Justice, Equality and Law Reform [1995] 4 IR 26 in that regard, and in particular the comments of Geoghegan J. in Cityview Press v An Chomhairle Oiliuna [1980] IR 381 approved of in the judgment and the further judgment in the Supreme Court on appeal.

The Respondents’ Submissions

Brief Outline

On behalf of the respondents, Mr Connolly S.C, argued a general point first of all. He pointed to a number of Supreme Court pronouncements in regard to the consideration of constitutional issues which are summarised under the phrase “judicial restraint” which tend to indicate that if a court can dispose of legal issues as opposed to embarking on the resolution of constitutional issues, or without having to strike down particular legislative provisions, this is the approach which should be adopted, invoking in that regard Clarke v Roche [1986] IR 619, McDaid v Sheehy [1991] 1 IR 1, Brady v Donegal County Council and Others [1989] ILRM 282. Nevertheless he accepted that there are certain circumstances in which the Supreme Court has dealt with a constitutional issue before first dealing with other legal issues. In the present case he contended that it is preferable that all of the issues be resolved in the same proceedings and his approach therefore is to suggest that he commence with the legal issues and then considered the constitutional ones. Mr. Connolly then dealt with the statutory regime first and Mr. Hogan, S.C., followed on with the Constitutional arguments. However, following the same scheme of argument presented by Mr. Rogers for the applicant, I set out first the arguments of the respondents on the constitutional issues, and then those on the legislative regime.
Firstly Mr. Hogan said that, on the question of classifying the activities occurring in Afghanistan as amounting to war for the purposes of Article 28, he accepts that for rhetorical or political or polemical purposes the events may constitute a type of war but this does not constitute a war within the meaning of Article 28 and secondly he says that irrespective of the foregoing there is no question of any participation by the State in any supposed war for the purposes of Article 28.3.1.

Secondly, the respondents’ draw on the decision of Kearns J. in Horgan v. Ireland [2003] 2 IR 468 in support of their contention that the issue is one that cannot and should not be determined by this Court. In that case, Kearns J. endorsed and quoted extensively from the findings of the Queen’s Bench Division in C.N.D. v. Prime Minister of the United Kingdom (Unreported, Queens Bench Division, 17th December, 2002) to that end. The respondents argue that what emerges from the decision in Horgan and indeed from other cases, is not that Article 28.3.1 presents a non justiciable controversy, but rather that this is not a matter on which the Court starts with a blank sheet. What constitutes participation in any war is primarily and principally, in the first instance, a matter for the Dáil. The Courts’ role in such a matter is highly truncated, and the Court could and should only become involved, if at all, if there is an egregious breach of Article 28.3.1 or the Dáil reached what amounted to a perverse conclusion as to whether the activities amounted to participation.

Thirdly the respondents contend that arising out the submissions made on behalf of the applicant concerning the interrelationship between Article 28.3.1 and 28.3.3, the latter constitutes a stand alone clause which cannot be invoked as an aid to the interpretation of Article 28.3.1. This is clear from the special definitions of what constitutes “a time of war” in Article 28.3.3.

Finally the respondents submit that the applicant, despite his contention to the contrary, seeks in fact to rely on the provisions of Article 29. They submit this article does not create any enforceable legal right at the suit of a private citizen, and in particular, in light of the decision of Kearns J. in Horgan, Articles 29.1 – 29.3 does not create any enforceable legal rights which the citizen can invoke, when these are directed to the relationships existing between Ireland and another state.

Detailed Submissions:
Dealing with the first issue in this series, Mr. Hogan draws the Court’s attention to the fact that the meaning of the word “war” in Article 28.3.1 has not previously been considered by the Court. Unlike the position in Afghanistan, the events which took place in Iraq in relation to the 2003 invasion of that country constituted a war in the classic sense of the word because the regime there was recognised as constituting the lawful government of Iraq, recognised by the international community as such. The respondents contention, as deposed to by Mr. Cooney and not, according to Mr. Hogan, seriously contraverted by the applicant, is that the Taliban regime in Afghanistan was not recognised by the international community as the government of Afghanistan. The Taliban, if it had a status, had some type of de facto control over parts of Afghanistan and to that extent were recognised only by three other states On the other hand the Taliban was not recognised by this State at all. So far as this State is concerned, and having regard to terms of resolution 1368, what occurred was not only in accordance with the wishes of the Security Council but also with the consent of the lawful government of Afghanistan against a de facto regime which operated in parts of Afghanistan. However that situation might be classified, when analysed in the formal legal sense which Article 28.3.1 requires, there is not a war because the action being taken, with the consent of that lawful government, was being taken against persons who had usurped or purported to usurp the functions of the lawful government of Afghanistan
While Mr. Hogan accepts that the critical words in Article 28 are “war shall not be declared”, which is the conventional 1930s position that war had to be declared solemnly and formally as against another sovereign entity, there could be no question of a declaration of war for the purposes of Article 28.3.1 against an entity which is not a sovereign government, and that the formal interpretation of the phrase “declaration of war” or “participation in war” must be distinguished from colloquial phrases such as “the war on terror” or “the war on drugs” or phrases of that type. If therefore an illegal group or some other faction purported to stage a coup d’etat and the State did not recognise that illegal faction and with the consent of the lawful government the State became involved in such events the State would not be declaring war or participating in a war within the meaning of Article 28.3. Action taken short of that formal declaration of war, or in a situation where there is no declaration of war between sovereign states, does not constitute a war and matters arising, such as permissions to overfly or land, do not constitute participation within Article 28.3.1.

On the second issue, the Court is entitled to consider the background to resolution 1368 in assessing whether or not there is a war and also the terms of that resolution. The background of the resolution according to Mr. Hogan envisaged that there is not a war in the conventional orthodox sense, but rather that action is to be taken in pursuance of the resolution against a faction existing in Afghanistan that has been involved in giving aid and comfort to Al Qaeda. That is the background to the resolution. The terms of the resolution are also a very important form of language for the purposes of the Security Council resolution because “all necessary steps” embrace military action. The terms of resolution 1368 can be contrasted with the earlier resolution 1267 in so far as the United Nations was concerned that the Taliban was simply a self-styled entity or self-styled government which happened to have some de facto controls, but which was not the lawful government of Afghanistan. Therefore taking action against the Taliban further to a Security Council resolution, is not simply taking action against Afghanistan as such, nor was there any declaration of war by the United States against Afghanistan as such, but rather it was taking military action against a faction which had purported to usurp certain governmental functions in Afghanistan without being the lawful government of that country. Mr. Hogan submits that it was against that background that the resolutions could be looked at as an aid to understanding whether there was war in the constitutional sense of the word. It is, he said, fully accepted by the respondents that what constitutes a war for the purposes of Article 28.3.1 is a matter entirely for domestic constitutional law, and also accepted that simply because it may not be described as a war by third parties, the resolution, while not in any sense dispositive on the issue, may be employed by the Court as an aid to understanding whether or not there is a war in the sense understood by Article 28.3.1.

Turning then to what constitutes participation, Mr. Hogan says that this is a matter which was fully canvassed by the Courts in the Horgan decision. In that regard Mr. Hogan draws particular attention to those portions of the Horgan judgment in which the Court adopted an attitude of restraint to the resolution of an admittedly justiciable issue arising under Article 28.3.1. He argues that while there was no formal Dáil resolution, the Dáil was fully apprised of all of the circumstances of the overflight and landing, and that is a factor to which the Court should have appropriate regard, as in the Horgan decision.

The respondents also identify the two circumstances in which the Courts can intervene so as to restrain the exercise of its powers. The first of these is the situation allowed for in Crotty v. an Taoiseach [1987] 1 I.R. 713, where the citizen can show that there has been actual or threatened interference with his or her rights guaranteed by the Constitution, which they say is not the case here. And secondly, the Court will also, where appropriate, declare an action of the executive inconsistent with the Constitution as explained by Fitzgerald J. in Boland v. An Taoiseach [1974] I.R. 338 at 362:

“…the Courts have no power, either express or implied, to supervise or interfere with the exercise by the Government of its executive functions, unless the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred upon it by the Constitution.”
Mr. Hogan accepts that the Court should add to that, issues highlighted by a number of parallel cases in other jurisdictions, concerning the question of the judicial capacity, suitability and ability to decide such matters. According to jurisprudence in other jurisdictions when considering a question of the nature being considered in the present case, it is recognised that a full assessment of the question of participation can only be made by military experts relying on military intelligence and other matters which are not readily suited for resolution in the legal process. He points out that the resolution of the Dáil in the Horgan matter was not a resolution purporting to be passed pursuant to Article 28.3.1. On the other hand the State is not required, according to Mr. Hogan to take an action which is a positive negative, that is to say it is not required to pass a resolution deciding not to go to war or not to participate under Article 28.3.1. Therefore if there had been no resolution in the Horgan case, that would have made no difference for the purposes of Article 28.3.1. It recalled the long standing arrangements for overflight and landing of U.S. military and civilian aircraft and supported the decision of the government to maintain those arrangements, but specifically did not purport to be an assent of Dáil Eireann under Article 28.3.1 to any participation in the declared war in Iraq. In the Horgan case, the text of the resolution makes it clear in graphic terms that the Dáil was aware exactly of what was going on, specifically endorsed the decision of the government and the Dáil took the view that what was occurring was not participation. These were factors to which Kearns J. had regard. While the applicant argued that in the present case there was no formal resolution of the Dáil, Mr. Hogan submits that really that is neither here nor there. What is important is that the Dáil was made fully aware in the present case, both by the Taoiseach and of the Minister for Foreign Affairs on a series of dates in late September and early October 2001 what was proposed to be done. No action against those proposals was taken by the Dáil and in the respondents submission this was a matter which was, at least in the first instance, entirely within the remit of the Dáil to decide. The hostilities themselves had commenced in Afghanistan in or around October 7th 2001 and the Dáil was fully aware of the provision of the facilities to all aircraft engaged in support of resolution 1368. the conclusion to be drawn from all of this is that the Dáil itself did not consider this to be participation in war. There was therefore in this case, just as in the case of Horgan nothing which had occurred such as would warrant even examining the particular decision and the called for resolution yet alone make a determination as to their correctness or otherwise.
He also invoked the decision in Horgan, insofar as it adopted the rationale underlying the decision in CND v The Prime Minister of the United Kingdom which expressed similar terms to that expressed in the American case of Ange v Bush 752 F. Supp. 509. In particular Mr. Hogan invokes CND case which had sought a declaration that the Iraq conflict would not be authorised under the terms of international law, and which had effectively invited the English courts to construe the existing Iraq resolutions (of the Security Council) to see whether they did or did not authorise the use of force against Iraq. In that case the English courts said effectively that this is a non justiciable matter because it would be an arrogation of jurisdiction on their part to make a pronouncement about a matter which was a matter more for political debate than of strict legal rights.

However because of the nature of a declaration of war or participation in a war, part of the internal checks and balances posited by the Constitution requires that the government itself cannot take this decision unilaterally but must have the prior assent of the Dáil. The Constitution recognises that this is something which is primarily a dispute to be worked out, if dispute there be, between the legislative branch on the one hand and the executive branch on the other. The Constitution recognises at least implicitly that what constitutes participation in war is a matter in which it is as much a question of political as opposed to legal judgment and therefore the decision is committed to the good sense and democratic responsibility of the lower house of the Oireachtas, directly elected by the people. That is why a high level of judicial restraint is always called for in relation to the justiciability of Article 28, a factor reflected in the language used by Kearns J. in the Horgan decision.

Nor is this a case of some manifest or egregious breach of Article 28.3.1 where the Dáil has not taken its constitutional responsibilities seriously such as might warrant the Court intervening. It is a matter which on the contrary is quintessentially a matter for the government and the elected government representatives in the Dáil to determine and resolve. There is, according to Mr. Hogan, a large margin of appreciation in favour of the Dáil, as is clear from Horgan.

The decision in Ange v Bush, which had been approved of by Kearns J. in the Horgan case, in turn relied on Baker v Carr, 369 US182, 217 a 1962 decision of the United States Supreme Court in which the issue of judicial restraint was considered. In the present case Mr. Hogan says that the correct analogy with that case is as to whether the issue of the existence of a war or the issue of participation in such a war is primarily a matter for political resolution in the political branch of the State. Since it is clear that the question of what is considered to be participation in a war is a matter on which intelligent and reasonable people might well differ from time to time, this is precisely the type of matter which presupposes the interaction of a political judgment made by the Dáil and the Executive. By a parity of reasoning and to adapt this jurisprudence to an Irish constitutional context the Dáil could quite properly vote no confidence in the government for example if it saw fit or it could for example refuse to approve the estimates, or adopt any range of possible actions which are open to it including, a proposal that opening of airspace or the permission to land made available to aircraft travelling to or from Afghanistan required the passage of a resolution under Article 28.3.1. Therefore the Dáil possesses ample powers under the Constitution to prevent the government overreaching, should the Dáil consider it to have done so. It should not be considered that the legislative branch is helpless without the assistance of the judicial branch.

If the Court determined in a particular case that, contrary to what the Dáil had decided, a formal declaration of war should have been made pursuant to Article 28.3.1. That the State was at war, the political and diplomatic consequences of such a determination by the Court would be virtually unthinkable and unmanageable and would have enormous implications for the manner in which the Executive conducts its foreign relations with other states, invoking the decision of Edelstein J. in the case of Greenham Women Against Cruise Missiles v Reagan, 591 F.Supp 1332, in which the Court recognised that a judicial determination of this type would have consequences both for the diplomatic and political realm of the State and the ability of the State to manoeuvre. Mr. Hogan says that the same approaches have been adopted and considered by the Canadian Supreme Court and in judgments of the German Constitutional Court. All of the foregoing, he submits, underscores the principles which are found in the Horgan case, namely, that this is a matter which calls for judicial restraint of a very high order. Therefore for the applicant to succeed, he needs to show that there has been some quite egregious breach of Article 28, and nothing of the kind is disclosed in the present case.

As to the argument under which Mr. Rogers seeks to invoke the provisions of Article 28.3.3 in aid of the construction of 28.3.1, Mr. Hogan says that Article 28.3.3 deals with an entirely different situation which states simply and clearly that nothing in the Constitution can be invoked to invalidate a law enacted by the Oireachtas which is expressed to be for the purposes of securing public safety or for the preservation of the State in time of war or armed rebellion, or to nullify an act done or purporting to be done during such times. Various resolutions made pursuant to Article 28.3.3 were in fact in force in one shape or another between 1939 and 1995, commencing shortly after the German invasion of Poland in September 1939. These are quite different matters to a declaration or war or participation in war within Article 28.3.1. The definition of what constitutes “time of war or armed rebellion” for the purposes of 28.3.3 is an artificial one, and acknowledged in the text to be so, because it is only applicable when it is resolved by the Houses of the Oireachtas that these events give rise to a national emergency, and that phrase even includes the period after the termination of any war or of any armed rebellion or armed conflict which may elapse until such time as the Houses of the Oireachtas resolve that the national emergency ceases to exist. In this Article what is considered is a time of war as opposed to war itself. The special extended definition of “time of war” is for the purposes of 28.3.3 only.

Next, as to the contention that aid can be gleaned from the provisions of the Spanish Civil War (Non-Intervention) Act, 1937, Mr. Hogan rejects this, submitting that the terms of the Act itself make it clear that it was passed so as to execute the obligations on the State imposed by an international organisation, probably the League of Nations, during the course of Saorstat Eireann, and under the Constitution then in force, and cannot therefore be considered to be an appropriate mechanism for the correct interpretation of the provisions of Article 28.3.1. In the Act it defines specifically, and only for the purposes of the Act, the particular civil war being then waged in Spain. In light of these matters, it could not be seen to be in any way determinative of what is meant by a war under Article 37 of the Constitution.

As to the applicant’s entitlement to invoke Article 29, notwithstanding that Mr. Rogers does so in a narrow and particular context, the respondents argue that the government is not obliged as a matter of law under Article 29 to form any particular view in relation to a war. The only reviewable aspect of a war lies in the issue of compliance with the requirements of Article 28. The furthest that the applicant can go, arising out of the judgment in Horgan, is the finding by the Court in that case that the court was prepared to hold there was an identifiable rule of customary law in relation to the status of neutrality, under which a neutral state may not permit the movement of large numbers of troops or munitions of one belligerent state through its territory on route to a theatre of war with another. This statement of Kearns J. in the Horgan case is not accepted by the respondents, because it amounts to a judicial determination, almost in vacuo, as to what constitutes customary international law. Even if it was correct, this does not assist the applicant in the present case because, for the reasons found otherwise by Kearns J., the applicants cannot invoke Article 29 in this context, and that is so even if one accepted that the Hague Convention imposes such obligations. The parties cannot avail of the provisions of that Convention.

Turning now to the statutory scheme which has been attacked by the applicant, at the outset Mr. Connolly first invoked the decision of the Supreme Court in East Donegal Co-operative Livestock Mart Limited v Attorney General [1970] IR 317, in which it was stated that the court is entitled in interpreting provisions of an Act who refer to the long title of the Act in question and in that regard he notes that the long title to the Act of 1946 states as follows:
“An Act to enable effect to be given to the Convention on International Civil Aviation opened for signature at Chicago on 7th December 1944”.

The predominant scheme of the Act was intended to bring into operation, as part of our domestic law, the contents of the Chicago Convention. The content of that Convention assists the court in outlining the principles and policies which underlie the legislation itself and any statutory instrument made pursuant to this. Section 2 of the Act identifies the Convention and Section 8 provides that it becomes part of domestic law. Insofar as the Chicago Convention itself is concerned the principles and policies of the 1946 Act are to be found in it. Article 3 states that the Convention is applicable only to civil aircraft and shall not be applicable to State aircraft, and that aircraft used in military, customs and police services shall be deemed to be State aircraft. On that basis, military aircraft are a subset of the general classification of State aircraft. Article 3(c) provides:
“No State aircraft of a contracting State shall fly over the territory of another State or land thereon without authorisation by special agreement or otherwise and in accordance with the terms thereof”.

It is here Mr. Connolly says that the court can look to discern the principles and policies behind the sections of the 1946 Act which confer authority on the relevant Ministers to put in place the Statutory Instruments complained of. By way of example, Mr Connolly points to Article 6 of the Convention under the heading “schedule air services” which provides that no scheduled international air service may be operated over or in the territory of contracting State except with the special permission or other authorisation of that State, and in accordance with the terms of such permission or authorisation. This provision echoes earlier articles of the Convention and makes it clear there is nothing offensive in having blanket permissions or blanket waivers in place. Indeed, it would not be possible to operate otherwise.

In practice, scheduled flights from all of the well known airlines operate under such a scheme. Individual permissions are not given for a particular flight of a particular airline at a particular time to land in the State. There is an arrangement by which all the flights of nominated companies over a particular period, say over a particular year, are permitted to land at times that may well be agreed from time to time with the local airport authority. The same situation arises in relation to cargo restrictions. The Convention provides that no munitions of war or implements of war may be carried in or above the territory of a State in an aircraft engaged in international navigation except by permission of such State, each State determining by regulation what constitutes munitions of war or implements of war for the purposes of the Convention, giving due consideration for the purposes of uniformity, to such recommendations as in the International Civil Aviation organisation may from time to time provide. The provisions of the 1950 Act amending the 1946 Act makes more clear what is intended to be covered is the aircraft of any country used in military, customs, or police services and the provisions of the 1950 Act echo the provisions of Article 3 of the Chicago Convention.

While section 3(1) of the Act of 1946 provides that the Act shall not apply to any State aircraft save, under Section (3)(2) the Minister may by Order direct that the provisions of the Act shall equally apply to State aircraft and whenever such an Order is made and is in force such provisions as are specified in such Order shall have force of law in the State. It is therefore only Section 3(2) that can apply to military aircraft. No other section of the Act of 1946 can apply to such aircraft. The Order of 1952 is made by the Minister for Industry and Commerce in exercise of the powers conferred on him by the Act of 1946. As to the applicant’s complaint that the invocation of the statutory authority fails to identify a specific statutory provision being invoked, Mr Connolly says that this can be clearly and readily deduced: the Act of 1946 has only one section which applies to military aircraft. By contrast the 1973 Order specifically invokes as a statutory authority Sections 5, 9, 11 and 16 of the 1946 Act. There is a specific exclusion of the intended application of the 1973 Order to State aircraft, or within that, military aircraft.

The 1952 Order is entitled “The Air Navigation (Foreign Military Aircraft) Order” making it abundantly clear that it is intended to refer only to military aircraft. It can clearly be deduced as having a power conferred under the one and only section of the 1946 Act which deals with military aircraft, and according to Mr Connolly that is supported because there is a definition, pursuant to the Chicago Convention which states:
“Military aircraft means aircraft used in military service and aircraft used in military service includes naval, military and Air Force Aircraft, and every aircraft commanded by a person in naval military or air force service detailed for the purpose shall be deemed to be an aircraft used in military service”.

Finally Mr Connolly draws the court’s attention to a 1989 Order under which Article 5 of the earlier 1973 Order is amended (by Article 4 of the latter) which reads:

“The Minister may, by direction, exempt a specified aircraft in regard to a particular aircraft operation from all or any of the provisions of Articles 6 or 7 of this Order”.

That pertains only to civil aircraft because again if one looks at the title, since Section 3 is not included Mr Connolly argues it is thereby specifically excluded. It is therefore clear he suggests that the 1952 Statutory Instrument deals exclusively with military aircraft and all civil aircraft are covered by the 1973 Statutory Instrument. The submissions of Mr Rogers on behalf of the applicant in relation to what is contained in the 1973 Order concerning the carriage of munitions and so on are all provided for in the prohibition set out in Article 6 of the 1973 Statutory Instrument pertaining exclusively to civil aircraft.

Reverting to the provisions of the Act of 1946, Section 5 permits for the Minister to make general provisions, Section 9 permitting him to make provisions specifically to give effect to the Chicago Convention. Section 11 states:
“Without prejudice to the generality of the power conferred by Sections 9 and 10 of this Act, the Minister may by Order made under either of the said sections make provision…”

These provisions relate to a variety of matters, licensing and conferring of authority etc. and at 11(f), apart from the Chicago Convention, the Minister has powers to make regulations:
“As to the conditions under which aircraft may pass or passengers or goods may be conveyed by aircraft, into or from the State or from one part of the State to another”.

Just as there is a general power, Mr Connolly argues the Minister also has powers of various kinds in relation to the operation of the Act, the most draconian of which appears in Section 12(b) which provides that where an aircraft fails to obey a signal, a State aircraft can fire on it and use any other means at its disposal to compel compliance.

Considering the 1952 Order and the power vested in the Minister under Section 3(2), it is necessary to have regard to the position of the Minister for Foreign Affairs. The person exercising the power under the Statutory Instrument is the Minister for Transport. He is providing that the appropriate Minister dealing with external affairs in the State should be satisfied as to certain matters. Appropriate deference is given to him in that capacity and no more. Mr Connolly argues that the correct interpretation of the 1952 Order, it having been made by the appropriate Minister, is to accept that the requirements which are set down and which are to satisfy the Minister for External Affairs, are not a delegation of any power to the Minister for External Affairs. On the contrary they are the administrative mechanism by which specific requirements are to be met, in the same way as occurs when a person taxes a motor vehicle pursuant to a specific statutory requirement of the Minister for Finance, and the administrative body a local authority, who will have certain requirements which have to be satisfied, for example, that there is exists a valid driving licence or a current motor insurance policy. Mr Connolly argues that there are similar examples in the legislation under consideration here concerning, for example, the requirements in respect of air accidents. The same could be said for the necessity to meet the licensing or landing requirements of a body such as Aer Rianta. These types of requirements do not fall foul of the Constitution as being impermissible delegated legislation.

Mr Connolly points out that even supposing the applicant’s argument were correct, that in some way the 1952 Order is unlawful because it constitutes a form of impermissible delegated legislation, it is not the Act of 1946 itself or the delegated legislation which is unconstitutional. The statutory instrument would simply be ultra vires the parent statute. If correct in his argument, it would leave no restriction in place in legislative terms for the control of military aircraft overflying, landing in or leaving the country. While this clearly is not what is intended to result from Mr Dubsky’s application, it is something which the court ought to bear in mind when looking at the case in the round, and in exercising its discretion in the matter. The applicant seeks to get around this by saying that the 1973 Order covers all aircraft, including military aircraft covered by the 1952 Order. Mr Connolly argues that it could not have been intended in 1973 that there would be two overlapping or competing statutory instruments, which is the inevitable consequence of the submission made. It would be correct, in fact, to interpret the 1973 Order as specifically excluding from its ambit anything purporting to be an exercise of an authority found under Section 3 of the Act.

Turning now to the question of waivers which the applicant also attacks, Mr Connolly addresses the several affidavits sworn by Mr Cooney on behalf of the respondents, citing paragraph 17 of Mr Cooney’s first affidavit in which he sets out the decision of the first named respondent and the repetition of the decision in the Dáil by the Taoiseach and by the Minister for Foreign Affairs, which has been set out in detail at the commencement of this judgment. He argues that this detailed description of the response of the first named respondent amounted to a decision, and has to be considered to be a decision in order for it to be amenable to an Order of certiorari in this court. At the time when the decision was taken, it was open to the elected members of the Dáil to challenge that, if needs be, by a motion of no confidence or by any other available means, and this was not done. There was consultation with the Dáil and implicit approval of the Dáil, even if not a formal resolution, as occurred in relation to the earlier Gulf Wars.
Conclusions

It is important to bear in mind the precise scope of the applicant’s proceedings in this matter. They are judicial review proceedings, with all the limitations attaching to such proceedings. These are not plenary proceedings, in which declarations are sought that there is or was a war in Afghanistan, nor that the first named respondent has been participating in such a war. Here what is sought by the applicant is firstly, an order of certiorari ordering up for quashing the decision of the first named respondent permitting the overflying or landing of military or civil aircraft within the State, without the assent of the Dáil. The proceedings seek, in reality, to ensure that the correct Constitutional processes are met by the first named respondent, in compliance with Article 28.3.1. In such circumstances, the certiorari relief is sought on the fact or the assumption that there is a war, and participation in such war. It is therefore for the applicant to establish sufficient facts and law to persuade the court that it should accept or presume the existence of such a war, and also to establish that the decision of the first named respondent, and the implementation of that decision by the permissions and facilities granted, constitute participation, within the meaning of Article 28.3.1 of the Constitution, in that war.

There is another preliminary issue upon which it is proper to make a finding at this stage. This is as to the scope of Article 28.3.1 Although the arguments on this aspect of the case were rather complex, in essence it is the respondents case that in considering the scope of that Article, no assent of any description is required unless there is a declaration of war, or participation in a war. In all other cases, there is no requirement whatsoever for what they term a “positive negative”. The essence of this argument is that if the Dáil makes any statement or even passes a formal resolution that the State is not participating in a war, that is a matter of political expediency, but is not a constitutional requirement. The applicant, on the other hand, argues that there is a war, and that there is participation, and submits that it is clear from the Horgan case that an assent is required pursuant to Article 28.3.1..

On the question of the scope of the Article, I find that this is both wide and narrow. It is required to be met, in conformity with the constitutional process therein envisaged, on each and every occasion on which there is an intended declaration of war on the part of the State or when there is an intended participation by the State in a war, whether declared by it or not. In that sense it is very wide. It is narrow in the sense that it requires such an assent only in those two circumstances, and not otherwise, as is clear from its wording. In the event there is no declaration of war, or no participation in a war, there is no requirement for any assent. The Article does not require that the Dáil determine that the State has not declared war. Equally it does not require that the Dáil determine that the State is not participating in a war. In the course of the submissions, there was a suggestion made on the part of the applicant that there had been a deliberate avoidance by the first named respondent to seek the assent of the Dáil to what the applicant contends is participation. Apart from the fact that this was not a ground upon which the relief sought to commence these proceedings was based, or granted, there was, in reality, no evidence to support such a contention. I do not reach my decision in this case based on this argument, which was relatively peripheral, and in this part of the judgment, deal only with the actual scope of the Article. Of course, this is not the end of the matter, because each of the parties proceed on diametrically opposed arguments, namely in the one case that there is a war and there is participation, and on the other that there is neither.

While both parties suggest the court may not have to pronounce on what is meant by a war, it is nevertheless the case that to be successful in his proceedings, the applicant must present grounds sufficient to establish that what is or has existed in Afghanistan constitutes, in law, a war or ought to be considered to be so. And that must be established by reference to Article 28, 3.1., subject only to the respondent’s contention if successful, that the existence of such a state of affairs, being a matter peculiarly within the ambit of the executive arm of the state, checked in appropriate circumstances, by its legislative arm as provided for in Article 28.3.1, it follows that the courts, in considering the position, should act with great restraint, in conformity with what they contend is the applicable jurisprudence in such matters.

It is in the foregoing context that the applicant’s case must be viewed. The applicant’s first argument as set out above is based on the wording of another sub article of Article 28, namely 28.3.3 the applicant goes so far as to say that the Constitution clearly defines war as “an armed conflict”. The respondents have contested this approach on the basis, they submit, the very content of Article 3.3 does not support the applicant’s analysis. It is undoubtedly true, and this was evident from the range of arguments put forward both by the applicant and the respondents as to what precisely is meant by war in Article 28.3.1. or indeed what legal definition ought to be applied to the word at all, that, if assistance could be gleaned from the terms of Article 28.3.3 of the Constitution on the meaning to be ascribed to war in Article 28.3.1., this would be the preferable starting point, being within not simply the Constitution, but the very same Article. However, a reading of Article 28.3.3 does not support the contention of the applicant. Indeed, the wording of the Article suggests the contrary. Article 28.3.3 covers different situations, making a distinction between time of war or armed rebellion, and, separately a situation of “armed conflict”. The context makes it clear that a distinction was being drawn between the first set of circumstances, and the second, the latter providing for a declaration of emergency in circumstances which are short of or different to a time or war or armed rebellion, that is, a third type of hostility which nevertheless creates a situation of emergency, and therefore ought to fall within a “time of war” for that purpose. That certain something is a state of “armed conflict”. It is undoubtedly true that in certain circumstances a war might include or be represented by an armed conflict, but the opposite is not necessarily the case. If what was intended to be included in the second part of Article 28.3.3 of the Constitution was the existence of a war or even of armed rebellion, wheresoever occurring, it would have been quite a simple matter for its framers to have said so – indeed in the simplest possible terms. It is trite law to confirm that different words or phrases appearing in a Constitution are assumed to have different meanings. Here, the contention of the applicant can only succeed if it is assumed that the framers of the Constitution intended that “war” and “armed conflict” should have the same meaning, something which cannot be assumed or concluded from the context in which they are used. Indeed if they were to be considered as the same, or war was to be defined as being constituted by mere armed conflict, then the second part of the phrase Article.28.3.3 upon which the applicant relies is tautologous. I am not satisfied that, on this ground, the applicant has satisfied the court that to constitute a war, within the meaning of Article 28.3.1 it is sufficient to find the existence of an armed conflict because of the use of that phrase in Article 28.3.3.

On the same issue, as to the aid which can be gleaned from the provisions of the Spanish Civil War (Non-Intervention) Act 1937, that Act was passed under the Saorstat Eireann Constitution, and moreover, in its long title refers to it as being the implementation of international obligations. It defines the war by specific reference to the events in Spain at the time. Being passed in such limited circumstances, it is not in any way determinative of the meaning of war for the purposes of Article 18.3.1 of the later Constitution, although of course that occurred not long after.

On the same issue, namely, as to what constitutes war within the meaning of Article 28.3.1, both parties put forward arguments as to why the events in Afghanistan do or do not constitute a war. What is remarkable is that, notwithstanding all the argument, no party was in a position to refer to any accepted legal definition of what is meant by war in national or international law. It is equally true that, among the several general dictionaries opened, the word is defined as having a variety of meanings, but these cannot be accepted as constituting a clear legal definition of the word either. As to the learned writings which were relied on by the applicant, namely Schwartzenberger and Oppenheim, invoked in a different context, neither of them gives a legal definition of what constitutes war, still less an accepted definition in international law, which might be considered surprising were it not for the fact that what may constitute war to one state or party to a conflict may not coincide with that of another. So far as earlier editions of these volumes are concerned these may be influenced by the fact that they were written at a time when the concept of war was certainly best and most frequently represented by the existence of hostilities emanating from formal declarations of war, as is clear from these writings themselves. What seems clear from more modern writing or thinkers is that the position has changed or evolved, and that in more recent times, there are wars, armed hostilities, armed conflicts, police actions, and several phrases used to describe hostilities of one kind or another, not all of which are to be treated in the same way, or in the same way as between each of them and war. The applicant has not established therefore that there is any standard recognised legal definition of war.

As to facts which might establish the existence or not of war in Afghanistan, it is argued by the applicant that de facto control of Afghanistan was by a group called the Taliban, allegedly associated with Al Qaeda. It was, he alleged, the de facto government of that country. The fact that it was recognised by only a small number of states is irrelevant, and that the United Nations and Ireland recognised a different group as the true government of that country, does not change matters, as, according to the applicant, there is a large debate on these matters which this court could not resolve. The respondents argued that these matters were relevant, as the latter group was the government recognised by this State and also by the United Nations, and that the events occurring in Afghanistan generated by the coalition of states led by the United States, occurred with the consent of that lawful government. Therefore it could not constitute a war as that is understood, either within Article 28 or in international law. I agree with the applicant that it would not be possible for this court to decide whether on the above facts, and the state of events in Afghanistan as described, there could not be a war, if only because there is insufficient material before the court upon which the court could come to any view on this issue, having regard to the judicial restraint incumbent on it, to which further reference will be made below. On the other hand, it is equally impossible to agree with the applicant that this state of affairs assists in establishing that what was occurring in Afghanistan was actually a war, either within the meaning of Article 28.3.1 or in international law On the basis of this argument, it not being for the respondents to disprove that a war exists or existed in Afghanistan, but rather for the applicant to do so, at least to a degree which satisfies the court that it comes within the ambit of Article 28.3.1, the applicant has not, on this ground, established the existence of a war in Afghanistan, such that that Article comes into play, or such that the issue of any participation in such an alleged war requires to be considered.

However, given the importance of the issues raised by the applicant, and notwithstanding my finding that the applicant has not established that a war has or is occurring, I should for completeness sake also address the issue of participation in such a war, within Article 28.3.1.of the Constitution.

The applicant argues that the court ought to find that there is participation in a war and that therefore the terms of Article 28.3.1 have not been complied with. This argument is primarily based on a premise that involves an indirect invocation of Article 29 of the Constitution. In essence this argument, although indirect, can best be understood as constituted by the following. Ireland subscribes to principles of international law, as is clearly stated in Article 29. Mr. Rogers accepts that, following the Horgan case, supra. Article 29 is not justiciable at the suit of an individual citizen. However, the applicant argues that Article 29 simply reflects pre existing principles of international long established since at least the 19th century. Among these are the principles of neutrality found, inter alia, in the Geneva Convention of 1907. It is his argument that the decision to allow overflights and landings, having regard to the State’s declared neutral status, are contrary to those principles of neutrality, and therefore if there are belligerents, as here, travelling to and from the theatre of war, that constitutes participation in a war. The respondents argue that the applicant, while arguing indirectly, is nevertheless invoking Article 29, by essentially a disguised route, and that this is clearly impermissible, having regard to the established jurisprudence on the matter.

I do not consider it necessary for the purposes of this judgment to decide whether or not an applicant is entitled in law to invoke principles of international law, recognised in the Constitution, so as to enable him establish that what has occurred is a breach of an Article of the Constitution, even if, as here, it is a different Article to that which affirms the State’s acknowledgement of those international law principles. He is not entitled to do so, if this would undermine or evade the correct scope of his entitlement to invoke Article 29 which this Court has clearly established. There are several authorities in support of the position that Article 29 does not confer individual rights but rather refers to relations between the State and other states. This position, first iterated in In re O’Leighleis [1960] I.R. 93, was most recently reaffirmed in the case of Horgan. The respondents argue that the very terms of Article 29 are vague and broad, and are not suitable to create obligations enforceable in these proceedings. The argument of the applicant is that the State is in breach of what are established international principles of neutrality in times of war. The respondents argue that the position of the State in terms of its neutrality is not provided for under the Constitution. Nor they say is there any reason why the State should not subscribe to a principle of neutrality which might not be on all fours with statements of neutrality found in learned volumes of international law, and they point, for example to the fact that several countries, not being neutral in the sense contended for by the applicant, and while having declared themselves against the actions of the coalition in Afghanistan, have nevertheless provided the same type of facilities to the coalition as have been agreed by the first named respondent.

In that regard, I find as follows. While permitting certain activities during a war may jeopardise the neutral status of a state, it does not necessarily follows that such acts constitutes participation in a war, as is contended for. If that were so, it would inevitably follow that any state, not being a neutral state, and permitting any such facilities, must ipso facto be participating in a war, a matter which would have, as its result – in international law terms – and not simply by reference to the Irish Constitution – the automatic participation in the war by several states who have declared themselves utterly against the events which have occurred in Afghanistan. No direct statement is made in either Schwartzerberger or in Oppenheim that the activities mentioned constitute participation in a war.

The question of neutrality is predominantly one of policy. It is true that the Constitution is silent on this question, and it is equally true that the issue of neutrality has been long considered and debated by many writers, not only the neutrality of the State, whatever that might be, but neutrality of others states, and in general. And it is equally true that writers or commentators might quite correctly point to the hypocrisy of a state proclaiming neutrality, and yet engaging in activities which do not appear to be on all fours with such proclamation. But it cannot, in my view, follow either in logic or in law that there is a necessary equivalence between the loss of the status of neutrality for alleged failure to comply with norms of neutrality in international law and the establishment of participation in a war. A simple example might be the execution by a state, until then neutral, of a particular type of treaty, which might well result in the loss of its hitherto neutral status, whether declared or otherwise It could of course be that the same act might constitute both, but only coincidentally. The establishment of a state of affairs which constitutes participation in a war, within the meaning of Article 28.3.1 must necessarily be based on factors objectively established, and not simply on the basis that an act which jeopardises neutrality automatically constitutes participation. And that applies, even in the case where a convention such as the Hague Convention, sets out what might jeopardise a state’s neutral status such as the movement of troops over its territory. Moreover, the applicant himself relies also on the finding in the Horgan case, that the question of participation is one of degree. That also being the applicant’s contention, it could not be the case that any breach of the contended for principles of international law on neutrality constitutes, by that fact, participation in war. Further I do not accept that the applicant has established that the provisions of the Hague Convention as contended for, are sufficiently well established as a principle of international law as are necessarily included in Article 29 of the Constitution. Having regard to the foregoing, I reject the applicant’s contention that, on the grounds that the decision made, or the permissions granted, constitute an alleged breach of international principles of neutrality, thereby constitute participation in a war.

The respondents further contend that the decision of the first named respondent and the implementation of the same by the permissions and facilities announced were taken in compliance with Resolution 1368. The applicant argues that (a) the resolution did not permit the events which occurred in Afghanistan, and (b) even if it did, it would not render an unconstitutional act constitutional. On the first of these, I am of the view that it is neither permissible nor appropriate for this court to seek to interpret a resolution of the Security Council of the United Nations. This court, in my view, has no competence so to do, and I make no comment on the argument of one or other party on the true meaning of the resolution. I accept, however, the argument of the applicant that if a Security Council resolution directed or implied that the State was obliged to embark on a programme which was obviously unconstitutional, the existence of that resolution could not render the programme constitutional. The arguments on this issue do not bring the matter any further.

The respondents make, however, a more formal argument on the question of participation. They say that this is fully disposed of by Kearns, J. in the Horgan case, and particularly in his recognition of the fact that the courts are not the realm in which decisions as to participation or otherwise in a war should be considered. On those grounds, and following the jurisprudence establishing judicial restraint, I adopt the pronouncements of Kearns, J., in that case, as appropriate to apply also to the present case, and in particular the following, based on the decision in the CND case:

“The defendants contend, I believe correctly, that this case may be relied upon by the Court as emphasising the strictly circumspect role which the Courts adopt when called upon to exercise jurisdiction in relation to the executive’s conduct of international relations generally.”
And
“Nonetheless this court does accept, for all the reasons stated, that some quite egregious disregard of constitutional duties must take place before it could intervene under Article 28 of the Constitution. This court is not at all persuaded that this has been established.”
And further:
“The issue of ‘participation’ is not a black and white issue. It may ultimately be, as stated by the first defendant, a matter of ‘substance and degree’. However that is quintessentially a matter for the government and the elected public representatives in Dáil Eireann to determine and resolve. In even an extreme case, the court would still be obliged to extend a considerable margin of appreciation to those organs of the State when exercising their functions and responsibilities under Article 28.
The following passage from O’Malley v An Ceann Comhairle [1997] 1 I.R. 427 at p.431 per O’Flaherty J is also very telling:
“How questions should be framed for answer by Ministers of the Government is so much a matter concerning the internal working of Dáil Eireann that it would seem to be inappropriate for the court to intervene except in some very extreme circumstances which it is impossible to envisage at the moment.”
Having regard to the absence of any clear line of authority as to the correct or appropriate legal definition of war, or as to what constitutes participation in any such war, or even as to what consequences flow from the failure to comply with invoked principles of international law on issues of neutrality, it is wholly appropriate that courts should adopt the same highly restrained approach to the question of whether and in what circumstances the executive arm of a government should take decisions relating to war or armed conflict or hostilities of whatever nature. It is equally highly appropriate that, in considering the manner in which a Constitution provides, in favour of the elected representatives, the possibility of applying checks to any overreaching by the executive arm of a state, as is the case under our Constitution, the judicial arm should adopt the same prudent and restrained approach to interference.
Secondly, the applicant argued that there has been a significant increase in the numbers of flights and troops landing or overflying the State, compared to the position in the past. However, merely because there has been an increase in the numbers, this cannot either automatically constitute participation. Since that is a relative matter, it says no more than that the position has changed. There is little or no evidence before the court as to the relative alleged increase in numbers of flight or troops, as compared to any past period, and in reality the court is being asked to assume that there is a significant increase. That is not to suggest that there has been no increase, because it is evident there has been a steady movement of flights over and through the State. But it establishes no more than that. It does not even establish, on the question of degree, referred to by Kearns, J. in Horgan, that there is such a movement of aircraft or troops that the appropriate level or degree, whatever that might be, has been reached. In that context, Mr. Rogers also invoked the provisions of Article 15 of the Constitution prohibiting the maintenance of any army within the State, contending that the facilities which are being afforded pursuant to the decision and the permissions are such as to constitute maintenance within the meaning of that Article. The respondents argue that this is intended to ensure that, within the state, there is only one true and official army, namely the Irish army. I am satisfied that the respondent’s argument is correct as to the true meaning of the Article, and that the facilities offered do not constitute maintenance by the respondents of an army within the State, contrary to that Article.

The respondent also invoked the provisions of the Constitution in its Irish version, on the basis that they suggest that version requires a direct active involvement in a war to constitute participation within the meaning of the Article. I do not think it necessary to consider this in detail, because the phrase used in the Irish version of Article 28.3.1 which is “na páirt a bheith an” is not conclusive, and does not require further consideration, it not being of sufficient assistance to the court to conclude what precisely is required to constitute participation in a war, although it does suggest at least something quite active or involved. This phrase translates as “nor to take part in” but it seems to me that this is no different in substance than the use of the word “participate”, and indeed is a very close translation of that word, even if a different phrase could also have been used.

I also reject the applicant’s contention that the Horgan decision made it clear that a resolution of the Dáil was a necessary precondition, even to establish non participation. I have already found that the correct scope of Article 18.3.1 of the Constitution covers only those situations where there is a declaration of war, or participation in a war is intended but that there is no constitutional requirement for a type of clearance by the Dáil of a decision which does not constitute participation in a war. While there was such a resolution in the Horgan case, it is not clear precisely why that was so. The respondents contend it was political expediency. It may also have been the case that, in the event there was a declaration of war by the United States against Iraq, it was appropriate to bring the matter before the Dáil for a formal resolution. I do not have to decide that. The position in the present case being that I have found it not established that there is a war in the sense of Article 28.3.1. and the applicant not having established participation within the meaning of that Article, on the basis of his arguments even assuming war, no resolution was necessary.

The applicant has failed to point to anything that would warrant the interference of the Courts in this exercise of executive power in line with authorities such as Boland, Kavanagh v. Ireland [1996] 1 I.R. 321, and most relevantly, Horgan v. Ireland, supra. I conclude in the foregoing circumstances that the applicant has not established in the present case that there is, by virtue of the decision sought to be impugned, or by virtue of any of the permissions granted, or by the abolition or waiver of stipulations attaching to any such permissions, participation in war.

The second line of argument of the applicant in this case, is made on the basis of it being “if necessary”, according to the applicant’s Statement to Ground an Application for Judicial Review, and concerns the more technical attack, which arises on the correct interpretation of the Act of 1946 and the Orders made thereunder. The relief sought and the grounds for the same are repeated here, because the arguments ranged far and wide, as if there were several further grounds permitted pursuant to the order of Finnegan, J. The relief was sought and granted in the following terms:

“If necessary, a declaration that the said Orders of 1952, 1973, and 1989 are ultra vires, unconstitutional, and void and/or the Air Navigation Act, 1946 and in particular s.5 thereof, is unconstitutional and void insofar as it authorises the said orders”.
The grounds upon which this was permitted to be brought were the following:

“The impugned decisions are not authorised by the Orders of 1952, 1973, and 1989. If it is found that the decisions were authorised, the said orders are ultra vires and unconstitutional and void and/or the Air Navigation Act, 1946 and, in particular, s. 5 thereof, is unconstitutional and void on the grounds of excessive delegation of power, contrary to Article 15 of the Constitution”.

While the grounds in fact included also a reference to Article 40 of the Constitution, it is clear from the order made in the proceedings that that ground was not permitted, but the order in respect of this particular ground was not modified accordingly. I have simply eliminated it, and no argument was tendered on it. The grounds permitted are therefore quite narrow.
Firstly, the applicant argues, are the decisions authorised by any of the above Orders. According to the applicant, they are not. If however the court finds that they are within one or other or more than any of the above orders, then in that event, the applicant asserts they are ultra vires the Act of 1946. It is also claimed that S.5 of the Act of 1946 is itself constitutional.

As in the case of the first ground raised by the applicant, I have set out the relevant sections of the Act of 1946 and as amended and the Articles of the Orders at the commencement of this judgment. As to the Orders made pursuant to the Act of 19946, I deal first with the argument made that the Order of 1973 covers both civil aircraft and military aircraft. On this issue, the applicant alleges that the terms of the 1973 Order itself make it clear, on an ordinary reading of it, that it covers all aircraft, and therefore that military aircraft are strictly within its ambit. That being so, all military aircraft, armed or unarmed, are obliged to secure the permission of the Minister for Transport to overfly Irish airspace and/or land and/or refuel within the State. It is clear from the discovery made by Mr. McKay on behalf of the Minister for Transport that no such permissions were either sought or granted in respect of military aircraft, despite the discovery and disclosure of a vast amount of documentation. The respondents’ argument on this is equally straightforward. They argue that the provisions of the 1973 Order covers only civil aircraft. I agree with the respondents that the 1973 Order covers only civil aircraft, and not military. This is clear from the source specifically invoked as the authority for the Order. The suggestion by the applicant that, on its face, it covers all aircraft, can only be accepted if the actual sections of the Act of 1946 cited as the appropriate source are ignored, there being no reason to do so. It does not on the other hand, cover military aircraft, as even on the applicant’s own argument, only Section 3 of the Act covers such aircraft, and it is not invoked as a source for the 1973 Order.

Further it would be illogical and inappropriate to have a dual system in place, one under the 1952 Order and a different one under the 1973 Order, each applicable to military aircraft. The role of the Minister for Foreign Affairs is one which is peculiarly appropriate in the case of military aircraft, and not at all appropriate in the case of civil aircraft. The rationale behind the difference in treatment of military aircraft and civil aircraft arises by virtue of the fact that military aircraft of all states are “state aircraft”, and therefore fall to be considered as part of the relationships between states which is on a different and peculiar level, involving as it does matters of diplomacy and international relations, all within the ambit of the Minister for Foreign Affairs.

As to the question of an impermissible delegation of power to the Minister for Foreign Affairs by the 1952 Order, the first of these arguments is based essentially on the contention that only Section 5 of the Act of 1946 is invoked by the Minister for Transport and that this constitutes a bare power, and that no Order has been made invoking Section 3(2) of the Act. The respondents reject this contention, and argue rather than the power in the Act is exercised correctly by the Minister for Transport, that the Order is made pursuant to the powers in Section 3 and that the role of the Minister for Foreign Affairs is simply to establish the administrative procedures which are to apply to the overflight or landing of foreign military aircraft, it being his peculiar role to do so. It is, in the case of the Act of 1946 clear that there is only one section which applies to military aircraft. The question which arises therefore, is whether, in making an order, as is permitted under Section 5, the Minister is obliged to make specific reference to the only section in the Act which could constitute the source of the power, in this case, as to military aircraft. I am not satisfied that he cannot do so. This is a question of degree in the sense that if there were any doubt about the application of Section 3(2) in the Act of 1946, it might be said that it could not be ascertained clearly. However, both the applicant and the respondent agree that the only section in the entire of the Act of 1946 which could possibly apply to military aircraft is Section 3 of the Act. That being so, and the applicant not having presented any jurisprudence to the contrary which prohibits this, I am satisfied that the 1952 Order is lawfully and properly made.

However, there is a second argument, namely, that there is an entire delegation of power by the Minister for Transport to the Minister for Foreign Affairs, and that this too is impermissible. I have already set out the role of the Minister for Foreign Affairs in state to state relationships in connection with my findings on the alleged application of the 1973 Order to military aircraft. I am satisfied that he is the person who is best placed to set out the procedures such as permissions, stipulations and/or waivers applicable to state aircraft, and within that, military aircraft. The judgment of Henchy J. in Cassidy v. Minister for Industry [1978] IR 297 where he stated at p. 310 that an order or other statutory instrument will not be invalid or ultra vires its parent statute if it is “within the limitations of that power as they are expressed or necessarily implied in the statutory delegation” is apt, as a consideration of the requirements in the 1952 Order are those necessarily implied in respect of military aircraft. Once a decision has been adopted to apply provisions of the Act, as here, to military aircraft being state aircraft, it falls within the sphere of the Minister for Foreign Affairs to oversee such administrative requirements as may be applicable or desirable in terms of compliance. There is nothing mysterious or secret about such a situation. It is, on the contrary, the normal way in which relationships between states are regulated. It cannot therefore be accepted that the distinction which is drawn between on the one hand the 1952 Order and the 1973 Order is an unfounded or an illegal one. I reject the applicant’s argument therefore that the 1973 Order applies to all aircraft, whether military or civil, or that the provisions of the 1952 Order constitute any impermissible delegation of power, or that Section 5 of the Act of 1946 is unconstitutional for the reasons claims.

Two further and related arguments were also made by the applicant, which I also address. The first concerns the question whether, given the use of the word “express” in the 1952 Order, that Order requires a specific permission in respect of each and every overflight or landing, as the applicant argues. It is contended that this must be so, because the stipulations must be specific and must be recorded. Otherwise, it is contended, it would not be possible to ascertain the terms of any permission, or the stipulations attaching to them. Further, on the second and related argument, Mr. Rogers contends that the unrecorded waiver or lifting of stipulations attaching to the blanket exemption described above, in the case of military aircraft pursuant Resolution 1368 is equally impermissible, although he did not refer the court to any specific norm or rule of legislative or administrative law which is thereby infringed

While I consider it understandable that the applicant complains about the absence of records of stipulations, I do not consider that the word “express” must be understood only in the sense that it requires stipulations to be placed either on a case by case basis – one argument contended for – or on an aircraft by aircraft basis – the other argument made, under the 1952 Order, and I find no rule of law which prohibits an agreement to grant blanket exemptions of the type arranged some years ago. The existence of the blanket exemption is recorded, although perhaps not in the usual format. From the affidavit of Mr. Cooney in which the stipulations are referred, it is evident there must be some recorded indication of what they consist of. Further, while it is undoubtedly good administrative practice that the stipulations and the waivers, as well as the record of the lifting of any waivers in any particular case be appropriately recorded, it not unlawful or in any way contrary to legal norms existing in this State not to do so. In the circumstances, I do not accept that these matters bring the applicant’s argument on the 1952 Order any further.

A final argument is made by the applicant, based on the contention that Section 5 of the Act of 1946 is itself unconstitutional on the grounds that it lacks any policies or guidance as to the criteria to be applied. Although this was argued as part of the submissions of the applicant, it was not a ground upon which any relief was sought or permitted in the Order made on the application for leave to issue judicial review proceedings. In the circumstances, I do not intend to make any decision on that argument.

Issue of Delay

On an entirely self contained matter, the respondents raise the issue of delay in this case. This is based on the well established principles applicable to the question of delay within Article 84 of the Rules of the Superior Courts, which require that the proceedings be commenced within a specified time period, depending on the relief sought, and in any event promptly. The respondents claim that the applicant neither commenced his proceedings within the time prescribed nor promptly, and that the court should therefore exercise its discretion against the applicant. The applicant contends that (a) the acts in question which he seeks to have quashed are continuing, and (b) in any event he did not have the information necessary for him to commence the proceedings earlier than he did.

While it is true that the original order of Finnegan, J. indicated that since the matters complained of were continuing, the question of the applicant not having brought the proceedings within the required time frame did not apply. It is the case, on the applicant’s own evidence, that while the decision was announced in late September 2001, and repeated on dates in October 2001, he did not himself seek to have information from the second or third named respondents until late in the month of June 2002. Nowhere is this delay of eight months explained. What is argued is that it was not until July 2002 that the applicant had the material necessary for him to proceed. That being so, Mr. Rogers contends that there was no delay between that date and the date in September when the proceedings were commenced.

I do not accept that the applicant has discharged the onus on him to move within the time provided for in the Rules of the Superior Court, nor promptly, as that is understood in the well established jurisprudence, which I do not need to cite in this judgment, and he has given no reason whatsoever for the delay arising in the matter. While I understand the comment by the learned President, on the date of the granting of leave, there are in fact two issues to be considered. The first concerns the decision taken by the first named respondent and repeated by the second named respondent. That was known as early as September or October 2001, and known to the applicant. He was, therefore, at that stage, perfectly able to commence proceedings in respect of the decision. The decision was not a continuing situation. The second issue concerns details of the permissions for overflying and/or landing which, if one takes his argument on this issue at its highest point, he required to have before he commenced proceedings. He was however in a position to invoke – as he did some eight months later – the provisions of the Freedom of Information Act, for the purposes of putting together the very materials which he wished to rely on. It is noteworthy that, in response to his letter sent in late June, 2002 he received a reply from the second named respondent’s office in July. There was therefore nothing at all inhibiting him from seeking and obtaining all of the essential material well within the period set forth in the Rules of the Superior Court, and could also have moved promptly as required. Although therefore there was a continuing situation in so far as the permissions were concerned, I am not satisfied that that continuing situation in respect of those justifies a finding that the applicant is thereby exempt from commencing his proceedings as required, in respect of the decision or having regard to the relief or grounds raised on the legislative scheme.

In these circumstances, and having regard to the fact that he has furnished no evidence whatsoever as to the reason for the lengthy delay between the date of the decision and late June 2002 when he first made application under the Freedom of Information Act, which might have justified the court in excusing the delay in question, I am satisfied that the applicant did not move either within the time prescribed by the Rules or promptly, as required pursuant to the jurisprudence.

Having regard to the foregoing, I reject the applicant’s application for each of the reliefs sought.

 

Government of Canada v Employment Appeals Tribunal

[1992] ILRM 325
Hederman J
The notice party, Mr Brian Burke was employed as a chauffeur by a foreign sovereign state, namely Canada, in the Canadian embassy in Dublin. He was not a member of the Canadian foreign service and enjoyed no diplomatic privileges.

He was so employed from 3 June 1986 until 16 May 1988 when he was dismissed. He has claimed that his dismissal was unfair within the meaning of the Unfair Dismissals Act 1977. He brought proceedings before the Employment Appeals Tribunal where the government of Canada contended that the tribunal had no jurisdiction to entertain the claim on the grounds of the state immunity of Canada which had not been waived by that state. The tribunal rejected this submission, assumed jurisdiction, and found that there had been a breach of the Act and awarded a sum of £10,000 for unfair dismissal and £200 in respect of a claim under the Minimum Notice and Terms of Employment Act 1973. The legal representative of the Canadian government left the proceedings when the tribunal indicated that it would entertain the claim. In the High Court the Canadian government was refused an order quashing the findings of the tribunal on the ground that the doctrine of sovereign immunity did not apply to the case. I am satisfied that it does.

The doctrine of sovereign immunity is one of the generally recognised principles of international law which, by Article 29.3 of the Constitution, Ireland has accepted as its rule of conduct in its relations with other states. I see no reason to differ from the view expressed on the general position by O’Byrne J in Saorstat and Continental Steamship Co. v de las Morenas [1945] IR 291 at 298, where he states:

The immunity of sovereign states and their rulers from the jurisdiction of the courts of other states has long been recognised as a principle of international law and must now be accepted as part of our municipal law by reason of Article 29.3 of our Constitution which provides that Ireland accepts the generally recognised principle of international law as its rule of conduct in its relations with other states.

It is to be noted that the Oireachtas has never sought to qualify or to modify this position. The service with which this case is concerned is one related to the exercise of the diplomatic functions of the ambassador in that the third party’s work was that of driving the Canadian ambassador’s motor car which was provided for the assistance of the ambassador in the performance of his duties. I am satisfied that this falls within the area of sovereign immunity envisaged and adopted by the Constitution. For the purpose of this case it is unnecessary to express any view upon the extent to which the doctrine of sovereign immunity may have been modified or limited in respect of commercial activities conducted or undertaken by a foreign sovereign. That is not this case.

In Byrne v Ireland [1972] IR 241 this Court was concerned only with the question of the State’s immunity under its own domestic law in its own courts and the judgment and conclusions of Walsh J in that case relate only to that subject and not to the rules or principles of public international law by which the present case must be decided. In my view that decision cannot be successfully relied upon by the respondents.

In my opinion the Employment Appeals Tribunal had no jurisdiction and in consequence its order must be quashed.

I would allow the appeal.

McCARTHY J:

Article 29.3. of the Constitution provides:

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

The observation by O’Byrne J in Saorstat and Continental Steamship Co. v de las Morenas [1945] IR 291 at 298, cited in the judgment of Hederman J, that the immunity of sovereign States and their rulers from the jurisdiction of the courts of other States must be accepted as part of our municipal law has not been challenged. I reserve for another day the question of the true construction of s. 3 and, in particular, as to whether or not a claim under the Unfair Dismissals Act imports conduct in its relations with other States within the meaning of the section.

It is a generally recognised principle of international law that foreign States and their agents at one time enjoyed sovereign immunity from being impleaded before any court or administrative tribunal in the domestic arena. The history of that immunity is detailed in the judgment about to be read by O’Flaherty J. I accept his conclusion that it is now clear that the general principles of international law have so developed as to depart radically from the absolute State immunity doctrine to a much more restrictive view of sovereign immunity. It is, still, immunity but its application is restricted. I adopt the observations of Lord Wilberforce in I Congresso [1983] 1 AC 244 at 267 as being a correct statement of the current generally recognised principles of international law — one must decide whether the relevant act upon which the claim was based should, in that context, be considered as fairly within an area of activity, trading or commercial, or otherwise of a private law character … or whether it should be considered as having been done outside that area and within the sphere of governmental or sovereign activity.

The employment of an embassy chauffeur is not within a trading or commercial area of activity — is it within the sphere of governmental or sovereign activity? Is there some other category, neither commercial nor governmental, in which the embassy may be engaged? A contract of employment or contract of service is not, in that context, a commercial transaction nor is contract cleaning or contract car hire unless such be for the commercial purposes of the foreign mission. Whatever the implications may be in domestic law, whatever the rights might, at first sight, arise in respect of the Unfair Dismissals Act, unless it can be shown that there is a conflict with some private constitutional right, that matter is entirely governed by whatever are established to be the generally recognised principles of international law. There is no indication, whatever, that such principles recognise any exception in litigation or like procedures concerning the employment or non-employment of a member of the domestic embassy staff. Apart from a reference to the constitutional right of access to the courts, it has not been suggested that the principle of sovereign immunity contravenes any constitutional right of the notice party. It is self evident that the notice party retains the right of access to the courts — this is an exercise of that right albeit as a notice party.

I agree with the observations of O’Flaherty J on the procedural objection raised. In the result, I am forced to the conclusion that in respect of the domestic staff of the embassy, the government of Canada is immune from suit, including proceedings before the Employment Appeals Tribunal. I would allow the appeal, set aside the order of the High Court, and grant an order quashing the decision made by the Employment Appeals Tribunal on 9 January 1989. In the course of argument, I enquired from counsel for the government of Canada as to its attitude to the award made by the tribunal. Counsel stated that ‘the government of Canada will not seek to avoid meeting its obligations, if the privilege is established’.

O’FLAHERTY J

(Finlay CJ and Egan J concurring): This is an appeal from the judgment and order of the High Court (MacKenzie J) of 14 March 1991 dismissing the application that had been brought by the government of Canada for an order of certiorari quashing the decision made by the Employment Appeals Tribunal on 9 January 1989 under the Minimum Notice and Terms of Employment Act 1973 and the Unfair Dismissals Act 1977 in favour of the notice party, Mr Brian Burke.

Background facts
Mr Brian Burke was from 3 June 1986 to 16 May 1988 employed as a driver with the Canadian embassy in Dublin. He took over this job following a vacancy created by the retirement of his father who had occupied the position for twelve years before that. On 16 May 1988 Mr Burke was dismissed from his employment and he then brought proceedings pursuant to the Unfair Dismissals Act 1977 before the Employment Appeals Tribunal. At a hearing before that tribunal the solicitor for the government of Canada objected to the tribunal entering into an adjudication on the matter claiming that the government of Canada was entitled to sovereign immunity in respect of such proceedings. In the course of the debate before us the objection was made that proceedings before an administrative tribunal such as this would not be capable of attracting a claim of sovereign immunity at all. To that topic I will return later in this judgment. The solicitor made clear that if the tribunal entered into a consideration of the matter that he would be forced to withdraw and would not take any part in the proceedings. The situation then was that the onus of proof rested on the employer to justify the dismissal and, since the employer was not represented, the tribunal went on to decide the matter in Mr Burke’s favour and awarded him a sum of £10,000 for unfair dismissal and a sum of £200 in respect of his claim under the Minimum Notice and Terms of Employment Act 1973.

Proceedings in the High Court
The learned High Court judge decided that the doctrine of absolute sovereign immunity had no application in the modern world considering the nature and extent of the acts of many sovereign states. He took the view that Mr Burke’s claim did not involve any challenge or inquiry into any act of sovereignty or any governmental act. He went on to say:

The doctrine of restrictive immunity has grown up in the last 50 years. Nearly every country now engages in commercial activities in the market places of the world. This doctrine of restrictive immunity gives immunity to acts of a governmental nature but no immunity to acts of a commercial nature and many nations have abandoned the doctrine of absolute immunity.

Origins of Foreign State immunity
The idea that foreign states and their agents were immune from the jurisdiction of domestic courts is said to be rather obscure but received its classic formulation in the 1812 decision of the Supreme Court of the United States of America in the case of Schooner Exchange v McFaddon (1812) 7 Cranch 116.

In that case, the Schooner Exchange, owned by certain citizens of Maryland, was, while on a voyage from Baltimore to Spain, seized by certain persons, acting on the orders of the Emperor Napoleon. This was during the war between Great Britain and France. The following year, 1811, the Schooner Exchange, converted into a French national craft known as the Balaou , manned by a French crew and commanded by a French captain, having encountered great stress of weather upon the high seas was compelled to enter the port of Philadelphia for refreshments and repairs. Having procured the requisite refreshments and repairs she was about to depart from the port of Philadelphia and to resume her voyage when she was seized and detained by her former owners. They argued that their property in the vessel remained unchanged and in full force. And they sought an order that she might be restored to them.

Marshall CJ, delivering the opinion of the court, having recited that the case involved ‘the very delicate and important inquiry, whether an American citizen can assert, in an American court, a title to an armed national vessel, found within the waters of the United States’, said ‘the question has been considered with an earnest solicitude, that the decision may conform to those principles of national and municipal law by which it ought to be regulated.’ This involved exploring ‘an unbeaten path with few, if any, aids from precedents or written law.’ He concluded that the vessel must be considered as a vessel which was the property of the previous owners but whose claim was ‘repelled’ by the fact that she was then a national armed vessel, commissioned by, and in the service of the Emperor of France.

The Chief Justice went on to say:

… the Exchange, being a public armed ship, in the service of a foreign sovereign, with whom the government of the United States is at peace, and having entered an American port open for her reception, on the terms on which ships of war are generally permitted to enter the ports of a friendly power, must be considered as having come into the American territory, under an implied promise, that while necessarily within it, and demeaning herself in a friendly manner, she should be exempt from the jurisdiction of the country.

It was submitted in argument that if a sovereign engaged in trade he would enjoy no immunity in respect of his trading operations; but the judgment left that question open.

Starke, Introduction to International Law (9th ed.) at p. 203 suggests several principles as the basis for sovereign immunity:

i. Par in parem non habet imperium . One sovereign power could not exercise jurisdiction over another sovereign power but only over inferiors.

ii. Reciprocity or comity. In return for a concession of immunity, other states or sovereigns of such states made mutual concessions of immunity within their territory.

iii. The fact that in general the judgment of a municipal court could not be enforced practically against a foreign state or sovereign thereof, or that the attempt to do so would be regarded as an unfriendly act.

iv. An implication from the circumstances; the very fact that a state allowed a foreign state to function within, or a foreign sovereign to visit, its territory, signified implicitly a concession of immunity, as no foreign state or foreign sovereign could be supposed to enter on any other terms. One judge well described this as ‘an implied obligation not to derogate from a grant’ (Jordan CJ of the New South Wales Supreme Court in Wright v Cantrell (1943) 44 SRNSW 45 at 52 et seq.)

v. The merits of a dispute involving the transactions or policy of a foreign government ought not to be canvassed in the domestic courts of another country.

Lord Atkin in The Cristina [1938] AC 485 established the well-known English formulation of the rule when he said at p. 490:

Two propositions of international law engrafted into our domestic law … seem to me to be well-established and to be beyond dispute. The first is that the courts of a country will not implead a foreign sovereign, that is, they will not by their process make him against his will a party to legal proceedings whether the proceedings involve process against his person or seek to recover from him specific property or damages. The second is that they will not by their process, whether the sovereign is a party to the proceedings or not, seize or detain property which is his or of which he is in possession or control (at p. 490).

The Irish jurisprudence
In the course of his judgment in Zarine v Owners of S.S. ‘Ramava’ [1942] IR 148 Hanna J engaged in an extensive review of many of the extant authorities. He said that in considering questions of international law (at p. 161):

… the court is entitled not only to regard cases decided by competent courts but also the opinions and writings of eminent judges and jurists on public international law… we are not bound by any decision of the British courts since 1922. We must consider the trend of public international law generally with reference to any particular topic, while giving due weight to any views expressed in Great Britain or in the United States or in any other important country.

That case was concerned with five ships owned by citizens of Latvia and Estonia which, consequent on the Russian invasion of those countries, were claimed by the USSR. However, the case was decided essentially on the point that this country did not recognise that particular takeover and so the USSR intervention to claim ownership of the vessels failed. However, Hanna J considered two further questions, viz

(a) Whether a sovereign State, which has not established legal ownership or actual physical possession of the vessels in the sovereign State or in its agents, is entitled to immunity on a bare assertion of a claim to the said vessels while in neutral waters.

(b) And whether the immunity claimed can extend to vessels belonging to a sovereign State, which are ordinary trading vessels engaged in commerce.

Having, as I said, engaged in an extensive analysis of all the relevant case law and many learned writings, the judge reached the conclusion that the immunity for state vessels under public international law does not apply to those vessels which are used for private trading purposes but only to such vessels as are publicis usibus destinata and that the immunity for state vessels other than those publicis usibus destinata has been granted only when the vessels are either owned or in the physical possession of the sovereign claiming immunity.

The subsequent appeal to the Supreme Court was confined to the question of recognition and, therefore, there was not any analysis of the matter with which we are concerned.

Pausing there, it would seem to be clear that at that time Hanna J was recognising a form of restricted sovereign immunity rather than the absolute immunity that appeared to have been established in the leading United States and House of Lords cases to which I have made reference.

However, in the subsequent decision of Saorstat and Continental Steamship Co. v Rafael de las Morenas [1945] IR 291 O’Byrne J, speaking for the court, appears to give Lord Atkins’s formulation unqualified approval and there is certainly no mention in the course of the judgment of a restrictive form of immunity as opposed to absolute immunity. In that case the defendant, a colonel in the Spanish army, came to this country to purchase horses for use of the Spanish army. He entered into a contract with the plaintiffs whereby it was agreed that the plaintiffs should reserve on his behalf accommodation aboard one of their vessels for the carriage of a certain number of horses from Dublin to Lisbon.

In an action for damages the defendant claimed immunity from the process of the court on the ground that as he had entered into a contract as an act of sovereignty on behalf of the Spanish government, a sovereign state, the proceedings impleaded that government, and should be set aside. It was held on appeal, affirming the High Court, that as the plaintiffs by their claim did not seek redress against any person other than the defendant, the government of Spain was not impleaded, and there was no basis for the defendant’s claim that the proceedings should be set aside.

It is clear that anything the court had to say about sovereign immunity in that case was obiter since the case was decided on the point that the court held that the defendant was personally responsible to the plaintiffs and that there was no ground for the suggestion that the government of Spain was being impleaded, either directly or indirectly, and, therefore, there was no basis for the claim that the proceedings should be set aside (at p. 303).

I am prepared to rest my judgment, therefore, on the proposition that Hanna J was right all those years ago and before the tide came in to obliterate, to the point of extinction, the doctrine of sovereign state immunity in most countries of the world. But, as an alternative, and to put the matter beyond doubt, I am prepared to say that our law should be shown to be in alignment with modern legal developments and, therefore, I would, at not too great length, propose to review these developments.

Modern developments
Mr Cooke SC for the government of Canada has urged upon us that nothing has occurred in the intervening years since the decision in the de las Morenas case which has changed the law of the State in regard to sovereign immunity. He pointed, by way of contrast, to a change in the law of the United Kingdom by virtue of the enactment of the State Immunity Act 1978 in that jurisdiction. He submits that an equivalent change in the state of law in this jurisdiction could only be brought about by the intervention of an Act of the Oireachtas. I reject this submission as it consigns to the courts a detached role which would be contrary to the judges’ obligations under the Constitution. Ireland’s obligation is to accept the generally recognised principles of international law as its rule of conduct in its relations with other states (Article 29.3). The ‘generally recognised principles’ of international law change from time to time, as the debate and research in this case has demonstrated. The Oireachtas is, of course, entitled to enact any legislation it pleases in accordance with the article but the courts, also, must make the appropriate declaration when called upon from time to time. Even assuming that what was set out in the de las Morenas case was correct for its time it is now clear that the general principles of international law have so developed as to depart radically from the absolute state immunity doctrine to a much more restrictive view of sovereign immunity.

It is clear that, certainly since World War II, many European countries had favoured a restrictive form of immunity and the United States became less enamoured of the Schooner Exchange decision over the years: see, for example, Mexico v Hoffman (1945) 324 US 30. Then there was issued the ‘Tate Letter’ of 1952. This led to a change of policy by the United States State Department whereby the department undertook, in future sovereign immunity determinations, to recognise immunity in cases based on a foreign state’s public acts, but not in cases based on commercial or private acts. The United States found that the Tate Letter did not solve all its problems, however, because the department found that if it applied the restrictive principle in a given case it was in the awkward position of a political institution trying to apply a legal standard to litigation already before the courts.

Moreover, it did not have the machinery to take evidence, to hear witnesses, or to afford appellate review. And so that led to the passing of the Foreign Sovereign Immunities Act of 1976 which set out to codify the restrictive principle of sovereign immunity, ie to restrict it to suits involving a foreign state’s public acts ( iure imperii ) and does not extend to suits based on its commercial or private acts ( iure gestionis ) and the Act would also ensure that this restrictive principle was applied in litigation before United States courts rather than relying on a foreign state having to make representations to the Department of State in this regard (Legislative History of the Foreign Sovereign Immunities Act of 1976: House Report (Judiciary Committee) No. 94 1487 (9 September 1976) [1976] US Code Congressional and Administrative News 6604, 6605, 6606.)

Writing in 1970 Professor O’Connell, International Law (2nd ed) commented:

The absolute or classical doctrine of sovereign immunity, according to which a sovereign is at all times entitled to arrest suit or resist execution, irrespective of the circumstances or the subject-matter, was almost universally adhered to in the nineteenth century, doubtless because lawyers and political scientists were obsessed with the notion that sovereignty is illimitable and indivisible. At the present time only English, and perhaps Russian, law reflects to any extent the traditional doctrine. The United States within the past twenty years has virtually rejected it, and there is some evidence that English courts will be tempted to follow in some cautious manner. It is clear from this practice that the absolute view is not sanctioned by international law. (vol. 2 at p. 844).

The learned professor’s prediction was duly fulfilled by the House of Lords in I Congresso [1983] 1 AC 244. Absolute immunity was abandoned; only restrictive immunity would now be recognised. In the course of his speech Lord Wilberforce reviewed all the English authorities as well as many United States cases and those of certain other countries, in particular, the then Federal Republic of Germany and Italy and at p. 267 he concluded as follows:

The conclusion which emerges is that in considering, under the ‘restrictive’ theory whether state immunity should be granted or not, the court must consider the whole context in which the claim against the state is made, with a view to deciding whether the relevant act(s) upon which the claim is based, should, in that context, be considered as fairly within an area of activity, trading or commercial, or otherwise of a private law character, in which the state has chosen to engage, or whether the relevant act(s) should be considered as having been done outside that area, and within the sphere of governmental or sovereign activity.

My conclusions on this aspect of the case are as follows:

1. I doubt if the doctrine of absolute sovereign immunity was ever conclusively established in our jurisdiction.

2. Assuming that it was, I believe that it is a doctrine that has now expired.

3. The doctrine flourished at a time when a sovereign state was concerned only with the conduct of its armed forces, foreign affairs and the operation of its currency. Now with so many states engaged in the business of trade, direct or indirect, the rule of absolute immunity is not appropriate to such conditions.

4. However, if the activity called in question truly touches the actual business or policy of the foreign government then immunity should still be accorded to such activity.

Mr Burke’s claim
Into which category does Mr Burke’s claim fall, public or private. The employment of a chauffeur at the Canadian embassy is clearly not a commercial contract in the ordinary sense of the word; it is a contract of service. Is it any different to having the heating system in the embassy repaired? (cf claim against the Empire of Iran (1963) 45 ILR 57.) I believe it is. I think once one approaches the embassy gates one must do so on an amber light. Prima facie anything to do with the embassy is within the public domain of the government in question. It may be that this presumption can be rebutted as happened in the Empire of Iran case. I believe that the element of trust and confidentiality that is reposed in the driver of an embassy car creates a bond with his employers that has the effect of involving him in the employing government’s public business organization and interests. Accordingly, I hold that the doctrine of restrictive state immunity applies to this case.

The procedural objection
Finally, a procedural point made by counsel on behalf of Mr Burke has to be considered. Mr McDowell SC submitted that the initial application for judicial review brought by the government of Canada was premature. This was because while the Employment Appeals Tribunal had made a ‘determination’ it required the Minister for Labour to institute proceedings in the Circuit Court to bring about redress. S. 10(1) of the Unfair Dismissals Act 1977 provides:

If an employer fails to carrry out in accordance with its terms a determination of the tribunal in relation to a claim for redress under this Act within six weeks from the date on which the determination is communicated to the parties the Minister [for Labour] may, if he thinks it appropriate, having regard to all the circumstances, to do so, institute and carry on proceedings in the Circuit Court in his name on behalf of the employee against the employer for redress under this Act.

It is clear that the rights of an employee under the Act require the Employment Appeals Tribunal (or the Circuit Court on appeal) to determine the following matters:

(i) whether or not the employee was unfairly dismissed and

(ii) the nature of the redress to which the employee is entitled in the event of the tribunal being satisfied that the dismissal was unfair.

This two part procedure is apparent from s. 7(1) of the Act which provides that where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following … the tribunal, or the Circuit Court, as the case may be, considers appropriate having regard to the circumstances — included in the items of redress is the payment of compensation.

Miss Irvine, for the government of Canada, submitted that it was clear from the wording of s. 10(1) of the Act that there is not to be any new ‘determination’ of the issue as to whether or not the employee was unfairly dismissed and that the only concern of the Circuit Court was to do with the ‘redress’ to which the employee has become entitled by virtue of the determination of the tribunal. Miss Irvine further submitted that in these circumstances the government of Canada had locus standi to institute judicial review proceedings and that the government did so at the appropriate time. Further, it would have been an embarrassment for the government of Canada to await until, perhaps, the Minister for Labour instituted proceedings and that it was far more appropriate to have the matter dealt with in the way that it was dealt with by way of judicial review proceedings at this particular time.

I agree with this submission. I believe that a foreign government is impleaded if, against its will, it is brought before a tribunal with the powers possessed by the Employment Appeals Tribunal as surely as if it were impleaded in a court.

In the circumstances, I would allow the appeal.

The State (Sumers Jennings) v. Furlong.

Davitt P. [1966] IR 183
High Court.

DAVITT P.:
24 Jan.

The only question for decision in this matter is whether Part III of the Extradition Act, 1965, is repugnant to Article 29, section 3, of the Constitution.
Part II of the Act deals with the surrender by this state of persons wanted for prosecution or punishment by another state with which this state has an extradition agreement, or by a state which, our Government is satisfied, will afford reciprocal facilities. Part III of the Act deals with the surrender by this state of persons in respect of whom warrants of arrest have been issued by judicial authorities in Northern Ireland, England and Wales, Scotland, the Isle of Man and the Channel Islands. Counsel for the prosecutor submits that a principle known as the principle of speciality is a generally recognised principle of international law in relation to extradition. Stated shortly and very generally, its purport is that any state requesting a person’s extradition is under a duty not to punish him for any offence other than that for which his extradition is requested. He pointed out that this principle is recognised in Part II of the Act and applied to cases coming within its provisions by s. 20; but that there is no such recognition and no such application in Part III in respect of cases coming within its provision. He relied upon sections 1 and 3 of Article 29 of the Constitution. Section 1 of that Article provides:”Ireland affirms its devotion to the ideal of peace and friendly co-operation amongst nations founded on international justice and morality.” Section 3 of that Article provides:”Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other States.” Counsel for the prosecutor submits that, by reason of its failure to recognise and apply the principle of speciality, Part III of the Act was repugnant to these provisions of the Constitution and therefore invalid.
The principle of speciality is stated in Article 14 of the European Convention on Extradition made between the governments of certain states which are members of the Council of Europe. We have been informed that the present parties to this Convention are Denmark, Germany, Italy, Norway, Sweden and Turkey. It appears that neither this state nor the United Kingdom is a party. Counsel for the prosecutor submits that the purport of Article 14 of the Convention is that a person shall not be extradited from one state to another unless each acknowledges itself bound by the principle that, subject to certain agreed exceptions, he shall not be proceeded against, sentenced or detained with a view to the carrying out of a sentence or detention order for any offence committed prior to his surrender other than that for which he was extradited; and that he shall not be for any other reason restricted in his personal freedom. For the purpose of this judgment only I will assume that the rule of speciality as stated in Article 14 of the Convention is a generally recognised principle of international law.
In addition to Article 29, sections 1 and 3, the following provisions of the Constitution appear to be relevant. Article 5 states:”Ireland is a sovereign, independent, democratic state.” Article 6 provides, by section 1, that “All powers of government, legislative, executive and judicial, derive, under God, from the people . . . .” and by section 2, that”These powers of government are exercisable only by or on the authority of the organs of State established by this Constitution.” Section 1, sub-s. 1, of Article 15 provides:”The National Parliament shall be called and known, and is in this Constitution generally referred to, as the Oireachtas”and section 2, sub-s. 1, of that Article provides:”The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.” Section 5, sub-s. 1, of Article 29 provides:”Every international agreement to which the State becomes a party shall be laid before Dáil Éireann” and section 6 of that Article provides:”No international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas.”
The principle of speciality had its origin, I think, in extradition treaties and international conventions. It is not the product of the growth of customary international law; it is the product of “international legislation.” The right to decide to what alleged offenders this state will or will not give asylum is, it seems to me, an adjunct of national sovereignty and independence and is properly the subject of domestic legislation. If we accept the submission that the rule of speciality has the effect of invalidating Part III of the Extradition Act, 1965, we will be accepting the principle that a legislative authority other than the Oireachtas has the power to nullifyin effect, to repealan enactment of the Oireachtas and in this respect to make laws for the State. We are being asked to bring the provisions of sections 1 and 3 of Article 29 of the Constitution into conflict with the other provisions to which I have referred and to hold that those sections must be given preference. We must if possible interpret the Constitution in such a way as to avoid any such conflict, and section 3 of Article 29 has in fact been so interpreted by the Supreme Court.
In In re Ó Laighléis (1) it was submitted by Mr. MacBride, on behalf of the prosecutor in that case, that detention under certain provisions of the Offences Against the State Act, 1939, was unlawful because those provisions were in conflict with certain terms of the Convention for the Protection of Human Rights and Fundamental Freedoms to which this state was a party. It was also submitted that they were in conflict with certain articles of the United Nations Declaration of Human Rights. It was argued that if any Act of the Legislature was in conflict with the provisions of the Convention or Declaration such provision should prevail; and that any breach by the Government of such an international convention was a breach of the provisions of Article 29 of the Constitution. It was not open to counsel in that case to submit that any provision of the Offences Against the State Act was unconstitutional. It had been, as a Bill, referred by the President to the Supreme Court under the provisions of Article 26 of the Constitution, and that Court had decided that the Bill was in no way repugnant to the Constitution. The Bill had been, accordingly, signed by the President and, having become law, could not, by reason of section 3, sub-s. 3, of Article 34, be again impugned. It is clear, I think, that had it been open to Mr. MacBride to challenge its validity he would have based his argument on precisely similar grounds. In giving the judgment of the Supreme Court in In re Ó Laighléis (1) Maguire C.J. said, at p. 124:”Clauses 1 and 3 of Article 29 of the Constitution clearly refer only to relations between states and confer no rights on individuals; they can in no way assist Mr. MacBride’s argument.” That interpretation of the sections of Article 29 relied on by the prosecutor avoids bringing them, in the context of the present case, into conflict with the other provisions of the Constitution.
Quite apart from these considerations, however, it seems to me that there cannot in reality be any such conflict. Part III of the Extradition Act, 1965, does not purport to deal with the conduct of this state towards the United Kingdom. It makes provision as to how certain authorities in this state will deal with certain persons in respect of whom warrants have been issued by judicial authorities in the United Kingdom. It provides for honouring and giving effect to these acts of judicial authorities in a neighbouring state. It cannot be in conflict with the provisions of sections 1 and 3 of Article 29.
There are certain other passages in the judgments inIn re Ó Laighléis (1) to which I should refer. In the judgment of the High Court the following passage occurs, at p. 103 of the report:”It is quite clear that the Convention, though the State be a party to it, cannot of itself in any way qualify or affect our domestic legislation. Where there is an irreconcilable conflict between a domestic statute and the principles of international law or the provisions of an international convention, the Courts administering the domestic law must give effect to the statute. . . . If this principle were not to be observed it would follow that the Executive Government by means of an international agreement might, in certain circumstances, be able to exercise powers of legislation contrary to the letter and the spirit of the Constitution.”In giving the judgment of the Supreme Court, Maguire C.J. said, at p. 124:”The insuperable obstacle to importing the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms into the domestic law of Irelandif they be at variance with that lawis, however, the terms of the Constitution of Ireland.” He then quotes section 2, sub-s. 1, of Article 15, and continues:”Moreover, Article 29, the Article dealing with international relations, provides at section 6 that ‘no international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas.'” Later, at p. 125, he says:”No argument can prevail against the express command of section 6 of Article 29 of the Constitution before judges whose declared duty it is to uphold the Constitution and the laws. The Court accordingly cannot accept the idea that the primacy of domestic legislation is displaced by the State becoming a party to the Convention for the Protection of Human Rights and Fundamental Freedoms.”
It is not contended here that the rule of speciality has become part of our domestic law; nor was it contended in Ó Laighléis’s Case (1) that either the Convention or the Declaration as to Human Rights had become part of our domestic law. It has not been contended that the rule has positive legislative effect. It has, in effect, been submitted that it has negative legislative effect. It seems to me that the same considerations apply in any event.
For the foregoing reasons, and having regard to the opinions stated in the judgments in In re Ó Laighléis (1),I am unable to accept the submissions of counsel for the prosecutor. In my opinion the cause shown must be allowed and the conditional order discharged.

TEEVAN J.:
I agree with the judgment of the President and have nothing to add.

HENCHY J.:
The prosecutor has been arrested and lodged in Mountjoy Prison in pursuance of powers conferred by Part III of the Extradition Act, 1965. He had been granted a conditional order of habeas corpus, the sole ground of which is set out in the order in the following terms:
“That Part III of the Extradition Act, 1965, is in conflict with Article 29 (3) of the Constitution in as much as the rule of speciality recognised in Part II of the Act and particularly applied by section 20 thereof was not referred to or included in Part III.”
Cause has been shown by both the Governor of Mountjoy Prison and the Attorney General, and the matter now comes before the Court on the prosecutor’s application to have the conditional order made absolute.
Counsel for the prosecutor has expanded and explained the ground on which he complains of unlawful detention as follows: he states that there is a generally recognised principle of international law called the rule of speciality, and he points to Article 14 of the European Convention on Extradition (which has not yet been signed on behalf of, or ratified by, this state) as a statement of the rule and as an example of the incorporation in a specific convention of what he says is a generally recognised principle of international law. That Article is in the following terms:
“1. A person who has been extradited shall not be proceeded against, sentenced or detained with a view to the carrying out of a sentence or detention order for any offence committed prior to his surrender other than that for which he was extradited, nor shall he be for any other reason restricted in his personal freedom, except in the following cases:
(a) when the Party which surrendered him consents. A request for consent shall be submitted, accompanied by the documents mentioned in Article 12 and a legal record of any statement made by the extradited person in respect of the offence concerned. Consent shall be given when the offence for which it is requested is itself subject to extradition in accordance with the provisions of this Convention;
(b) when that person, having had an opportunity to leave the territory of the Party to which he has been surrendered, has not done so within 45 days of his final discharge, or has returned to that territory after leaving it.
2. The requesting Party may, however, take any measures necessary to remove the person from its territory, or any measures necessary under its law, including proceedings by default, to prevent any legal effects of lapse of time.
3. When the description of the offence charged is altered in the course of proceedings, the extradited person shall only be proceeded against or sentenced in so far as the offence under its new description is shown by its constituent elements to be all offence which would allow extradition.”
Turning to Part II of the Extradition Act, 1965, which deals with extradition in pursuance of an international agreement or convention, counsel for the prosecutor points out that this part of the Act gives full force and effect to the rule of speciality. He instances sub-s. 1 of s. 20 which says that extradition shall not be granted unless provision is made by the law of the requesting country or by the extradition agreement for the operation of the rule of speciality, and s. 39 which requires that the rule be applied when a person is surrendered to this state. No complaint was therefore made about Part II of the Act, which in any case does not apply to the prosecutor. But Part III, which deals with the endorsement and execution of warrants emanating from Northern Ireland, England and Wales, Scotland, the Isle of Man and the Channel Islands, is impeached on the ground that it is silent as to the requirement in such cases (of which the present is one) of the operation of the rule of speciality, a generally recognised principle of international law, and that it is, therefore, unconstitutional as conflicting with section 3 of Article 29 of the Constitution, which provides that “Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other States.”
If this submission is correct, the prosecutor’s detention is unlawful and he is entitled to be released by an order ofhabeas corpus.
The foregoing, which is, I believe, a fair summary of the prosecutor’s case, rests on a foundation which I believe to be unsound. I am content to point to two main defects in the prosecutor’s case, each of which in my view completely vitiates his complaint.
First, section 3 of Article 29 of the Constitution was not enacted, and is not to be interpreted in these Courts, as a statement of the absolute restriction of the legislative powers of the State by the generally recognised principles of international law. As the Irish version makes clear, the section merely provides that Ireland accepts the generally recognised principles of international law as a guide (ina dtreoir) in its relations with other states. As the Supreme Court said inIn re Ó Laighléis (1), at page 124 of the report:”Clauses 1 and 3 of Article 29 of the Constitution clearly refer only to relations between states and confer no rights on individuals . . .” Section 3 of Article 29 gives no standing to the prosecutor to assert that Part III of the Extradition Act, 1965, is unconstitutional, and in fact, if the conflict or repugnancy alleged exists, it could not give rise to an unconstitutionality in the statute. Having regard to the statement in Article 6 of the Constitution that the legislative powers of the State derive, under God, from the people and the wording of section 3 of Article 29, I would respectfully adopt the dictum of Davitt P. in the Ó Laighléis Case (1) (at page 103):”Where there is an irreconcilable conflict between a domestic statute and the principles of international law or the provisions of an international convention, the Courts administering the domestic law must give effect to the statute.”
Secondly, even if the foregoing conclusions were incorrect and it were open to the prosecutor to assert an unconstitutionality on the grounds of a repugnancy between Part III of the Act and section 3 of Article 29 of the Constitution, he could not succeed unless he showed (a) that the rule of speciality on which he relies is a generally recognised principle of international law and (b) that Part III of the Act is clearly repugnant to it. Whether the rule or principle of speciality is one of international law or domestic law is a vexed question on which I do not find it necessary to express an opinion; the conflicting authorities on the matter are referred to in O’Connell’s International Law (1965), vol. 2, at pp. 804 and
805. But even if it be conceded that the rule of speciality is a generally recognised principle of international law, in none of the authorities that I have consulted do I find it expressed in more general terms than that the state to which a person has been extradited may not, without the consent of the requested state, try the person extradited save for the offence for which he was extradited. It is a rule that comes to be applied only after extradition has taken place, and even then it applies only to the state to which the person has been extradited. The prosecutor is erroneously seeking to show that the rule applies before extradition and that it binds the extraditing state. In the proceedings envisaged by Part III of the Act this state is always the extraditing state, and the rule of speciality could therefore apply only to the requesting statethe United Kingdom. What the prosecutor is seeking to assert is not the rule of speciality but a rule binding the extraditing state to ensure that the requesting state will observe the rule of speciality. In my view, this suggested rule is no part of the generally recognised principles of international law.
I too would allow the cause shown and discharge the conditional order

Minister for Justice, Equality and Law Reform v Puta

[2008] I.E.S.C. 29

JUDGMENT of the Court delivered the 6th day May, 2008 by Murray C.J.
Each of the appellants is the subject of a European Arrest Warrant: issued, in the case of the first appellant, by a judicial authority in the United Kingdom; in the cases of the second and third appellants a warrant, in each case, issued by a judicial authority in the Czech Republic. The High Court has made an order, pursuant to s. 16(1) of the European Arrest Warrant Act, 2003 (“the Act of 2003”), in each case, ordering the surrender of the appellant to a person duly authorised by the issuing state to receive him.

Each of the appellants commenced plenary proceedings in the High Court claiming a:
“Declaration that Council Framework Decision of 13th June 2002 was not properly ratified by the Oireachtas as required by the Constitution and/or that the European Arrest Warrant Act, 2003, as amended, which purports to reflect the Framework Decision is invalid and of no effect……”

The appellants claim that the Act of 2003 is repugnant to the Constitution. They contend that the Act was enacted without “the prior approval of both Houses of the Oireachtas,” as required by Article 29.4.6 of the Constitution. The High Court (Peart J) dismissed the claim in each case. The appellants now appeal.

The appellants are directly affected by orders made pursuant to the Act of 2003. They have the required standing to allege that the Act is invalid, by reason of having been enacted contrary to the provisions of the Constitution.

The people, by the Eighteenth Amendment to the Constitution, authorised the State to ratify the Treaty of Amsterdam of 1997. Article 29.4.5 of the Constitution, as so amended, provides:
“The State may ratify the Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts signed at Amsterdam on the 2nd day of October, 1997.”

Article 29.4.6 provides:
“The State may exercise the options or discretions provided by or under Articles 1.11, 2.5 and 2.15 of the Treaty referred to in subsection 5° of this section and the second and fourth Protocols set out in the said Treaty but any such exercise shall be subject to the prior approval of both Houses of the Óireachtas.”
For the purposes of the present appeal, only the “options or discretions” provided by Article 1.11 of the Amsterdam Treaty are relevant. Article 1.11 of that Treaty amended Title VI of the existing Treaty on European Union (the Maastricht Treaty) by replacing that Title in its entirety. Title VI of the Treaty on European Union (“TEU”) is headed: “Provisions on Police and Judicial Cooperation in Criminal Matters.” That Title, as set out in the Treaty of Amsterdam, is divided into Articles enumerated K.1 to K.14. Article K.6 of Title 6 has become Article 34 of the Treaty on European Union includes the power, inter alia, for the Council of the European Union to adopt framework decisions.

Article 34 TEU reads as follows:
1. In the areas referred to in this title, Member States shall inform and consult one another within the Council with a view to coordinating their action. To that end, they shall establish collaboration between the relevant departments of their administrations.

2. The Council shall take measures and promote cooperation, using the appropriate form and procedures as set out in this title, contributing to the pursuit of the objectives of the Union. To that end, acting unanimously on the initiative of any Member State or of the Commission, the Council may:

(a) adopt common positions defining the approach of the Union to a particular matter;

(b) adopt framework decisions for the purpose of approximation of the laws and regulations of the Member States. Framework decisions shall be binding upon the Member States as to the result to be achieved but shall leave to the national authorities the choice of form and methods. They shall not entail direct effect,

(c) adopt decisions for any other purpose consistent with the objectives of this title, excluding any approximation of the laws and regulations of the Member States. These decisions shall be binding and shall not entail direct effect; the Council, acting by a qualified majority, shall adopt measures necessary to implement those decisions at the level of the Union;

(d) establish conventions which it shall recommend to the Member States for adoption in accordance with their respective constitutional requirements. Member States shall begin the procedures applicable within a time limit to be set by the Council……..
In exercise of the power conferred by in Article 34(2)(b), the Council adopted Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA).

The Oireachtas enacted the Act of 2003 for the purpose, as its long title proclaims, of giving effect to the Framework Decision. Section 10 of the Act gives general effect to its provisions. It provides:
“Where a judicial authority in an issuing state duly issues a European arrest warrant in respect of a person—

(a) against whom that state intends to bring proceedings for the offence to which the European arrest warrant relates, or

(b) on whom a sentence of imprisonment or detention has been imposed and who fled from the issuing state before he or she—

(i) commenced serving that sentence, or

(ii) completed serving that sentence,

that person shall, subject to and in accordance with the provisions of this Act and the Framework Decision be arrested and surrendered to the issuing state.”
The Act of 2003, since it gave legal effect in the state to the provisions of the Framework Decision, necessarily had to have been enacted after the adoption of that measure. Article 29.4.6 of the Constitution required the prior approval of the Houses of the Oireachtas to the exercise by the State of any of the “options or discretions” provided for by Article 1.11 of the Amsterdam Treaty. Article 34 of the Treaty on European Union required a unanimous vote of the Council for the adoption of the Framework Decision. The government, exercising the executive power of the State within the Council, could not have participated in the adoption of the Framework Decision without the prior approval of both Houses of the Oireachtas.

On 11th December 2001, some seven months before the adoption of the Framework Decision, a proposal for the exercise of an option or discretion pursuant to Article 1.11 of the Amsterdam Treaty in the form of a draft Framework Decision was placed before the Houses. On 12th December 2001 the Minister for Justice, Equality and Law Reform proposed a resolution in Dáil Eireann in the following terms:
“That Dáil Eireann approves the exercise by the State of the option or discretion provided by Article 1.11 of the Treaty of Amsterdam to take part in the adoption of the following proposed measure: a proposal for a Council framework decision on the European arrest warrant and the surrender procedures between member states, a copy of which was laid before Dáil Eireann on 11th December.”
The front page of the document referred to in the resolution, a copy of which was laid before the Dáil, bore a date: Brussels, 10 December 2001. It was numbered COPEN 79 CATS 50. It was headed: “OUTCOME OF PROCEEDINGS, from: COUNCIL, on: 6/7 December 2001.” The subject was described as: “Proposal for a Council Framework Decision on the European arrest warrant and the surrender procedures between Member States.” That page, together with its corrected version (called “corrigendum”), indicated that on 6th December fourteen delegations (from Member States) had agreed to the draft Framework Decision as it stood in the Annex. There were then fifteen Member States. It also contained a number of indications of “parliamentary scrutiny reservations” from several Member States including Ireland. Ireland was also noted as having made a declaration concerning the Central Authority and the meaning of the words “executing judicial authorities.”

The document annexed to that page contained a draft of the proposed Framework Decision. A footnote stated that “the English and other versions will have to be revised in the light of the French version, as French was the original language of the Draft.”

The Dáil resolution was agreed without a vote. A corresponding resolution was passed by Seanad Eireann on the same evening.

The Appellants’ Submissions
The written submissions on behalf of the appellants criticise the “apparent haste with which the process” in the two Houses of the Oireachtas was conducted. Only one hour was allowed for debate. The Seanad motion was moved and passed late at night. A number of members of the Houses complained that inadequate time was being allowed for consideration of such an important measure. The Minister acknowledged the time pressures involved, stating:
Time pressures can mean that proposals will be brought to parliaments for approval when negotiations at EU level are either still in train or just barely concluded.

The result is that the Dáil and Seanad are being asked to debate texts the “latest version” of which only became available yesterday. It is likely to be the final shape of the decision.
Third Pillar business is progressing in a way that will require us to look afresh at how we conduct business efficiently and effectively at EU level while facilitating the necessary level of oversight and scrutiny by the Houses of the Óireachtas.
The Court has been informed of cogent criticisms by academic writers and others of the hastiness of the parliamentary procedure and the inadequate time permitted for parliamentary scrutiny. However, Dr Michael Forde, Senior Counsel for the appellants, as is recorded in the judgment of Peart J, made it clear that he “was not attacking or impugning what the Oireachtas did on the 12th December 2001.” Peart J noted:
“The plaintiff accepts that what happened on that occasion is beyond reproach, and that the resolution which was passed approving the proposal then presented to each House of the Oireachtas was one properly passed.”

Dr Forde also accepted at the hearing of the appeal that he cannot ask this Court to question the procedures of the Houses of the Oireachtas. He does not, therefore, seek to challenge the validity of the resolutions passed on 12th December.

This very clear concession renders irrelevant an argument advanced by the Minister that the resolutions passed by the Houses of the Oireachtas were not justiciable.

Dr Forde argued for a distinction between legislation adopted, over many years, pursuant to the Treaty Establishing the European Community and that adopted pursuant to the Treaty on European Union. The former treaty predominantly concerned commercial matters. No prior legislative approval is required for State participation in the institutional machinery of the Communities. Regulations or, subject to certain conditions, directives may have direct effect in Irish law. The Treaty on European Union, on the other hand implicates the core of national sovereignty, extending, as it does, to the field of criminal justice. Before the State can participate within the Council of the European Union in the adoption of Framework Decisions, there must be compliance with Article 29.4.6. The purpose of that provision, Dr Forde argued, is to confer upon the adopted measures the immunity from constitutional challenge provided by Article 29.4.10.

Dr Forde referred to discrepancies or differences between the proposed or draft measure which the Houses approved on 12th December and the Framework Decision as adopted in June 2002 and given legislative effect by the Act of 2003. He says that the differences between the draft and the final version of the Framework Decision were so substantial that the Houses could not be said to have given their “prior approval” as required by Article 29.4.6 of the Constitution.

Dr Forde argued, in the alternative, for two approaches to evaluation of these differences. The first is to say that “prior approval” must be given by both Houses for the precise version ultimately adopted. It is not sufficient to approve an earlier draft. He submitted, as he had in the High Court, that nothing short of prior approval for the final text would satisfy the constitutional requirement. Even the slightest change would, consequently, signify that Article 29.4.6 had not been complied with. That provision did not permit the Houses of the Oireachtas to confer a broad mandate on the executive to negotiate in Council. The second approach is that the Framework Decision as adopted departed to a very significant extent from the draft version approved by the Houses.

It is common case that the draft proposal for a Framework Decision placed before the Houses on 12th December 2001 differed from that which was adopted unanimously by the Council on 13th June 2002. The document presented on 11th December had been described both as a proposal and as a draft. Since it is not in issue that the documents are different, it is appropriate to highlight the most significant divergences mentioned by Dr Forde. There are three.

There are two differences in the list of offences set out in Article 2 of the Framework Decision, which dispenses with the requirement of double criminality:

· “Trafficking in stolen vehicles” in the final version replaces “motor vehicle crime” in the draft.
· “Counterfeiting of currency”, in the draft, included only “the euro” but extends in the Framework Decision, as adopted, to any currency.
The Framework Decision is expressly stated to extend to Gibraltar, whereas the draft contains no mention of Gibraltar. Dr Forde submitted that, if it were permissible, by amendment to extend the scope of the Framework Decision to include Gibraltar, it would have been possible to extend it to cover any country in the world.

The appellants submit that the consequence of non-compliance with Article 29.4.6 is that the Act of 2003 is repugnant to the Constitution.

The Minister submits that there is no doubt that the Houses of the Oireachtas approved the State’s participation in the adoption of the Framework Decision, prior to its adoption and that it is the quality, and not the fact, of that approval that the appellant seeks to impugn. Whereas the Constitution required the Houses of the Oireachtas to approve the exercise by the State of an option or a discretion provided by or under, in the instant case, Article 1.11 of the Treaty of Amsterdam, it does not require the Houses to approve any text, document or proposal, but rather to approve the exercise by the State of an option or a discretion. The strict reading contended for by Dr Forde would involve reading words into the constitutional text that are not there. What is approved in advance will not necessarily be the finished product and it is always possible that something approved in advance may mutate before it is definitively approved. The Constitution permits the Houses to confer a broad mandate upon the State in this context, though the Minister does not contend that it has done so in this case.

The Minister contrasts Article 29.5.1 of the Constitution with the Article at present under scrutiny. The former provision requires that the actual text of “every international agreement to which the State becomes a party shall be laid before Dáil Eireann.”
The Minister says that Article 29.4.6 vests exclusive power in the Houses of the Oireachtas to approve the exercise of the options or discretions mentioned. In his written submissions he cites the judgment of this Court delivered by Murray C.J. in Curtin v Dáil Eireann [2006] 2 IR 556 for the purpose of drawing an analogy with the case of Article 35.4.1 of the Constitution concerning the removal of a judge from office.

The Minister relied on Curtin v Dáil Eireann and on the judgment of Murray J., as he then was in T.D. v Minister for Education [2002] 4 I.R. 259 at 337, for the proposition that, unless it was shown that there had been “clear disregard” by the legislative branch of government of its constitutional obligations in the exercise of a power, which the Constitution of Ireland exclusively confers upon it, the issue as to how the Houses of the Oireachtas reached their determination or the evaluation of the material they had before them when they did so is a matter reserved exclusively to them.

When the matter of the Framework Decision came back before the Oireachtas in the form of the bill which became the Act of 2003, it is evident that the Oireachtas accepted that the mandate it had conferred on the executive had been properly executed. If it had been otherwise, the Oireachtas could have refused to enact the legislation.

The Houses of the Oireachtas, in allowing the State, i.e., the executive arm of government to exercise the option provided for by Article 1.11 of the Treaty of Amsterdam, were not required to approve any particular text. The objective evidence of what was before the Houses of the Oireachtas discloses that it consisted of a proposed, not a final, Framework Decision, expressly stated to being subject to parliamentary scrutiny reservations by a number of Member States, including Ireland. The Houses assented to the exercise of the option or discretion in the full knowledge that they were not approving the definitive text of the Framework Decision. Mr Anthony Collins, Senior Counsel accepted on behalf of the Minister that the result could have been different if the Houses had given approval to what purported to be a final version of the Framework Decision.

The Minister strongly supports the following passage from the judgment of Peart J in the High Court:
“When one comes to the passing of the Act on the 28th December 2003 giving effect to the Framework Decision, the position is clear. On that occasion the members of the Oireachtas had the option to express any concerns which they might have had that the Framework Decision which they were being asked to give effect to by the passing of the proposed legislation was not one that had received their prior approval before it was adopted on the 13th June 2002. I have been provided with no evidence of what happened in the Oireachtas on the 28th December 2003, and in the absence of some evidence of a clear disregard for its constitutional obligations, this Court must and will assume that the Act passed is a constitutional Act and that any majority of members who voted for the legislation to be passed were satisfied and entitled to be satisfied that what they were giving effect to was substantially the same instrument which had been voted upon on the 12th December 2001. It is not for this Court to examine in minute detail, or indeed at all, any textual or indeed other differences between one text and another. This Court must assume that the Oireachtas was satisfied that the resolution which was passed by each House on the 12th December 2001 was the constitutionally mandated prior approval for the exercise of the option or discretion which was the Framework Decision being given effect to on the 28th December 2003.”

The Minister submitted that the variations between the draft approved by the Houses and the final version were neither substantive nor material. In particular, no material or substantive differences had been identified in respect of: the title and objectives pursued, the scope of the arrest warrant, the grounds upon which a State may decline to execute an arrest warrant, the time limits for execution and surrender, the rights of a person whose surrender is sought, the rules governing specialty and onward transmission of a surrendered person to a third State. In substance, the Minister submits, that, although parliamentary scrutiny reservations were made by a number of Member States and the draft still had to be submitted to the European Parliament for consultation, the documents before the Houses were in substance the same as the Framework Decision ultimately adopted.

The legal and Constitutional Issues
Article 29 is the article of the Constitution which governs generally the activity of the State in its international relations. The government is the organ of State charged with the exercise of that function. Article 29.4.1 provides:
“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 29, as successively amended on five occasions, has authorised the State to ratify the treaties adopted since Ireland’s accession in 1973 to the European Economic Community, as it then was. The Eighteenth Amendment of the Constitution, authorising ratification of the Amsterdam Treaty, constituted an innovation. Acting on foot of the first three amendments to the Constitution, the Government participated, without prior parliamentary control, in the activities of the European Communities and the European Union. Since the ratification of the Amsterdam Treaty of 1997 and Treaty of Nice of 2001, the Constitution mandates prior parliamentary approval for the exercise by the State of certain powers contained in those two treaties, described by the Constitution, in each case, as “options or discretions.”

The Houses of the Oireachtas, by means of prior approval, thus control the exercise by the Government of the executive power it exercises as a participant in the activity of the European Union as a polity via the Council of Ministers and in its relations with the governments of other Member States. A measure of parliamentary and, hence, democratic control of the exercise of State power is thus assured. This objective is consonant with developing ideas and concerns about the need to remedy a democratic deficit in the European institutions.

The exercise of that control in practice implicates relationships between political action, firstly, at the level of the Union, i.e. in the Council, and, secondly, at national level, i.e. in the two houses of the National Parliament established under Article 15 of the Constitution. The present case also raises, in a particularly direct way, the question of the appropriate level of judicial intervention in or scrutiny of those parliamentary procedures.

It is appropriate, in the first instance, to address the meaning of Article 29.4.6 of the Constitution, then to examine the relationship of that provision with relevant articles of the Treaty on European Union and, finally, to consider the appropriate level of judicial review or control of parliamentary action.

Article 29.4.6 requires prior approval for the exercise of the prescribed “options or discretions.” Two questions then arise. The first is the meaning of the expression “options or discretions.” The second concerns the level of detail or precision of the advance approval required. The latter is the matter which has been most debated in the present case.

As the Minister has argued, it is necessary to consider, in context, the relevant terms of Title VI of the Treaty on European Union as amended by the Amsterdam Treaty. Neither the expression, “options nor discretions” nor either of its constituent words, in the singular or the plural, occurs in the text of Title VI. It is clear that the expression cannot refer to the general statement of objectives of the Union (Article 29) or to the general statements of what common action is to include (Articles 30 and 31). Article 34(1) provides:
“In the areas referred to in this Title, Member States shall inform and consult one another within the Council with a view to coordinating their action. To that end, they shall establish collaboration between the relevant departments of their administrations.”
That provision clearly does not create any option or discretion. It imposes an obligation. On the other hand, each of the types of action which the Council is empowered to take, acting unanimously, and which are listed in Article 34(2) from (a) to (d) is preceded by the word, “may,” indicating discretion. That list includes the discretionary power of the Council to adopt framework decisions. Participation by the State in the adoption of the Framework Decision constituted the exercise by it of an option or discretion and was the reason that the Minister rightly considered it necessary to move the resolutions of the Dáil and Seanad which were passed on 12th December 2001.

Next, it must be considered whether the Houses of the Oireachtas were, as a matter of strict principle, required to give prior approval of the exact text of the measure which was ultimately adopted. The Houses gave prior approval for the exercise of an option or discretion. The option or discretion as expressed in Article 34(2)(b) of Title VI is conferred on the Council acting unanimously. Thus, the resolutions approved in advance the State’s participation, with other Member States in Council, in the adoption of the Framework Decision. That participation must be regarded as a process, to which it is intrinsic and inevitable that texts originally proposed will, through discussion and negotiation, undergo change and amendment. Change of texts is inherent in the process of lawmaking. The Houses of the Oireachtas are composed of parliamentary representatives of the people and will have been assumed by the framers of the constitutional amendment to be conscious of that fact of political life. As the Minister has pointed out, the constitutional text does not mention any particular text. Article 29.4.6 does not require prior approval of the exact text adopted.

It follows that the first submission made on behalf of the appellants fails.

That does not, however, conclude the matter. Compliance with the requirements of Article 29.4.6 represents an important constitutional check on the exercise of State power. As the Court has already emphasised, it introduces a measure of parliamentary control over the actions of the executive, which cannot, therefore, be ignored.

The Court is satisfied, in particular, that the participation by the executive arm of the State in the adoption by the Council of a framework decision or other measure mentioned in Article 34(2) of Title VI without complying with its provisions would represent defiance of a mandatory constitutional requirement. Any act of the Oireachtas enacted for the purpose of implementing the measure would constitute an attempt to validate unconstitutional action by the executive. For that reason, any such enactment would be repugnant to the Constitution and invalid. The same result would appear to follow if the prior parliamentary approval were expressly and strictly limited to the adoption of a specified text.

Nonetheless, Article 29.4.6 constitutes a parliamentary and, in practice political, and not a legal control over government action. It is for the members of the Houses of the Oireachtas to decide on the degree of authority they wish to confer on the executive to participate in the adoption of measures pursuant to Title VI. It is they also who must judge retrospectively whether their mandate has been observed, when called on to enact implementing legislation. They should be permitted to judge whether the measure adopted comes within the scope of the prior approval. That will be a matter of degree.

In the present case, the Houses of the Oireachtas had before them on 11th and 12th December 2001 a document describing itself as a draft Framework Decision and as a Proposal for a Council Framework Decision.

A significant number of small changes of a drafting type were made before the final version was adopted. None of these, as the Minister has submitted, affected the essential scheme of the proposal. There are no significant alterations to the objectives pursued, the scope of the arrest warrant, the grounds upon which a State may decline to execute an arrest warrant, the time limits for execution and surrender, the rights of a person whose surrender is sought, the rules governing specialty and onward transmission of a surrendered person to a third State.

Three particular changes have been highlighted by the appellants. The list of offences concerned with counterfeiting was extended to cover all currency, not simply the Euro. The item listed in Article 2 as “trafficking in stolen vehicles” was originally described as “motor vehicle crime.” Taking the offence of counterfeiting, the effect of the change is that counterfeiting currencies other than the Euro is not to include in the Framework Decision an offence which would not otherwise be covered, but to dispense from the requirement of double criminality. Under Article 1.1, any offence is covered which is punishable by at least twelve months imprisonment and comes within the scope of the Framework Decision. Article 1.4 permits Member States to require double criminality to be established, except in the case of those offences listed in Article 2.2.

Gibraltar, not having been mentioned in the draft, Article 33(2) provided that the Framework Decision was to “apply to Gibraltar.” Article 299 of the Treaty establishing the European Community provides that the Treaty applies to “the European territories for whose external relations a Member State is responsible.” In Case C-298/81 Gibraltar v Council [1993] ECR I-3605, Advocate General Lenz, interpreting that provision (previously numbered 227(4)) expressed the view that in “Community law,……Gibraltar is regarded as a European territory………for whose external relations a Member State (in this case, the United Kingdom) is responsible.” The Court did not deal with that point. The Treaty on European Union contains no provision corresponding to Article 299EC. Thus, whether that Treaty applies to Gibraltar is, at best, obscure.

The Court considers that, in the first instance, it is a matter for the Oireachtas, when called upon to enact implementing legislation, to evaluate any differences between the authority conferred by a resolution granting prior approval pursuant to Article 29.4.6 and the measure in whose adoption the State has participated pursuant to Article 34 TEU. The Houses of the Oireachtas constitute the National Parliament established under Article 15 of the Constitution. Article 29.4.6 confers on them exclusively the function of deciding whether to approve in advance the participation by the State in the adoption of specified European Union acts. Equally, it is in those Houses, together with the President, that resides the “sole and exclusive power of making laws for the State.”

In Curtin v Dáil Eireann, cited above, this Court noted at page 627 that “the Houses of the Oireachtas have the exclusive power to consider the passing of resolutions for the removal of a judge from office,” pursuant to Article 35.4.1 of the Constitution. The Court considered a number of authorities establishing the presumption of constitutionality accorded to legislation generally (Pigs Marketing Board v. Donnelly (Dublin) Ltd. [1939] I.R. 413; Buckley and others (Sinn Féin) v. Attorney General and Another [1950] I.R. 67; McDonald v. Bord na gCon [1965] I.R. 217 at p. 239; East Donegal Co-Operative Livestock Mart Ltd v. Attorney General [1970] I.R. 317); and resolutions of both Houses of the Oireachtas ( Goodman International Ltd. v. Mr. Justice Hamilton [1992] 2 I.R. 542). The Court concluded that “the courts must, in accordance with the principle of the separation of powers, exercise a significant level of judicial restraint when considering the exercise of that power.”

The Court addressed, at page 627, the need to “identify a standard by which the court can measure whether a designated organ of government is falling or is likely to fall short of its constitutional obligations.” The Court cited the judgment of Murray J., as he then was, in T.D. v Minister for Education [2001] 4 IR 259 at p. 337:
“I have already made the distinction between ‘interfering’ in the actions of other organs of State in order to ensure compliance with the Constitution and taking over their core functions so that they are exercised by the courts. For example, a mandatory order directing the executive to fulfill a legal obligation (without specifying the means or policy to be used in fulfilling the obligation) in lieu of a declaratory order as to the nature of its obligations could only be granted, if at all, in exceptional circumstances where an organ or agency of the State had disregarded its constitutional obligations in an exemplary fashion. In my view the phrase ‘clear disregard’ can only be understood to mean a conscious and deliberate decision by the organ of state to act in breach of its constitutional obligation to other parties, accompanied by bad faith or recklessness.”

The Court, in Curtin, proceeded to apply the standard of “clear disregard” to the resolutions of the Houses of the Oireachtas proposing the removal of a judge from office in the following passage:
“The standard of “clear disregard” was used, in that case, in the somewhat different context of an order directed to the government to make provision for certain disadvantaged children. The legal basis for the adoption of this standard was, however, the fact that the matters at issue fell primarily within the executive province of government. The standard should also be applied, in the opinion of the court to the performance of the exceptional and sensitive function constitutionally assigned to one organ of government, the legislature, of removing of judges from office. It accords with the presumption of constitutionality.”
In the particular case, the plaintiff complained that the impugned resolutions proposed the establishment of a joint committee of the Houses of the Oireachtas with powers of investigation. The Court ruled as follows:
“Ultimately, this court could conclude that this provision was beyond the power of the Houses only if it was clear that it would be, recalling the dictum of Murray J., cited above, in “clear disregard” of the right of the applicant to the benefits of basic fairness of procedures and constitutional justice.”
Although the Curtin case was concerned with a quite different and very special power conferred exclusively on the Houses of the Oireachtas, the Court considers that the standard required to merit judicial intervention in parliamentary procedures, which it there laid down should be applied to the matters before the Court in the present case.

The Act of 2003 benefits, in any event, from the normal presumption of constitutionality. The resolutions of the Houses passed on 12th December 2001 benefit from the same presumption. It is the combined effect of the two actions which is at issue in the present case: in essence the implicit decision of the Oireachtas, at the time of enactment of the legislation, that it was satisfied that the terms of the Framework Decision fell within the scope of the prior approval comprised in the resolutions.

It follows from the fact that the resolutions of 12th December approved a draft proposal for a Framework Decision that the Houses approved any reasonable and usual drafting changes, amendments to improve and clarify the document. The question is whether the three changes mentioned constituted such significant departure from the approved text as to warrant the conclusion that the constitutionally necessary prior approval had not been given. The matter should be judged from the perspective of parliamentary bodies exercising parliamentary judgment and not from the point of view of hypothetical individuals who may be more or less affected by the enacted measure than they would have been in the terms of the draft. Looked at from that point of view, neither the change from “trafficking in stolen vehicles” to “motor vehicle crime” nor the inclusion of offences, which would have been covered by the Framework Decision in any event, in the list of offences for which Article 2.2 dispenses with the requirement of double criminality is, in the view of the Court, significant. The express application of the Framework Decision to Gibraltar, a territory for whose external relations, one Member State is responsible could not, in the view of the Court be regarded as an important change. It is patently wrong to suggest that acceptance of the inclusion of Gibraltar would imply the possibility of extension to countries throughout the wprld. The “area of freedom, security and justice” described in Article 29 is obviously confined to the Member States of the Union. Part of the legal basis for the adoption of the Framework Decision is Article 31(1)(b) which envisages “facilitating extradition between Member States.” In none of these cases could it be said that the Oireachtas or the Houses of the Oireachtas acted in clear disregard to Article 29.4.6 of the Constitution.

For these reasons, the Court is satisfied that the challenge to the constitutionality of the European Arrest Warrant Act 2003 is not well founded. The Court will order that the appeal be dismissed.