Extent of the State
Cases
In the Matter of Article 26 of the Constitution
In the Matter of the Criminal Law (Jurisdiction) Bill 1975
Supreme Court
6 May 1976
[1976] 109 I.L.T.R 69
O’Higgins C.J., Griffin, Kenny, Parke JJ., Finlay P.
April 27, 28, 29, 30 and May 6, 1976
The Judgment of the Court
This is a reference to this Court by the President made on 10th March, 1976, under Art. 26 of the Constitution of the entire of the Criminal Law (Jurisdiction) Bill 1975 (“the Bill”). The Bill, which contains 22 sections and a Schedule, has the title “An Act to extend the Criminal Law of the State to certain acts done in Northern Ireland, to provide for the admission of evidence obtained by the examination of witnesses in Northern Ireland at trials for offences in respect of those acts, to enable evidence to be obtained by the examination of witnesses in the State for trials in Northern Ireland for corresponding acts done in the Sate, to reform the criminal law in other respects and to provide for related matters.” Counsel have been assigned to argue that the Bill is repugnant to the Constitution and have contended that sections 2, 3 and 11 of it are. These are the heart of the Bill.
Part of the background to the Bill is the intercommunal violence and killing in Northern Ireland which has had the result that some of those who have committed appalling crimes in Northern Ireland have come to and now reside in this State. Another part of the background is that although there is an Extradition Act in force in the Republic of Ireland, international obligations required the Oireachtas to insert in that Act a provision that when the High Court was of opinion that the offence to which the warrant of arrest related was a political offence or an offence connected with a political offence, it was bound to order the release of the person to whom the warrant related (section 50 of the Extradition Act 1965) so that the person could not be extradited for trial in Northern Ireland or Britain (Bourke v. The Attorney General [1972] I.R. 36).
Section 2 of the Bill provides that when a person does in Northern Ireland an act which if done in the State would constitute an offence specified in the Schedule to the Bill, he shall be guilty of an offence and shall be liable on conviction on indictment to the penalty to which he would have been liable if he had done the act in the State. The Schedule to the Bill includes murder, manslaughter, arson, kidnapping, false imprisonment, malicious damage, robbery, and offences in connection with explosives, firearms and the unlawful seizure of aircraft and vehicles. All the offences in the Schedule are the type which subversive and terrorist organisations commit all over the world in the course of their campaigns. Section 2 goes on to provide that where a person in the State or Northern Ireland aids, abets, counsels or procures the commission of such an offence or in Northern Ireland aids, abets, counsels or procures the commission of an offence specified in the Schedule, he shall be guilty of and may be indicted, tried and punished for the offence. It also provides that any person who in the State or Northern Ireland attempts, conspires or incites another person to commit such an offence shall be guilty of an offence and shall be liable on conviction on indictment to be punished as if he had committed the offence itself.
Section 3 of the Bill provides that a person, who in Northern Ireland is charged with or convicted of an offence in Northern Ireland consisting of acts whether done in the State or in Northern Ireland which constitute an offence specified in the Bill and who escapes from lawful custody in Northern Ireland, shall be guilty of an offence and liable to be punished on conviction on indictment.
While the Rules of Court provide for the taking of evidence on commission in civil actions, this is not now possible in criminal trials. Section 11 makes provision for this in connection with trials in the Special Criminal Court established under Art. 38.3.1º of the Constitution and so is a considerable change in our criminal law. So many matters in this section have been relied on by counsel assigned to argue that the Bill is repugnant to the Constitution (“the opponents”) that it is essential to set out the section as it was passed by both Houses of the Oireachtas.
“11—
(1) For the purpose of the trial by a special court established under Article 38.3.1º of the Constitution of an offence under section 2 or 3 or of any appeal in relation to the trial, the court of trial shall at the request of the prosecution or the accused unless it is satisfied that it is not in the interests of justice to do so, and may of its own motion, and any appellate court may at such a request or of its own motion, by order provide for the issue of a letter of request to the Lord Chief Justice of Northern Ireland, for the taking, in the presence of the members of the court making the order, of evidence in Northern Ireland by a judge of the High Court of Justice in Northern Ireland from a witness specified in the order.
(2) Where a court makes an order under this section, it shall inform the accused that—
(a) he has a right to be present in the custody of the police of Northern Ireland at the taking of the evidence referred to in the order and if he exercises the right he will be delivered in custody into the custody of police of Northern Ireland.
(b) whether or not he is present at the taking of the evidence, he has a right to be represented by the counsel and solicitor (or the solicitor only) representing him in the court or by another counsel and solicitor (or by a solicitor only) entitled to practice in the State or entitled to practice in Northern Ireland.
(c) he may, if not represented by counsel or a solicitor, himself question the witness giving the evidence.
(d) while he is in custody in Northern Ireland for the purpose of the taking of the evidence, he will be immune from detention, and any kind of suit or legal process, in respect of any cause or matter, civil or criminal, arising before his arrival in Northern Ireland for the purpose aforesaid. 3
and, if the accused indicates to the court that he wishes to be present at the taking of the evidence, the court shall make an order directing that the accused be delivered when and so often as may be necessary into the custody of the police of Northern Ireland.
(3)
(a) A statement of evidence of a witness taken in compliance with a letter of request under this section, and certified by the judge of the High Court of Justice in Northern Ireland who took it to be a true and accurate statement of the evidence so taken, shall, if all the members of the court were present throughout the taking of the evidence, be admissible at the trial or appeal concerned as evidence of any fact stated therein of which evidence would be admissible at the trial or appeal.
(b) A document purporting to be a certificate of a judge of the High Court of Justice in Northern Ireland and to be signed by him shall be deemed, for the purposes of this section, to be such a certificate and to be so signed unless the contrary is shown.
(4) A person in whose case an order is made under subsection (2)—
( a ) shall be brought when and so often as may be necessary by the Garda Síochána to some convenient point of departure from the State and there delivered into the custody of the police of Northern Ireland and, if he is on bail, shall be taken into the custody of the Garda Síochána not more than 24 hours before the time of any such delivery and kept in such custody until that delivery is effected, and ( b ) shall, on his return to the State upon the conclusion or any adjournment of the taking of the evidence to which the order relates, be taken into the custody of the Garda Síochána, and—
(i) if he is required pursuant to an order of any court to be kept in custody, be returned as soon as may be to that custody, and
(ii) if he is on bail, be thereupon released.
(5) An order under subsection (2) shall not operate to interrupt the currency of any sentence imposed in any other proceedings.”
I
In considering this Bill, which has been passed by both Houses of the Oireachtas, the elected representatives of the people, the Court accepts the principles laid down by the former Supreme Court in In Re Article 26 of the Constitution and the Offences against the State (Amendment) Bill 1940, 74 I.L.T.R. 61; [1940] I.R. 470, that “where any particular law is not expressly prohibited and it is sought to establish that it is repugnant to the Constitution by reason of some implied prohibition or repugnancy we are of opinion, as a matter of construction, that such repugnancy must be clearly established”— per Sullivan C.J. at page 478. This principle was accepted by the former Supreme Court in In Re Article 26 of the Constitution and the School Attendance Bill 1942, 77 I.L.T.R. 96; [1943] I.R. 334 per Sullivan C.J. at page 344, and in In Re Article 26 of the Constitution and Electoral (Amendment) Bill 1961, [1961] I.R. 169, per Maguire C.J. at page 178. It was submitted by the opponents that the same considerations should not be applied to a Bill referred by the President under Art. 26 as are applied in the case of an Act which has been duly passed by both Houses of the Oireachtas and signed and promulgated by the President because the President has referred the Bill after consultation with the Council of State and because a question has been raised in relation to the constitutionality of such a Bill or some provision thereof. The Court does not accept that any distinction should be drawn in relation to the presumption of constitutionality between an Act of the Oireachtas and a Bill referred by the President under Art. 26.
II
The first argument advanced by the opponents was that the Bill is repugnant to the Constitution because Articles 2 and 3 of the Constitution constitute a prohibition on the Oireachtas legislating in relation to matters occurring in Northern Ireland whether it is done with territorial or extra-territorial effect. They submitted that pending he re-integration of the national territory the Oireachtas was debarred from passing legislation which had extra-territorial effect in Northern Ireland. Articles 1, 2 and 3 of the Constitution are headed “THE NATION” and read: 4
“THE NATION
“Article 1.
“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.
“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.”
These three Articles are followed by eight Articles with the heading “THE STATE” and include Art. 10 the first of which reads:
“Article 10.
“1. All natural resources, including the air and all forms of potential energy, within the jurisdiction of the Parliament and Government established by this Constitution and all royalties and franchises within that jurisdiction belong to the State subject to all estates and interests therein for the time being lawfully vested in any person or body.”
Articles 2 and 3 can be understood only if their background of law and political theory is appreciated. Before 1920 the Imperial Parliament at Westminster claimed the sole legislative power over the whole of Ireland. The Government of Ireland Act, 1920, made provision (section 1 sub-section (2)) for a Parliament of Northern Ireland with limited legislative jurisdiction over “the parliamentary counties of Antrim, Armagh, Down, Fermanagh, Londonderry and Tyrone and the parliamentary borough of Belfast and Londonderry” and a Parliament of Southern Ireland with limited legislative jurisdiction over the remaining part of the island of Ireland. Articles 11 and 12 of the Articles of Agreement for a Treaty between Great Britain and Ireland (which was signed on 6th December, 1921), were given the force of law in the area, now known as the Republic of Ireland, by the Constitution of the Irish Free State (Saorstát Éireann) Act, 1922. This Act was passed by Dáil Éireann as a Constituent Assembly on 25th October, 1922, and provided, so far as it is relevant to the issues now under discussion,:
“11. Until the expiration of one month from the passing of the Act of Parliament for the ratification of this instrument, the powers of the Parliament and the Government of the Irish Free State shall not be exercisable as respects Northern Ireland and the provisions of the Government of Ireland Act, 1920, shall, so far as they relate to Northern Ireland, remain of full force and effect … .
“12. If before the expiration of the said month an address is presented to His Majesty by both Houses of the Parliament of Northern Ireland to that effect, the powers of the Parliament and Government of the Irish Free State shall no longer extend to Northern Ireland and the provisions of the Government of Ireland Act, 1920, (including those relating to the Council of Ireland) shall, so far as they relate to Northern Ireland, continue to be of full force and effect and this instrument shall have effect subject to the necessary modifications.”
These Articles of Agreement were ratified by the Imperial Parliament on 31st March, 1922. The Constitution of 1922 was enacted by Dáil Éireann on 25th October, 1922. Art. 83 of it read:
“83. The passing and adoption of this Constitution by the Constituent Assembly and the British Parliament shall be announced as soon as may be and not later than the 6th day of December, 1922, by Proclamation of His Majesty, and this Constitution shall come into operation on the issue of such Proclamation.”
The Constitution of 1922 was ratified by an Act of the Imperial Parliament on 5th December, 1922, and on 6th December, 1922, the Proclamation referred to in Art. 83 was issued. On 7th December, 1922, the Parliament of Northern Ireland presented an address under Art. 12 of the Articles of 5 Agreement of 1921. The result was that the powers of the Parliament and Government of the Irish Free State no longer extended to Northern Ireland and the provisions of the Government of Ireland Act, 1920, in so far as they related to Northern Ireland, continued to be of full force and effect.
The Constitution of 1922 derived its authority not from the Act of the Imperial Parliament passed on 5th December, 1922, or from the Proclamation made on 6th December, 1922, but from the Act of Dáil Éireann sitting as a Constituent Assembly passed on 25th October, 1922, (see the decision of the former Supreme Court in The State (Ryan and Others) v. Lennon & Ors. 69 I.L.T.R. 125; I.R. 170 and in particular the judgment of Chief Justice Kennedy at page 203 and that of Mr. Justice Fitzgibbon at page 225).
The Articles of Agreement of 1921 were amended by an Agreement made on 3rd December, 1925, between the British Government and the Governments of the Irish Free State and of Northern Ireland which was confirmed by the Treaty (Confirmation of Amending Agreement) Act 1925. The effect of this was that the Irish Free State recognised and confirmed that “the extent of Northern Ireland for the purposes of the Government of Ireland Act, 1920, and of the said Articles of Agreement shall be such as was fixed by sub-section 2 of s. 1 of that Act”.
It was contended by the opponents that the Constitution is a legal document and must be read and construed having regard to this. If this means that the Court cannot have regard to the legislation in force at the date of the Constitution or to the historical background against which it was enacted in order to determine its meaning, the proposition is incorrect. The correct meaning of any constitutional document may be ascertained by construing it with regard to the historical circumstances in which it came into existence. It is true that the Constitution is a legal document but it is a fundamental one which establishes the State and it expresses not only legal norms but basic doctrines of political and social theory. “Ireland is a sovereign, independent, democratic State” (Art. 5) is a statement of political belief and of law. The Directive Principles of Social Policy in Art. 45 are to be followed by the Oireachtas and their application is not cognisable by any court. These Articles show 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.
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 claims to unity exists not in the legal but in the political order and is one of the rights which are envisaged in Art. 2 and is expressly saved by Art. 3. Art. 3 states the area to which the laws enacted by the Parliament established by the Constitution apply.
The effect of Art. 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 Saorstát Éireann had. The area to which the laws of Saorstát Éireann applied was, having regard to the Articles of Agreement of 1921 and the Act of 1925, unquestionably the area now known as the Republic of Ireland. The laws enacted by the Parliament established by the Constitution were to have the same extra-territorial effect as the laws of Saorstát Éireann. This analysis of Art. 3 gets considerable support from Article 10 for it states that all natural resources “within the jurisdiction of the Parliament and Government established by this Constitution” belong to the State and there is a clear distinction drawn by the Constitution itself between the Nation and the State. If the saver contained in Art. 3 were to be interpreted as entitling the Parliament established by the Constitution to legislate at any time it so decided for the parliamentary counties and boroughs set out in sub-section (2) of section 1 of the Government of Ireland Act, 1920, then the effect of Art. 10 would be that it would apply to the natural resources of the national territory and would have been so expressed.
Art. 3 does not prohibit the Oireachtas legislating with extra-territorial effect in relation of Northern Ireland for so long as the division of the island of Ireland continues if the Parliament of Saorstát Éireann had power to legislate with extra-territorial effect. 6
The Court has no doubt that in 1937 Saorstát Éireann had power to legislate with extra-territorial effect. This view was not contested by the opponents. The 1929 Report of the Conference on the operation of Dominion legislation noted that the question whether the Dominions had power to legislate with extra-territorial effect was “full of obscurity”. There was, however, the all important distinction that the Constitution of Saorstát Éireann derived its authority, not from any Act of the Imperial Parliament but from an Act of the Dáil, while the Constitutions of the other Dominions derived their authority from Acts of the Imperial Parliament. If there was any doubt about the position of the other Dominions it was dispelled by the Statute of Westminster which in section 3 declared and enacted that the Parliament of a Dominion had full powers to make laws having extra-territorial operation.
The Court is satisfied that Saorstát Éireann had full power to legislate with extra-territorial effect from 1922. This was the view of Mr. Justice Fitzgibbon in R. (Alexander) v. Circuit Court Judge for Cork [1925] 2 I.R. 165 at p. 193 and the Statute of Westminster should therefore be regarded as declaratory of the law and not as making any change in it.
It is established in international law by the decision of the Permanent Court of International Justice in the Lotus Case (P.C.I.J. Ser. A No. 10 (1927)) that every sovereign state has power to legislate with extra-territorial effect in the sense that it may enact that acts or omissions done outside its borders are criminal offences which may be successfully prosecuted within its borders—this is sometimes called the prescriptive jurisdiction—provided that events, acts or persons bear upon the peace, order and good government of the legislating State. (See O’Connell “International Law” 2nd Ed. Vol. 2 p. 602). The Court has no doubt that the offences described in the Schedule to the Bill bear upon the peace, order and good government of the State particularly as they are committed within the national territory.
The Court therefore rejects the contention that Articles 2 and 3 of the Constitution constitute a prohibition on the Oireachtas legislating with extra-territorial effect in relation to matters occurring in Northern Ireland so long as the island is divided. The Bill is not repugnant to the Constitution on this ground.
III
It is submitted that the Bill is repugnant to Art. 38 of the Constitution. This submission is based on two connected, but independent contentions.
It is asserted that the Bill confers jurisdiction upon the Special Criminal Court to try offences created by it and that this is repugnant to the Constitution, either on the basis that no offence, the constituent acts of which are committed outside the State, could affect the administration of justice or the preservation of public peace and order within the State or, on the basis that, even if this is not universally correct, that it is possible to envisage circumstances surrounding the commission of particular offences under the Bill which would render them incapable of affecting the administration of justice or preservation of public peace and order within the State.
Art. 38.3.1º of the Constitution provides:
“Special courts may be established by law for the trial of offences in cases where it may be determined in accordance with such law that the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order.”
The law by which pursuant to that sub-section a special court has been established is the Offences Against the State Act, 1939, which by virtue of Part V provides for the establishment of a Special Criminal Court or Courts.
The method by which it may be determined, if and when the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order, is provided by section 35 of the Offences Against the State Act. 1939, and is a proclamation by the Government which can be annulled by a resolution of Dáil Éireann.
The offences triable by such a special court when established are determined by sections 36; 37, 45; 46; 47 and 48 of the same Act.
In short, by virtue of these sections the offences which may be tried by the Special Criminal Court at any time when it is established, fall into two categories. 7
The first is an offence of a particular class or kind or under a particular enactment declared by the Government to be a scheduled offence under section 36 and the second is an offence which is not scheduled but in respect of which formerly the Attorney General and now the Director of Public Prosecutions has, in the individual case, certified that the ordinary courts are, in his opinion, inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to the trial of the person charged with such offence.
By virtue of section 37 attempting, conspiring or inciting to commit or aiding or abetting the commission of a scheduled offence is itself a scheduled offence.
No other offence can, under the law, come within the jurisdiction of and be triable by the Special Criminal Court.
It is clear, therefore, that even if this Bill were enacted it does not and cannot confer on the Special Criminal Court any jurisdiction to try any offence. Before any offence created by this Bill could come within the jurisdiction of the Special Criminal Court it would be necessary either for the Government to declare under section 36 such offence to be a scheduled offence or for the Director of Public Prosecutions, in the case of the trial of a particular person charged with such offence, to have issued the certificate already referred to.
Section 11 of the Bill, however, clearly refers, and is indeed solely referable, to the trial of offences against the Bill by a special court. This Court has an obligation to be alert in upholding constitutional rights and in discharge of that duty feels obliged to decide whether such trial would be unconstitutional if, upon the enactment of this Bill, by action either of the Government or the Director of Public Prosecutions an offence created by it were tried by a special court.
The precondition for the scheduling or certifying of any offences or offence is the opinion of the Government or the Director of Public Prosecutions that for the offence or for the particular trial the ordinary courts are inadequate. It is clear that many factors could go to the formation of such an opinion such as a general state of unrest within the State, the identity and associates of the accused, the nature of the crime alleged or the apparent motive for it.
There does not appear to be any justification for singling out any one of these factors and so asserting that, because the acts which constitute an offence were committed outside the State, no such declaration or certificate could be issued.
The Court must therefore reject the contention that an offence against the criminal law of the State which consists of acts committed outside the State could not by reason of that fact alone be properly and constitutionally committed for trial by a special court.
It is necessary, however, further to consider whether, if it is possible to envisage a hypothetical case of a particular charge against a particular person in respect of an offence created by the Bill in which it could not reasonably be said that the trial was one for which the ordinary courts are inadequate, that that fact alone and that single hypothetical case renders the Bill repugnant to Art. 38 of the Constitution.
The former Supreme Court in the case of Re McCurtain [1941] I.R. 83 and Mr. Justice Kenny in the High Court in the unreported decision of The Attorney General v. Bollard subsequently confirmed on appeal without a written judgment by this Court, decided that it was constitutional for the Oireachtas to have provided by the Offences Against the State Act, 1939, that the question of the inadequacy of the ordinary courts should be decided by a proclamation and declaration of the Government or by a certificate of the Attorney General now the Director of Public Prosecutions.
It is not necessary in this case for the Court to express an opinion on the circumstances, if any, in which the Courts would be entitled to review any such proclamation, declaration or certificate and it does not do so.
As has already been pointed out the Bill does not confer any jurisdiction upon a special court in relation to all or any of the offences created by the Bill.
The test of repugnancy to Art. 38, therefore, must be, not whether in a particular case an opinion that the ordinary courts were inadequate would be inappropriate, but rather, whether it would be impossible to envisage any case of an offence against the Bill in which that opinion, if formed, would be justified and appropriate. 8
It is clear beyond controversy that if a member of an organisation operating within the State and engaged, inter alia, in intimidating jurymen, were tried here for an offence consisting of acts committed either within or outside the State such an opinion could properly be formed.
The Court must therefore reject the submission that the Bill is repugnant to Art. 38 of the Constitution.
IV
It has been submitted that section 11 of the Bill conflicts with the Constitution either because in certain respects it permits the operation of unfair trial procedures or fails to provide for trial in due course of law or in other respects fails to defend or to vindicate the personal rights of the citizen in accordance with Art. 40.3.1º of the Constitution.
In the first place it is submitted that fair trial procedures and the specific requirement of Art. 38.1 of the Constitution that no person shall be tried on a criminal charge save in due course of law are violated by the fact that the person accused can only be present at the taking of evidence on commission in Northern Ireland by submitting to conditions which it is said are unduly harsh and unreasonable.
In this respect the section provides that, if the accused indicates that he wishes to be present the Court shall make an order directing that he be delivered into the custody of the police of Northern Ireland (sub-section 2) and, for this purpose, he shall be brought to a convenient point of departure by the Garda Síochána, and if on bail, shall be taken into custody not more than twenty-four hours before such delivery (sub-section 4). These provisions, it is said, impose conditions on the exercise of a right which are so unreasonable as to frustrate such exercise because they involve the accused having to leave the security of the State for Northern Ireland, and to do so in the custody first of the Garda Síochána and then of the police of Northern Ireland.
The provisions of Art. 38.1 of the Constitution that no person shall be tried on a criminal charge save in due course of law require fair and just treatment for the person so charged having due regard to the rights of the State to prosecute for the offence charged, and to ensure that the person so charged will stand his trial. “Due course of law” requires a fair and just balance between the exercise of individual freedoms and the requirements of an ordered society.
In this section we are concerned with a person charged with an offence under our law which consists of acts done in Northern Ireland. That the State by its law having created the offence has the obligation and the right to prosecute cannot be doubted. Nor can it be doubted that the State has an equal right and obligation to ensure, in so far as it can, that the prosecution will reach a just and correct conclusion at the trial of the accused. Under Art. 40.3.1º of the Constitution, the State has the added duty by its laws, as far as practicable, to defend and vindicate the personal rights of the person so charged. The question this Court has to decide is, whether, in the circumstances in which the Bill was deemed necessary, these requirements of the Constitution have been fairly met in the provisions under examination.
No question arises with regard to the accused’s right to be present at and throughout his trial. This trial will take place within the State before a special court established under Art. 38.3 of the Constitution. What is in issue is his right to be present at the taking “for the purposes of the trial” of the evidence of a witness or witnesses in Northern Ireland. This involves the travelling to Northtrn Ireland of all the members of the court of trial, and the taking there of the evidence in their presence before a member of the High Court of Justice of Northern Ireland. In these circumstances, how are the rights of the accused observed? Obviously, if he is to be present he must leave the jurisdiction—equally obviously this involves the danger that if he is not in custody while in Northern Ireland he may not return to stand his trial. The section expressly recognises his right to be present but stipulates that such right should be exercised in custody. In addition, under the provisions of sub-section (2) he is, while in Northern Ireland for the purpose of the taking of such evidence, accorded an immunity from detention or any kind of suit or legal process in respect of any cause or matter, civil or criminal, arising before his arrival in Northern Ireland. The section also recognises his right not to be present, and in such circumstances ensures that he can nevertheless be represented by counsel and solicitor (or by solicitor alone). Does the fact that he can be present only whilst in custody frustrate the exercise of that right? If all the evidence at his trial were to be given at the 9 trial his freedom of movement would in any event be restricted because he would be in the custody of the Court. That he should also be in custody when it is necessary for part of the evidence to be taken outside the State in his presence seems to be a reasonable compromise. Does the fact that in order to exercise his right he is obliged to go to Northern Ireland and put himself beyond the protection of the State in itself constitute too high a price to pay for the exercise of that right? It cannot be overlooked that he is to be in the custody and therefore under the protection of the police of Northern Ireland, and that he is guaranteed immunity from detention or legal process while so there. The Court is of the opinion that in this respect the provisions of this section do not offend the provisions of the Constitution and are not repugnant thereto in the manner submitted.
It was also contended that the requirements of the section with regard to the accused being in custody if he wished to be present at the taking of evidence in Northern Ireland constituted a deprivation of his right of access to the Courts for the purpose of obtaining bail, and an interference with the jurisdiction of the Courts. What is termed a right to bail is not a constitutional right but a recognition by the Courts that a person presumed to be innocent shall not have his liberty interfered with unnecessarily pending his trial on a criminal charge. It is subject to the paramount requirement that he shall be available to stand his trial. In The People (Attorney General) v. O’Callaghan [1966] I.R. 501, Walsh J. said at page 533:
“From the earliest times it was appreciated that detention in custody pending trial could be a cause of great hardship and it is as true now as it was in ancient times that it is desirable to release on bail as large a number of accused persons as possible who may safely be released pending trial. From time to time necessity demands that some unconvicted persons shall be in custody pending trial to secure their attendance at the trial, but in such cases ‘necessity’ is the operative test.”
Here what is done is done pursuant to an order of the Court. If such order is made on a wrong basis, it can be set aside by the High Court. In addition, the order can only be made at the request of the accused. Further, the requirements as to custody are obviously necessary and no more than necessary to secure that the accused while in Northern Ireland will receive proper protection and will be returned at the conclusion of the evidence to the jurisdiction of the State, there to be returned into such custody as he had been or to be released on bail, as the Court may decide.
In the opinion of the Court these provisions do not constitute either a denial of access to or an interference with the jurisdiction of the Courts.
It was further argued that the provisions of sub-section (2) (b) are defective in that they do not provide that, in the event of the accused electing not to be present at the taking of evidence in Northern Ireland, those representing him shall have the right to cross-examine the witness or witnesses whose evidence is being taken. An opportunity to cross-examine on behalf of the accused any witness called against him is fundamental to a trial in due course of law and the taking of evidence for production at such trial without such an opportunity would be contrary to the Constitution. Here, however, the right of representation by counsel and solicitor (or solicitor alone) is provided for. The Court is of the opinion that this right of representation undoubtedly includes the right to cross-examine. For this reason the Court holds that this objection also fails.
It was also submitted that the section does not provide that a statement of the evidence intended to be given by the witness shall be given to the accused before such evidence is taken. It was urged that this involved an unfair trial procedure or was contrary to a trial in “due course of law” because the accused could be left in ignorance of the nature of evidence sought to be adduced against him.
By virtue of section 6 of the Criminal Procedure Act, 1967, an accused person before the District Court charged with an indictable offence and not being tried summarily is entitled as part of the preliminary investigation to a statement of the evidence to be given by each witness whom it is proposel to call at the trial.
By virtue of the Special Criminal Court Rules, 1975 (S.I. No. 234 of 1975), a person brought before the Special Criminal Court under section 47 of the Offences Against the State Act, 1939, and charged with an indictable offence is entitled to receive a list of the witnesses to be called and a statement of the evidence that is to be given by each of them. No person can be brought before the 0 Special Criminal Court and tried on an indictable offence except after an order returning him for trial by a District Justice subsequent to a preliminary investigation carried out under the Criminal Procedure Act, 1967, or pursuant to a direction of the Director of Public Prosecutions under section 47 of the Act of 1939.
Section 11 of the Bill applies to the trial of an offence under section 2 or 3 of the Bill only. Every offence under either section 2 or 3 of the Bill is punishable only on conviction on indictment. Every trial, therefore, to which section 11 could have application must be the trial (as the law now is) of an indictable offence by the Special Criminal Court.
In every such trial either by virtue of the Criminal Procedure Act, 1967, or the Special Criminal Court Rules, 1975, the accused is entitled to a statement of the evidence of each witness whom it is proposed or intended to call.
The Court is satisfied that section 11 must be interpreted as making a person whose evidence is to be taken on commission in Northern Ireland a witness whom it is intended or proposed to call at the trial.
Such a person is, in the section, referred to as a witness; his evidence so taken, may, if certain conditions are fulfilled, be admitted as part of the proof at the trial, and he is to be examined for the purpose of the trial and subjected to cross-examination.
It would in the view of the Court be incorrect and indeed fanciful to hold, as has been submitted, that because such a person gives evidence for the purpose of the trial before a Commissioner in the presence of the members of the Court and not before the members of the Court themselves he is not a witness within the meaning of the Act and Rules referred to.
It is also to be noted that under the provisions of sub-section (1) of the section the Court has to consider in relation to the making of an order for the taking of evidence of a witness the interests of justice and is precluded from doing so if it is not in the interests of justice to do so. It seems impossible to imagine the operation of the section without a full and adequate disclosure of the nature of the evidence being made beforehand to the accused. Without such, the Court could scarcely consider the interests of justice and without such, the accused could not properly decide whether he ought to be present or not. Without, therefore, deciding whether there is a constitutional right to have prior notice of the evidence given, the Court is of opinion that the operation of the section requires the disclosure in an ample manner to the accused of the evidence sought to be taken and that accordingly this submission also fails.
It was also submitted that the provisions of sub-section (3) (a) are defective in that the sub-section only provides that “a statement of evidence of a witness” so taken shall be admissible and that this could fall far short of a full transcript of the questions asked, the answers given and of rulings on the admissibility of evidence and could therefore be inadequate. The Court notes, however, that such statement is to be certified by the judge of the High Court in Northern Ireland who took it as “a true and accurate statement of the evidence so taken” and that its admissibility as evidence at the trial of the accused depends on such certificate being given. It is also to be borne in mind that the members of the court by whom the evidence, if admitted, is to be accepted or rejected, must have been present for the entire of the proceedings before the Commissioner. The Court is satisfied that a statement of evidence correctly certified to be a true and accurate statement of the evidence so taken in the presence of the Court satisfies the requirements of justice.
Objection was also taken to the section on the grounds that it did not extend to evidence of opinion from experts and that accordingly an accused person on trial here who wished to have the evidence of an expert taken in Northern Ireland as part of his defence would be hampered in his defence. This objection was based on the provisions of sub-section (3) (a) to the effect that the statement of the evidence so taken shall be admissible “as evidence of the facts stated therein”. The Court is of the opinion that these words extend to the sworn testimony of an expert as to what his opinion is.
A further objection was taken that the section provided only for the transmission of a statement of evidence and did not expressly extend to exhibits. This objection may be a relevant one for the consideration of the special court when deciding on the admissibility of such evidence or any part thereof or the proof necessary of any exhibit. 1 The Court does not regard this question as relevant to the constitutionality of the section.
It is further contended that sub-section (3) (a) in so far as it provides that a statement of evidence certified in accordance with the sub-section shall “be admissible” was mandatory and excluded the jurisdiction of the Court to reject or not to accept such evidence. The Court is of opinion that this submission is not well-founded. The section merely provides that such a statement of evidence shall be capable of being admitted. It is for the Court to decide whether in fact it will be admitted, and if admitted, whether to accept or reject such evidence.
In the course of the arguments on the constitutionality of the procedure created by the section, the opponents to the Bill invited the Court to have regard to the Criminal Jurisdiction Act, 1975, being the British Act extending to Northern Ireland, which is intended to operate in Northern Ireland at the same time as this Bill operates within the State. Counsel directed the Court’s attention to the provisions of this British Act providing in Northern Ireland for the taking of the evidence directed by an order made under section 11 of the Bill. The British Act provides as follows, in Schedule 4 Part I paragraph (4):
“(4) The witness shall be entitled to the same immunities and privileges as if he were a witness in a trial on indictment for an offence under the law of Northern Ireland, and questions as to the exclusion of any evidence, or the withholding of any document or thing on the ground of public interest, shall be determined in accordance with the law of Northern Ireland.”
It was urged by counsel opposing the Bill that this would mean that such evidence would be taken under laws with regard to the exclusion of evidence and the withholding of documents or things which might not accord with our laws, and that accordingly the rights of the accused could be infringed. The presumption of constitutionality already referred to normally carries the implication that all proceedings, procedures, discretions and adjudications permitted under the legislation being examined were intended to and would be conducted in accordance with the principles of constitutional justice. (See East Donegal Co-Operative Society v. the Attorney General 104 I.L.T.R. 81; [1970] I.R. 317). The Court is not prepared to hold that such presumption can be applied to proceedings, procedures, discretions and adjudications required by the legislation to be performed outside the State and by persons having no obligation to uphold the Constitution. This, however, does not mean that the rights of the accused are thereby endangered. It remains a question for the court of trial or on review for the Court of Criminal Appeal to decide whether in the circumstances of a determination made under paragraph (4) of Schedule 4 of the British Act the statement of the evidence ought to be or have been admitted. The question whether such evidence is to be admitted, and if admitted, acted upon, remains completely within the jurisdiction of our Courts. For these reasons this submission fails.
One final submission deserves particular attention. Sub-section (2) provides that where a Court makes an order for the taking of such evidence it shall inform the accused that he has certain rights. These rights are specified in paragraphs (a) to (d) of the sub-section. It has been pointed out by counsel opposing the Bill that the sub-section does not accord these rights but merely provides that the accused shall be informed that he has them. This is undoubtedly true, and probably arises from the fact that the sub-section contemplates rights to be enjoyed outside the jurisdiction and in accordance with the laws there in force. The Court does not consider this to be a sustainable objection to the Bill. The Court thinks it proper to say, however, that if all these rights are not accorded in full to the accused it is the opinion of the Court that a statement of evidence taken in such circumstances would not be taken in compliance with the section and would on that ground not be admissible at his trial.
V
The Court has examined the whole of the Bill and is satisfied that neither the Bill nor any provision or provisions thereof is or are repugnant to the Constitution or to any provision thereof and will advise the President accordingly.
Thomas F. O’Higgins
Thomas A. Finlay
Frank Griffin
John Kenny
Weldon R. C. Parke
Barlow v Minster for Agriculture
Barlow v Minister for Agriculture [2014] IEHC 471
JUDGMENT of Mr. Justice Birmingham delivered the 28th day of October 2014
1. This case concerns mussel seed fishing in Irish waters (i.e. waters within twelve nautical miles of the Irish coast). The corporate plaintiffs are the owners of Irish licensed sea fishing vessels, which are purpose built mussel seed vessels, and all the plaintiffs have a history of involvement in the bottom grown mussel industry. Each of the individual plaintiffs with the exception of the third named plaintiff who is the general manager and company secretary of the fourth named plaintiff as well as being the skipper of the Hibernia fishing vessel owned by the fourth named defendant, is a director of one of the corporate plaintiffs.
2. Central to the current proceedings is that the plaintiffs contend that mussel seed fishing in Irish waters by Northern Ireland vessels, as permitted by the Irish authorities, is harming the industry and causing them loss and damage. The essential case made by the plaintiffs is that the defendants, in permitting fishing by Northern Irish boats, are acting unlawfully and indeed unconstitutionally. There are a number of aspects to the plaintiffs’ claim, but the core contention is that Northern Irish vessels cannot be permitted to fish in Irish waters unless provisions are made for this by law and that there is no law making provision for this. The plaintiffs say that the requirement which they say exists for an express legal authorisation for Northern Ireland fishing stems from the express provisions of the Constitution, from the constitutional order of the State and from statute.
3. Before turning to the legal issues, it is necessary to provide a little information about the mussel industry and to say something about the history of that industry. It appears that prior to the 1980s only a very limited amount of mussel fishing took place in Ireland involving a small number of families with a tradition of involvement in the mussel industry. In the 1990s bottom mussel fishing, which is what this case is about, as distinct from the rope mussel fishing industry on the west coast was largely centred in Wexford and in Cromane in Kerry.
4. In the late 1990s and the early years of this century, there were significant developments in relation to the bottom mussel seed industry and indeed the wider aquaculture industry. In that context, the National Development Plan 2000 to 2006 placed an emphasis on the potential for development of the aquaculture sector and financial assistance referred to as Financial Investment for Fisheries Guidance (FIFG) was made available. It is of significance that the plaintiffs received FIFG to support them in purchasing purpose built mussel vessels at a cost of between €3.4 and €3.795 million per vessel. The plaintiffs place emphasis on the fact that those seeking FIFG support were required to submit detailed business and aquaculture plans. These plans were based on mussel seed allocation requirements. However, the plaintiffs say that there has been a marked disparity between the allocations that were contemplated during the grant approval process and the actual allocations that they have received. The mussel industry involves wild mussel seed being dredged from natural mussel seed beds by specially designed vessels and then the second stage sees the seed transferred from the area where it was dredged to an aquaculture site where they are relayed and allowed mature. Typically the aquaculture sites where maturing takes place are situated in sheltered waters.
5. Maturing takes twelve to eighteen months. Mussel seed is a naturally occurring substance. Annual production levels are not constant, but levels vary appreciably. However, the trend in recent years has been very clear. In 2005, by way of illustration, Ireland produced 29,500 tons of bottom mussels, the National Development Plan envisaged that this would rise to 44,000 tons by 2015. However, in 2010, the figure had dropped to just over 13,000 tons and the figure for 2013, was down to 2,500 tons. To put those figures in some context, it should be noted that during the years 2000 to 2006, 20,000 was seen as a somewhat disappointing year.
6. The very poor return in 2013 is a cause of particular concern. Summer sea temperatures last year were several degrees above average and that should have produced a bumper yield, but the actual outcome was indicative of a fishery in collapse. The plaintiffs’ case is that while some peaks and troughs are to be expected, that a decline of the magnitude that has occurred cannot be explained by natural occurring variations and environmental conditions, but is attributable to serious mismanagement of the fishery and specifically to over fishing. In terms of over fishing the plaintiffs point to an increase in the number of vessels fishing and specifically point out that in 2000, there were two or three Northern Irish registered mussel vessels active in Irish territorial waters, and none prior to that, at which stage there was no established mussel industry in Northern Ireland. Whereas by 2003, there were eleven Northern Ireland vessels fishing. There has been a drop off from that figure since, partly reflecting the decline in mussel seed stock, but there has been significant fishing by a number of Northern Ireland vessels. Apart from an increase in the number of vessels that are fishing, which is of itself a cause of major concern, the plaintiffs also say that Northern vessels have a tendency to engage in a particularly aggressive and unsympathetic form of fishing.
7. In this century, the mussel industry has been managed on an all island basis, known as “joint management” which refers to the joint administration of the mussel seed industry by the Department of Agriculture, Food and the Marine, and the Northern Ireland Department of Agriculture and Rural Development (DARD). The title of the Irish Department involved has changed on a number of occasions over the years and for simplicity I will simply refer to it as the Department of the Marine. Part of the joint management initiative saw responsibility for the assessment of allocations of mussel seed being undertaken for a period by a non statutory cross border body known as the Seed Mussel Allocation Committee, (SMAC), with allocations being made on an all island basis. The legality of SMAC and the way in which it managed the mussel industry is at issue in related proceedings referred to as Barlow 1, which proceedings have been placed on hold pending the determination of the present proceedings referred to as Barlow 2.
8. I should say a little about the relationship between these sets of proceedings and about the so called Barlow 1 proceedings. Proceedings bearing Record No. 2006/2687P were commenced by the plaintiffs in 2006. The stage was reached where those proceedings were actually opened in October, 2012, but immediately following the opening there was an application to amend substantially the plaintiffs’ pleadings. An application was refused leading to those proceedings adjourning and to the initiation of the present proceedings. In Barlow 1 the plaintiffs raised a number of complaints about how the mussel seed sector was administered. One of the complaints was that the Minister for the Marine had breached the terms of a Voisinage agreement (or neighbourhood agreement). I will be dealing in much greater detail presently with the terms of the Voisinage agreement and what significance is to be attached to it, but at this stage, suffice to say that the agreement makes provision for Irish fishing vessels, that is to say, vessels from this State and Northern Irish vessels to enjoy the right to fish on a reciprocal basis in each others’ waters. However in the present proceedings the plaintiffs are seeking:
(i) A declaration that Northern Ireland fishing boats fishing for mussel seed within Irish territorial waters are not authorised by law to so fish within the meaning of s. 10 of the Sea Fisheries and Maritime Jurisdiction Act 2006.
(ii) Seeking if necessary a declaration that the exchange of letters (those that are alleged to constitute the Voisinage agreement) do not constitute an arrangement within the meaning of s. 8(1)(a)(iii) of the Sea Fisheries and Maritime Jurisdiction Act 2006.
(iii) Seeking if necessary a declaration that s. 8 of the 2006 Act is unconstitutional having regard to Article 15.2 and Article 29.6 – this claim has not been pressed.
(iv) If, which is denied, an existing arrangement was memorialised by the exchange of letters, a declaration that at all material times, the existing arrangement no longer existed.
(v) If, which is denied, an existing arrangement was memorialised by the exchange of letters, a declaration that this was not covered or within the terms of the London Fisheries Convention [1966].
(vi) If, which is denied, the defendants are entitled to rely upon an agreement and/or arrangement and/or a memorandum of understanding as a legal basis for mussel fishing by Northern Ireland fishing boats in territorial waters, a declaration that the same is justiciable and that the plaintiffs are entitled to rely on the legal effects of same.
(vii) A declaration that the defendants acted contrary to Article 15 of the Constitution in adopting S.I. 311/2006 – The Mussel Seed (Fishing) Regulations 2006. However, in a situation where the defendants have accepted that the Statutory Instrument does not go further than recognising the existence of the Voisinage arrangement this relief has not been pressed.
9. The two sets of proceedings involve the plaintiffs presenting divergent claims. However, the plaintiffs’ basic complaint is that by virtue of permitting Northern Ireland boats to fish, that the slice of the cake allocated to the plaintiffs is smaller than would otherwise have been the case, because there are more mouths to feed and moreover that the cake available for distribution is smaller than ought to have been the case because of over fishing and mismanagement. While the plaintiffs primary complaint is about the numbers permitted to fish and that those who ought not to be permitted to fish are in fact permitted to do so, they also make the point that, as I have already indicated, Northern Ireland boats have engaged in a particularly aggressive and unsympathetic form of fishing with consequential damage to the fishery.
10. The respective cases of the parties may be summarised as follows:-
The plaintiffs contend:
(i) That the defendants have permitted Northern Ireland registered mussel vessels to fish for mussel seed in Irish waters without any legal basis grounding that entitlement.
(ii) Mussel seed is a natural resource and as such under Article 10.3 of the Constitution, any management or alienation of it by the State must be prescribed by law.
(iii) Permitting fishing of mussel seed amounts to a permanent alienation of the resource and also constitutes management of it within the meaning of Article 10.3 of the Constitution.
(iv) So far as Irish vessels are concerned, the 2006 Act regulates by law through a detailed system of authorisation and allocations. However, there is no equivalent provision made in law for Northern Ireland mussel fishing vessels.
(v) The Constitution requires that all executive action be governed by the rule of law so that the executive cannot take action without reference to a particular statutory provision or common law rule that justifies their action.
(vi) This is particularly important when executive action affects rights, interests or legitimate expectations or creates entitlements.
(vii) Section 10 of the 2006 Act expressly criminalises fishing by foreign sea fishing boats unless authorised by law and thus the fishing in Irish waters by Northern Ireland boats is unlawful and criminal.
(viii) Section 8 of the 2006 Act cannot be regarded as providing the authority required by law as it only permits entry into Irish waters and does not permit fishing.
(ix) Section 8 of the 2006 Act only has application when legal instruments are in force. The exchange of letters at issue in the present proceedings cannot be said to be “in force” as they are not legally binding. In the premises, say the plaintiffs, there is no statute or common law rule that justifies the actions of the defendants.
(x) The plaintiffs say that insofar as the defendants justify mussel seed fishing by Northern Ireland boats by reference to the exchange of letters or Voisinage agreement that the exchange of letters does not provide a justification as
– it is not binding in international law
– it is not binding in domestic law
– it is not subject to Oireachtas control
– it has never been incorporated into domestic law
– it is neither public nor precise.
(xi) In the alternative, if contrary to their primary submission, the exchange of letters permits some fishing by non Irish fishing boats, it does not permit the mussel fishing actually being carried out since such fishing is not as a matter of fact covered by the terms of the exchange. It is said that this is so because there is no reciprocity as Irish boats are prohibited by British law from fishing for mussel seeds in Northern Ireland waters, because Northern Ireland registered mussel vessels not owned by fishermen permanently resident in the six counties are permitted to fish in Irish waters, and because Northern Ireland registered mussel vessels greater than 75 feet in length are permitted to fish in Irish waters.
(xii) Northern Ireland registered mussel vessels were not habitually fishing in Irish territorial waters at the time of the exchange of letters [the relevance of a number of these assertions will become apparent when the terms of the letters exchanged are considered].
(xiii) The plaintiffs say that they have a legitimate expectation that fishing would be carried out in accordance with the terms of the letters exchanged and that the reliance placed upon the exchange to justify mussel seed fishing as practised by Northern Ireland vessels is in breach of that legitimate expectation. [However, by agreement consideration of the legitimate expectation issue has been deferred until Barlow 1 and does not require consideration at this stage.]
11. The defendants for their part in summary say:-
(i) The Voisinage arrangement is not justiciable at the suit of the plaintiffs.
(ii) The Voisinage arrangement is a memorandum of understanding of a technical and administrative character not requiring either to be laid before the Dáil or to be approved by the Dáil, i.e. coming within the first category referred to by Finlay C.J. in the State (Gilliland) v. Governor of Mountjoy [1987] I.R. 201, the case involving the extradition treaty between Ireland and the United States.
(iii) The Voisinage arrangement is recognised under the Common Fisheries Policy as an arrangement under existing neighbourhood relations between Member States. As such it is directly effective and confers rights and/or privileges on Northern Ireland fishermen independently of the provisions of domestic law.
(iv) Fishing by Northern Ireland mussel seed fishermen in the territorial waters of Ireland is not unlawful under s. 10 of the Sea Fisheries and Maritime Jurisdiction Act 2006, as properly construed.
(v) Statutory Instrument 311/2006 does not confer, though it does recognise, rights to fish under the Voisinage arrangement. Therefore, there is no question of the Statutory Instrument being either ultra vires or unconstitutional.
(vi) The plaintiffs are not entitled to a declaration to the effect that the existing arrangement no longer existed at all material times.
(vii) Further or in the alternative, the plaintiffs are not entitled to seek to enforce the terms of the Voisinage arrangement and are not entitled to and never had any legitimate expectation in relation to the observance of same and have no entitlement to damages.
12. Insofar as both sides’ submissions have focused on the exchange of letters and the existence or otherwise of a Voisinage agreement, it is appropriate to turn first to the documents said to constitute the agreement. The first document in issue is a letter from a Mr. D.E. O’Sullivan of the Department of Agriculture and Fisheries and is addressed to J.V. Bateman of the Ministry of Agriculture in Belfast, dated the 13th September, 1965. That letter was in these terms:-
“With reference to our recent telephone conversation relating to the rights of your vessels to fish in our exclusive fishery limits, I wish to confirm that we propose to continue the present arrangement whereby your boats owned and operated by fisherman permanently resident in the Six Counties will be permitted to fish within our new limits.
Incidentally, the position as regards our own boats is that in accordance with the licensing of sea fishing vessels Regulations, 1960 (S.I. No. 4 of 1960) no vessel exceeding seventy five feet in length may be used for sea fishing, except under and in accordance with a licence issued under s. 9 of the Sea Fisheries Act 1952, as amended by the Sea Fisheries (Amendment) Act 1959. The present practice is to require vessels exceeding 90ft in length or 400 H.P. to refrain from fishing within our exclusive fishery limits and this will apply to the inner six mile zone of the extended limits.
The position will be, therefore, that your vessels up to 75ft in length overall may fish within our exclusive fishery limits subject only to the usual regulations which would effect our own boats also.
If there were any question of vessels exceeding that length, fishing within the inner six mile zone of our limits, it would be necessary for them to hold a permit to do so from the Minister for Agriculture and Fisheries under the Maritime Jurisdiction Act 1959(section 8) as amended by the Fisheries (Amendment) Act 1962 (section 34).”
13. On the 14th December, 1965, Mr. W.H. Elliott of the Ministry of Agriculture in Northern Ireland wrote to Mr. O’Sullivan. That letter was in these terms:-
“Voisinage arrangement under Article 9(2) of the Fisheries Convention
Dear Mr. O’Sullivan,
Thank you very much for your letter to Bateman of the 13th September. I am sorry it has taken us so long to reply.
I acknowledge your undertaking to the effect that Northern Ireland owned and operated fishing vessels will continued to be allowed to fish within your new limits and we assume that these limits include your territorial waters.
We for our part confirm that we consider ourselves bound by the terms of para. 6 of the note of the 25th August, 1964 from the Commonwealth Relations Office to your Government headed “London Fisheries Convention 1964, Extension of British Fisheries Limits”.
14. Paragraph 6 of the note of the 25th August, 1964 from the Commonwealth Relations Office is in these terms:-
‘In accordance with Article 9(2) of the Convention her Majesty’s Government propose to leave unchanged the arrangement under which vessels of the Republic of Ireland are permitted to fish for all descriptions of fish within the exclusive fishery limits of the British Islands adjoining Northern Ireland except insofar as the said exclusive fishery limits lies within six miles (or during the transitional period three miles) of the base lines along the coast of Scotland. This arrangement will apply as long as the authorities of the Republic of Ireland continue to accord to Northern Irish vessels the same treatment as they accord to vessels of the Republic of Ireland in the waters around the coast of the Republic.’”
15. The reference in the documents to Article 9(2) of the Convention is to Article 9(2) of the London Fisheries Convention 1966 done in London on the 9th March, 1964. I will refer to the provisions of Article 9(2) in due course. Before going on to consider in detail the arguments that have been advanced, there are some matters that arise on an initial reading of the documents that merit mention at this stage. First, it is appropriate to note that the letters exchanged in 1965 were between officials of the Departments of Agriculture as distinct from notes passing between heads of Government, Ministers for Foreign Affairs or indeed diplomats. It will also be noted that the language of the letters do not exactly mirror each other, the letter from Mr. O’Sullivan speaks of boats owned and operated by fishermen permanently resident in the six counties, while the letter from Mr. Elliott refers to Northern Ireland owned and operated fishing vessels. If this was a question of identifying and interpreting the terms of a contract by reference to the doctrine of offer and acceptance, this divergence of language might well cause difficulties. What does emerge clearly is what was sought to achieve; which was to leave in place pre-existing arrangements. The 25th August, 1964, note, speaks of proposing to leave unchanged an arrangement while the O’Sullivan letter speaks of a proposal to continue the present arrangement. The fact that the two operative documents, the 1964 note and the O’Sullivan letter both refer to existing arrangements is particularly noteworthy. One final aspect of the document to which I will draw attention at this stage is the reference in the letter of Mr. O’Sullivan to vessel size. The significance of this is that at present, mussel fishing vessels whether Irish or Northern Irish routinely exceed 75ft in length. The plaintiffs take the view that whatever was decided upon in 1965, was specifically confined to vessels under 75ft in length and that it is not possible to look at the 1965 exchange as providing any form of authorisation for fishing by vessels larger than that. The defendants on the other hand, say that the 1965 exchange was providing for reciprocal permissions. For my part, I attach significance to the word “incidentally” and regard that as making clear that what followed was the incidental provision of information on what arrangements were then current. I do not believe that the correspondence is open to the interpretation that the practices that prevailed in September, 1965, were being set in stone and declared immutable.
The Constitutional Argument.
16. The plaintiffs argue that there is an express constitutional requirement for fishing for mussel seed by Northern Ireland vessels to be regulated by law. This argument is based on Article 10 of the Constitution. That article provides as follows:-
“10.1 All natural resources, including the air and all forms of potential energy, within the jurisdiction of the Parliament and Government established by this Constitution and all royalties and franchises within that jurisdiction belong to the State subject to all estates and interests therein for the time being lawfully vested in any person or body.
2 All land and all mines, minerals and waters which belonged to Saorstát Éireann immediately before the coming into operation of this Constitution belong to the State to the same extent as they then belonged to Saorstát Éireann.
3 Provision may be made by law for the management of the property which belongs to the State by virtue of this Article and for the control of the alienation, whether temporary or permanent, of that property.
4 Provision may also be made by law for the management of land, mines, minerals and waters acquired by the State after the coming into operation of this Constitution and for the control of the alienation, whether temporary or permanent, of the land, mines, minerals and waters so acquired.”
17. Article 10.1 raises the issue whether mussel seed is a natural resource belonging to the State. There is no doubt that at one level, mussel seed can be described and indeed, as the plaintiffs point out has frequently been described, as a natural resource. It is natural as opposed to manufactured or artificial and in the sense that it is of value, it can be said to be a resource. However, I am doubtful whether that constitutes it a natural resource owned by the State. Obviously, the State, in common with other States, exercises jurisdiction over waters around its coast and does so for various purposes; economic development, prevention of pollution, defence and national security are some that come to mind. However, it is a major step from that to say that marine species are owned by the State as distinct from being capable of being managed by the State. Most fish species are migratory, indeed many very valuable species migrate huge distances crossing nautical boundaries. By the same token, wild animals and birds that could be regarded as an economic resource, either as a source of food supply or because hunting them is a significant tourist activity, roam freely and will sometimes cross State boundaries. Can it be said that the wild fish, birds or animals are owned by the State in which they are as of a particular time? States may license hunting or fishing, make provision for closed seasons and so on, but this is not to say that the State owns the fish or animals. To take an example far removed from the present, the South African state takes vigorous measures against poachers of rhino and elephant, but it does not own these great animals and is powerless to prevent them crossing its borders into neighbouring States.
18. Historically the view has always been that wild beasts, fowl and fish were “nullius in bonis” (no one’s property). Again from an historical perspective there was an individual right of fishing, see Longfield on the Fishery Laws of Ireland. At p. 3 it observes:-
“..[T]here were recognised as vested in all the subjects of the realm two well established rights, that of free navigation and free fishing.”
19. The situation was not altered by the establishment of Saorstat Éireann as emerges from R. (Moore) v. O’Hanrahan [1927] I.R. 406 There, Murnaghan J. quoted with approval the following passage from Viscount Haldane L.C. in A.G. for British Columbia v. A.G. for Canada [1914] AC 153.
“But their Lordships are in entire agreement with him on his main proposition, namely, that the subjects of the Crown are entitled as of right not only to navigate but to fish in the high seas and tidal waters alike. The legal character of this right is not easy to define. It is probably a right enjoyed so far as the high seas are concerned by common practice from time immemorial, and it was probably in very early times extended by the subject without challenge to the foreshore and tidal waters which were continuous with the ocean, if, indeed, it did not in fact first take rise in them. The right into which this practice has crystallized resembles in some respects the right to navigate the seas or the right to use a navigable river as a highway, and its origin is not more obscure than that of these rights of navigation. Finding its subjects exercising this right as from immemorial antiquity the Crown as parens patriae no doubt regarded itself bound to protect the subject in exercising it, and the origin and extent of the right as legally cognizable are probably attributable to that protection, a protection which gradually came to be recognized as establishing a legal right enforceable in the Courts.” (at pgs 443-444)
20. Nor, was the situation altered by the 1937 Constitution as is clear from the judgment of Gavan Duffy P. in Foyle and Bann Fisheries v. Attorney General [1949] 83 I.L.T.R. 29. That the general right to fish extended to shellfish does not seem in doubt. Howard on the Law of Aquaculture comments as follows at para. 15.02:-
“Although now modified in many respects by statute, the common law of England and Wales incorporates the right to take shellfish as a part of the general right of public fishery in the sea and in tidal waters and is enjoyed by all members of the public. (Royal Fishery of the Banne case (1610) Dav. Ir. 55; and Attorney-General for British Columbia v. Attorney-General for Canada [1914] AC 153).”
21. If I am doubtful that mussel seed could be regarded as a natural resource as that term is used in Article 10.1 I am all the more doubtful, whether what is being permitted to happen could be described in any real sense as the alienation of that property.
22. Murdoch in his Dictionary of Irish Law, defines alienation as the power of an owner or tenant in property to transfer his interest, while Javitt’s definition is of transferring of property to another. In this case there is no transferring of property, all that is happening is that fishing activity is permitted, as it happens on a reciprocal basis. Whether the permission to fish results in seed being taken depends on whether seed is located, whether the fishery is open, whether the individual vessel is within the limits of its authorisation and other factors. The plaintiffs have asserted that the traditional notion of nullius in bonis must be reconsidered in the context of the assertion contained in Article 10.1 of the Constitution. But there is no hint of such a radical departure from the long established legal order to be found in Article 10. It is very hard to believe that the Irish people in adopting a Constitution could ever have contemplated that they were setting aside long established legal principles dating back from many centuries and in the process surrendering rights that their ancestors had enjoyed over the centuries.
The Constitutional Order
23. In addition to what they contend are the express requirements of the Constitution, the plaintiffs also assert that support for their view that authorisation by law is obligatory arises from the implied constitutional requirement of the rule of law. That the rule of law is the cornerstone of the Irish legal system is not open to doubt. See, if needed, the express observations to that effect in Maguire v. Ardagh [2002] 1 IR 385 by Denham J. (as she then was). The plaintiffs have drawn attention to her comments at p. 567 that the rule of law has three components being (i) everyone is subject to the law, (ii) the law must be public and precise and (iii) the law must be enforced by some independent body. By reference to those three principles and to a fourth principle which Hogan and Morgan have described as the principle of legality, the plaintiffs say, which is scarcely controversial, that these principles exclude unfettered discretion on the part of the executive and that, and again this is not at all controversial, that the executive now acts pursuant to law and the Constitution and that Royal prerogatives have not survived the enactment of the 1922 and 1937 Constitutions.
24. However, these statements of high constitutional principles must be seen in context. It is hard to justify references to the exercise of an unfettered discretion in permitting reciprocal fishing, when at the same time there is absolutely no cap whatever on the number of Irish boats that could be authorised to fish for mussel seed. Again, the context in which the State took the decisions that it did in 1965, is of considerable significance. Those decisions were taken in the context of the State considering how relations with its nearest neighbour should be ordered. The authorities are clear that a particular degree of restraint is required from the courts in entering onto foreign policy issues. In Horgan v. Ireland [2003] 2 IR 468, the Shannon stopover case, Kearns J. (as he then was) having considered the provisions of Articles 5, 6, 15, 28 and 29 of the Constitution stressed that the Government and the Government alone can exercise the executive power of Government. In doing so, he referred to certain observations by Walsh J. at p. 782 of Crotty v. An Taoiseach [1987] IR 713, where he had said:-
“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 authority of the Government.”
25. Kearns J. also quoted with approval the remarks of Fitzgerald C.J. in Boland v. An Taoiseach [1974] IR 338. That case concerning as it did the Sunningdale agreement is one of particular interest as it is concerned with Anglo Irish relations and North South relations. At p. 361, Fitzgerald C.J. commented:-
“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.”
26. Kearns J. was of the view that some quite egregious disregard of constitutional duties and obligations must take place before the courts could intervene under Article 28 of the Constitution. Kearns J. also dealt with the same topic in the course of his judgment in Doherty v. Government of Ireland [2010] IEHC 369, when considering the characteristics of justiciable controversy. There he commented that similarly [to the exclusion of purely political issues, revenue and borrowing powers of the State] in international relations and the conduct of foreign affairs, the courts have invariably taken the view that controversies which may arise are not justiciable at the behest of individual citizens as the provisions of Article 29.1 to 29.3 relate only to relations between the States and confer no rights upon individuals.
27. In my view, the requirements for restraint and circumspection on the part of the courts in the area of foreign affairs is heightened when what is at issue is relations with Britain; East/West and North/South relations. There is no authority, or indeed any justification for the proposition that at the level of policy, the Government cannot conduct relations through neighbourhood agreements or arrangements.
28. The defendants have asserted strongly that the issues which the plaintiffs seek to litigate are just not justiciable. There is much force in the argument. However, in a situation where the plaintiffs have emphasised that their challenge is essentially a procedural one and that they are not seeking to review the merits, the wisdom and appropriateness of the decisions in relation to Northern Irish boats, it would not be appropriate to proceed to dismiss the proceedings in limine. However, we must not lose sight to the fact that the form and style in which relations are conducted – whether by way of formal treaty, signing ceremonies in circumstances of pomp and ceremony or at ministerial level or at official level – itself involves important exercises in judgment, which are properly taken by Government. A very considerable margin of appreciation should be afforded to the Government.
29. The Constitution itself envisages three different types of international agreements,
“(i) An agreement or convention of a technical and administrative kind which does not require to be laid before the Dáil and which does not require to be approved by the Dáil.
(ii) An international agreement involving a charge upon public funds where the State will not be bound unless the terms of the agreement have been approved by the Dáil.
(iii) An agreement falling into neither of the first two categories which must be laid before the Dáil, but need not be approved by the Dáil.
(See the State (Gilliland) v. Governor of Mountjoy [1987] I.R. 201).
The Voisinage arrangement in question, which is in the nature of a memo of understanding or arrangement, insofar as it can be described in a very broad sense as an international agreement would appear to fall into category (i). That being so there was, therefore, no requirement for the arrangement to be laid before the Dáil or to be approved by it. I reject the arguments based on the constitutional order of the State and accordingly, the challenge on constitutional grounds fails.
The Statutory Challenge.
30. The starting point for consideration of this issue is to be found in s. 10 of the Sea Fishing and Maritime Jurisdiction Act 2006. That section provides as follows:-
“10(1) A person on board a foreign sea-fishing boat shall not fish or attempt to fish while the boat is within the exclusive fishery limits unless he or she is authorised by law to do so.
(2) A person who contravenes subsection (1) commits an offence.”
31. The defendants point out that s. 10 forms part of Chapter 2 of the Act – the regulation of sea-fishing and they say that s. 10 cannot be read in isolation, but must be read in the context of the rest of the chapter and in particular must be seen in the light of section 8. That section is in the following terms:-
“8(1) It is not lawful for any foreign sea-fishing boat to enter within the exclusive fishery limits except for –
(a) a purpose or purposes recognised by –
(i) Community law,
(ii) international law, or
(iii) any convention, treaty or arrangement for the time being in force between the State and the country, to which the boat belongs,
[…]
(2) If a foreign sea-fishing boat enters within the exclusive fishery limits in contravention of subs. (1) the master of the boat commits an offence.”
32. For completeness sake, I should refer to the terms of s. 9 which are as follows:-
“9(1) If a foreign sea-fishing boat enters within the exclusive fishery limits for –
(a) a purpose or purposes recognised by –
(i) Community law,
(ii) International law, or
(iii) any convention, treaty or arrangement for the time being in force between the State and the country, to which the boat belongs,
or
(b) any other lawful purpose or purposes, then –
(I) the boat must leave the exclusive fishery limits as soon as the purpose for which the boat so entered has been answered, and
(II) any regulations made under subs. (2) and for the time being in force shall be duly observed.
(2) The Minister may make regulations in relation to the maintenance of good order amongst foreign sea-fishing boats for the time being within the territorial seas of the State and the persons on board such boats.
(3) If there has been in relation to a foreign sea-fishing boat which has lawfully entered within the exclusive fishery limits or in relation to the persons on board that boat, a contravention (whether by commission or omission) of subs. (1), the master of the boat commits an offence.”
33. Section 11 then deals with contravention of EC Regulations (Common Fisheries Policy), s. 12 deals with the management of the State’s fishing quota and s. 13 deals with management and regulation of State’s fishing opportunities and fishing efforts.
34. On a plain and literal interpretation of s. 8(1)(a)(iii), the Voisinage arrangement under discussion is an arrangement for the time being in force between the State and the country to which the boats belong. But the plaintiffs suggest that the word should be interpreted as meaning a legally enforceable instrument, pointing out that the surrounding words Convention and Treaty would be enforceable and they suggest that it is reasonable to assume that the three instruments referred to must all be enforceable. Further support, they say, can be found from the phrase “in force”. They point out that the Oxford English Dictionary refers to an archaic use of the term “arrangement” as a settlement of a dispute or claim. With all due respect to that argument, the word “arrangement” is a very ordinary straightforward one in daily use. As the word is used every day, it would encompass the Voisinage agreement or Voisinage arrangement of 1964/65. In that regard, it is noteworthy that the word “arrangement” appears not just in s. 8 of the 2006 Act, but that it also features in Article 5(2) of Regulation 1380/2013, which is in these terms:-
“In the waters up to 12 nautical miles from the baselines under their sovereignty or jurisdiction, Member States shall be authorised until the 31st December, 2022, to restrict fishing to fishing vessels that traditionally fish in these waters from ports on the adjacent coast, without prejudice to the arrangements for Union fishing vessels flying the flag of other Member States under existing neighbourhood relations between Member States and the arrangements contained in Annex 1, fixing for each Member State the geographical zones within the coastal bands of other Member States where fishing is pursued and the species concerned. Member States shall inform the Commission of the restrictions put in place under this paragraph.”
35. The language of Article 5(2) with its reference to arrangements echoes the language of the Regulation previously in place, Regulation (EC) No. 2371-2002 and in particular Article 17(2) thereof. The relevant provisions of s. 8 properly interpreted provide that it is not lawful for any foreign sea fishing boat to enter within the exclusive fishery limit except for a purpose recognised by an arrangement in place between the State and its neighbour. There is such an arrangement and the purpose for which entry is authorised by the arrangement is to fish. The alternative interpretation contended for the plaintiffs in truth, requires adding the words “not being fishing” after the word “purposes” in s. 8(1)(a). I can find no justification for writing in language that does not appear in the text. Instead the Act in its plain and ordinary meaning permits Northern Ireland boats to enter the exclusive fishing limits in order to fish on a reciprocal basis, a lawful purpose recognised by the Voisinage arrangement.
36. I have already referred to the fact that the O’Sullivan letters of the 13th September, 1965, had referred to continuing the present arrangement, while the 25th August, 1964, note had referred to leaving unchanged an arrangement then in place. It is striking that both sides independently used the word “arrangements” to describe the pre-existing situation. In truth, it seems to me that the 1964/65 documentation is in the nature of a memo of understanding agreeing to leave unchanged pre-existing arrangements.
Alternative Arguments
37. I turn then to the plaintiffs’ alternative submission, which is that even if there is a Voisinage arrangement in place that it does not apply to the type of fishing that is actually being carried out. Four factual issues are identified, in short these are a reciprocity requirement, a permanently resident requirement, the 75ft vessel length issue and a habitual fishing requirement. I turn now to consider these.
Reciprocity
38. In relation to reciprocity a number of points are made in support of the argument that the reciprocal requirement of the exchange of letters is not met. The plaintiffs point to the fact that Northern Ireland mussel vessels unlike Irish vessels do not have licences and the point is made that permits that are issued to Northern Ireland vessels are not the equivalent of licences. Again the fact that a Northern Ireland mussel farm can be the beneficiary of an allocation is pointed to. It is said there is a lack of reciprocity in the area in which fishing is permitted and that Irish licences do not on their face permit fishing for mussel seed in Northern Ireland waters and only permit fishing in Irish territorial waters. This argument does not take into account that the documentation clearly contemplates fishing in Northern Ireland waters as a phone number is provided to be contacted before exercising the right to fish in Northern Irish waters. Then, it is said, that the laws applicable in Northern Ireland would mean that it would be unlawful for the plaintiff to fish in Northern Irish waters. Moreover, they point to the fact that because the slipper limpet, described as a voracious predator, is present in Northern Ireland waters, which means those waters are closed, they are in practice prohibited by S.I. 477/2011 from importing mussel seed from Northern Ireland into Irish waters.
39. What all of these arguments have in common is that perhaps understandably, they focus on the current situation of Irish mussel fishing vessels. However, the arrangement in place is not species specific. The arrangement is a general one and covers all fish and is at that level that the issue of reciprocity requires to be considered. The fact that a particular species may be found in Irish waters and not in Northern Irish waters or vice versa is really neither here nor there. Equally, the fact that a particular fishery may be open or closed in respect of a particular species of fish at a particular time does not effect the fundamental situation which is that fishing in the waters around the island is permitted on a reciprocal basis.
Permanent Residence Issue
40. The argument that only boats owned and operated by fishermen permanently resident in the “six counties” arises from the language of the letters exchanged and specifically from the language used by Mr. O’Sullivan.
41. I have already commented on the fact that the language used by Mr. O’Sullivan and by Mr. Elliott diverges and that this would cause difficulty if what was involved was interpreting a contract. Indeed, if there had been an attempt to negotiate a binding detailed legal instrument it is very likely that the divergence would have been addressed. The argument though, ignores the fact that the structure of the fishing industry in Europe and indeed in Ireland has evolved in the half century since the exchange of letters occurred. It may well have been the case that in 1964 boats were owned and operated by individuals and that it was realistic to think in terms of permanently resident individual fishermen. However, almost 50 years on, where vessels are larger and more sophisticated, corporate ownership is now the norm as is illustrated by the fact that the corporate plaintiffs are each the owners of a vessel. It seems to me that the arrangement entered into is robust enough and flexible enough to deal with the structures of an industry which like other industries can be expected to evolve over time.
Vessels over 75ft
42. I have already addressed the issue in relation to vessel length and will not repeat what I have said. What was agreed or arranged in the mid 1960s was not an arrangement for boats less than 75ft in length, but rather an arrangement/agreement that provided for reciprocal fishing. At the time two different regimes applied to Irish boats above and below this length. Therefore insofar as Northern Irish boats were being permitted to fish in Irish waters on the same basis as Irish vessels it was inevitable that at the time a distinction would be drawn between Northern Ireland vessels above and below 75ft in length. However, as the regime applicable to Irish boats altered, so, given that the aim was to treat Northern Irish vessels in a like manner as Irish vessels were treated, the regime applicable to Northern Ireland boats also altered.
The Habitual Fishing Requirement
43. This issue has its origin in Article 9(2) of the London Convention 1966. That Article 9(2) provides as follows:-
“If a Contracting Party establishes the regime described in Articles 2 to 6 [making provision in respect of the 0 to 6 belt and the 6 to 12 mile belt], it may, notwithstanding the provisions of Article 2, continue to accord the right to fish in the whole or part of the belt provided for in Article 2 [the 0 to 6 mile belt] to other Contracting Parties of which the fishermen have habitually fished in the area by reason of voisinage arrangements.”
44. Again, I would draw attention to the use of the word “arrangements”. The plaintiffs for their part contend that mussel seed was not habitually fished in 1964 or in the period before that. That may well be so, however, the argument fails to appreciate that the arrangement relating to the seas around the island of Ireland was not mussel fishing agreement or arrangement, but an agreement or arrangement applicable to fish generally. The proof of that is that cockle fishing takes place in Dundalk Bay on foot of the arrangements and that small boats from border fishing ports north and south of the border exercise the right to fish pursuant to the Voisinage arrangements. What is required by the exchange of letters and indeed by the London Convention is that fishing should have occurred, not that there should have been habitual fishing of a particular species or habitual fishing involving particular fishing methods.
45. In summary then, I conclude that the fishing by Northern Ireland vessels is authorised pursuant to the terms of the Voisinage agreement. In conclusion I have to express some surprise that arrangements which have been in place for almost half a century are now being challenged and that the challenge comes at a time when relations between Britain and Ireland have never been closer and when north-south relations have never been better. I have spoken about the arrangements going back almost half a century, but I note that Clive Symmons writing on “The Sea Fishing Regime of the Irish Sea” (1989) 4 International Journal of Estuarine and Coastal law dates the arrangements from 1959. I am not entirely clear what occurrence that Mr. Symmons is referring to in choosing 1959, but it may be that it is a reference to the consideration of the issue by the Government to coincide with the coming into force of the Maritime Jurisdiction Act 1959. The memorandum brought to Government on the issue has been discovered. The memo details extensive fishing by what was described in the language of the time as six county fishermen in the Dunmore East fishery and the memo took the view that there was no compelling reason for altering the existing position in regard to six county fishermen within Irish limits. The decision taken by Government was to maintain what was described as the existing informal attitude. This offers further evidence that the all Ireland dimension to fishing is long established and at this stage deeply entrenched. I have already commented that I find it strange that the suggestion of reversing the long standing cooperation that has existed in relation to fishing comes at a time when Anglo Irish relations and North South relations have never been closer, the suggestion is made though, however, in my view the all island dimension is entrenched to the extent that it is inconceivable, having regard to the doctrine of separation of powers, that a court should now set aside an arrangement so well established. Change, if it is to come, is for the executive and/or the legislature. Accordingly, the plaintiffs’ claim fails.
Paul Barlow, Woodstown Bay Shellfish Ltd.,Michael Crowley, Riverbank Mussels Ltd.,Gerard Kelly, Fresco Seafoods Ltd.,Tardrum Fisheries Ltd., Alex McCarthy, and Halcome Merchants (Ireland) Ltd., T/A Alex McCarthy Shellfish v The Minister for Agriculture, Food and the Marine,The Registrar General of Fishing Boats, Ireland, and the Attorney General
466/2014
Supreme Court
27 October 2016
unreported
[2016] IESC 62
Mr. Justice O’Donnell
October 27, 2016
JUDGMENT
1 Mussels are now a familiar item on menus, from different cuisines around the world. In a less appetising form they have engaged the attention of these courts on a number of occasions in recent years: Lett & Company Limited v. Wexford Borough Council and ors [2014] 2 I.R. 198, Lough Swilly Shellfish Growers Co-operative Ltd & anor v. Bradley & anor [2013] 1 I.R. 227, Cromane Foods Ltd & anor v. Minister for Agriculture, Fisheries & Food & ors [2016] I.E.S.C. 6, and Dunmanus Bay Mussels Ltd. v. Aquaculture Licences Appeals Board [2014] 1 I.R. 403. This proliferation of litigation is a consequence no doubt of developments in commercial aquaculture and the complexities and restrictions of the fishing regime of the European Union. But, as the case law surveyed so extensively in this case demonstrates, disputes about the entitlement to take fish, including shellfish from the sea or tidal rivers (and elsewhere) for sustenance, or as a commercial enterprise and way of life, have been the subject of contention in Ireland both before and after independence. Indeed the consideration of the question of the legality of fishing in particular waters may involve questions as to the terms of Magna Carta, its reception in Ireland, the position in any locality as of the 12th and 13th centuries, and in some cases the terms of Brehon law and the organisation of pre-plantation Gaelic society.
2 At first sight, the issues for resolution in this case are of much more recent origin. For the last 50 years and, it seems likely, since the foundation of the State, fishermen resident in Northern Ireland have fished waters which, from time to time, have been designated as the territorial waters of the State. This fishing has been carried out with the knowledge and approval of the authorities here and, it appears in circumstances where reciprocal facilities were afforded to Irish fishermen in the waters adjoining the coastal area of Northern Ireland. This case raises the question of the legality of the practice of what may be described in general terms at this stage, as Northern Ireland fishermen, fishing in Irish territorial waters. This question arises in the context of mussel harvesting, which for a number of reasons has become much more commercially significant in recent times. For reasons which it will be necessary to set out at some length, I have concluded that the current practice of fishing or harvesting of mussel seed by Northern Ireland registered boats in the territorial waters of this State is not lawful, as it constitutes the exploitation of a natural resource which must by Article 10 of the Constitution be provided for by a law enacted by the Oireachtas. I conclude that there is no such law at present. It follows however from this conclusion however that there is no insuperable constitutional objection to making provision by law for such fishing. This is the narrow conclusion of the large issue in this case.
3 The plaintiffs are individuals and companies, involved in what is called bottom mussel fishing, which is to be distinguished from rope mussel fishing traditionally practised in the west of Ireland. In the 1990s bottom mussel fishing was located mainly in the Wexford area and in Cromane, County Kerry, and carried out traditionally by a small number of families. However, a number of factors appear to have led to the increased commercial exploitation of mussel fishing. It appears from the evidence and submissions, that among the critical factors influencing recent developments has been the fact that mussel cultivation has been recognised as providing an important opportunity for commercial aquaculture, ranking, in recent years, second only to salmon. At the same time, mussel harvesting is not, as yet controlled by the complex EU fishing regime. One further consequence of this is that this dispute is to be determined by the provisions of domestic law, some of it of considerable antiquity.
4 The familiar common mussel was first defined (Mytilus Edulis) by the Swedish botanist and zoologist Linnaeus in 1758 but was known long before that. Shell middens are indeed an important evidence of early human settlement in a number of locations in Ireland. The technique of bottom mussel fishing has changed little over time. It involves the collection of mussel seed at sea, and its transport to sheltered areas which have proved to be productive mussel beds, where the mussels can grow and where they can in due course be harvested. The nature of the mussel, and the features which allow it first to develop as a seed, be found at sea, and later to attach itself to the mussel beds and grow to maturity, was described in the evidence of Dr Julie Maguire, a witness on behalf of the plaintiff which I will attempt to synopsise. Mussels are bivalves, and unusually are male and female. They spawn at sea in an unusual way. They are not attracted to each other for purposes of fertilization, and instead must hit off each other at random. Fertilisation produces larvae which are carried in the sea for some weeks. However particularly in the Irish Sea, they do not travel far, indeed rarely more than 100 metres from their point of origin, or indeed from each other. At some point they lose energy and settle. Once that process begins, they start to produce a shell and then byssal threads which can attach to seaweed, mother mussels or a mussel bed.
5 Mussel cultivation is a simple, and as far as it goes, reasonably natural process, since the only human intervention is the harvesting of the mussel seed, and its transport to the mussel beds. Perhaps as a result it has rarely been subject to detailed legal consideration. The practice is however somewhat precarious. It is dependent upon an adequate source of mussel seed, the vagaries of the weather, and the quality of the water. Since at least the turn of the 21st century, the plaintiffs have become increasingly concerned at the depletion of mussel stocks. In particular, they blame practices of vessels registered in Northern Ireland which they consider have adopted a particularly aggressive and invasive method of mussel fishing. The problem is exacerbated by the fact that the traditional Northern Ireland mussel fisheries have been closed for some time because of infestation by a predator limpet. Not only does this close a potential fishery to the plaintiffs, but it tends to force the Northern Ireland boats to fish in the territorial waters of the State. The plaintiffs also suggest that the descriptions, “Northern fishermen” and “Northern Ireland boats”, are somewhat misleading: the plaintiffs assert that the vessels may be registered in Northern Ireland, and may be owned by companies which are incorporated there, but where the ultimate shareholding is owned by substantial foreign interests. In that sense, it is I think suggested that the permitted fishing by Northern Ireland registered vessels is not the maintenance of a historical practice predating partition or serving any modern interest of cross-border communication and reconciliation, but rather is being used as a flag of convenience for access by large foreign businesses to mussel fisheries from which they could, and should, otherwise be lawfully excluded.
6 I should emphasise that the Northern Ireland fishing interests of whom the plaintiffs complain, have not been party to these proceedings, nor has anyone given evidence on their behalf. Accordingly, I recite these matters merely as background to the complaints made by plaintiffs rather than as findings made by the Court. The justice, merit or accuracy of the complaints made by the plaintiffs is not a matter which is to be determined in these proceedings. The motivation of the plaintiffs in bringing these proceedings is a matter for them, and not the Court. The simple fact is that the undoubted decline in the mussel fisheries has led to a focus upon the Northern Ireland registered vessels, and to the plaintiffs raising the question of the legality of their continued fishing. That is the only matter to be determined by this Court. Indeed, a successful determination may not lead to any improvement in the mussel fishing business. It may transpire that the depletion of mussel stocks is not caused by the fishing practices of the Northern Ireland registered vessels. Similarly foreign interests might acquire Irish companies or Irish registered vessels, and conduct the same type of fishing. Even if the plaintiffs are successful in establishing that the current fishing by Northern Ireland vessels is not authorised by law, the State parties may elect to address that provision by an appropriate legal regime. Accordingly, while the plaintiffs’ concerns about the impact of fishing practices on the mussel stocks may have prompted them to raise the issue of the lawfulness of the fishing in Irish waters by Northern Ireland registered boats, there may be no causal connection between the two. Success in these proceedings may therefore bring no practical benefit to the plaintiffs. However, the narrow question for this Court, which has proved surprisingly difficult, is not whether the fishing for mussels in Irish territorial waters by boats registered in Northern Ireland is beneficial or harmful, but rather whether it is lawful?
7 That is however to state the question in its broadest form, and it is necessary to identify a number of refinements, even at this early point. What are understood to be ‘Irish territorial waters’ have changed over times, in a manner which is relevant to these proceedings. Furthermore, the question of the extent of territorial waters is also a matter of international agreement, and therefore the background to this issue has a component of international law.
8 The starting point in domestic legislation is surprisingly recent: the Maritime Jurisdiction Act 1959. An admirable overview of the evolution of this area of Irish law is to be found in O’Higgins ‘The Irish Maritime Jurisdiction Act, 1959’ (1960) 9 The International and Comparative Law Quarterly 325. The Maritime Jurisdiction Act 1959, perhaps anticipating developments at an international level, made separate provision for territorial waters and the exclusive fishing limit of the State, although initially, it provided the same limit for each. Thus section 3 of the 1959 Act provided that the limit of the territorial seas was three nautical miles from the coastline, allowing for certain internationally accepted conventions for measurement in respect of inlets and headlands. Section 6 of the Act provided that the exclusive fishing limit was to be the same. However, in 1964, presumably in response to the conclusion of the London Fisheries Convention of that year, the Act was amended, and section 6 was amended to provide for an exclusive fishery limit of 12 nautical miles. The Maritime Jurisdiction (Exclusive Fishery Limits) Order 1976 then extended the fishing limit to 200 nautical miles from the coast. The 200 nautical mile limit was also stated to be the exclusive economic zone of the State. Subsequently, section 2 of Marine Jurisdiction (Amendment) Act 1988 extended the outer limit of the territorial seas to 12 nautical miles.
9 The Sea-Fisheries and Maritime Jurisdiction Act 2006 consolidated and expanded upon much of the previous legislation. However for present purposes, the limit of the territorial seas remained at the 12 nautical mile limit whilst the exclusive fisheries limit was maintained at the 200 nautical mile limit. The 200 nautical mile exclusive fisheries limit is a matter of domestic law, reflecting in turn international conventions. The extent to which the 200 nautical mile limit can be said to be an exclusive fishing limit in fact is itself of course significantly qualified by the impact of European law which regulates very closely nearly all fishing in Irish waters and is accordingly now of probably greater daily practical significance for the fishing industry than the regime established in 1959. However, it is important for the purposes of this case, which does not involve European Union law to any substantial extent, to recognise and understand the underlying domestic and international law. Of particular relevance to this case are the terms of sections 8-10 of the 2006 Act, which provide as follows:
It is not lawful for any foreign sea-fishing boat to enter within the exclusive fishery limits except for—
(a) a purpose or purposes recognised by—
(i) Community law,
(ii) international law, or
(iii) any convention, treaty or arrangement for the time being in force between the State and the country to which the boat belongs,
or
(b) any other lawful purpose or purposes.
(2) If a foreign sea-fishing boat enters within the exclusive fishery limits in contravention of subsection (1) the master of the boat commits an offence.
Provisions in relation to foreign sea-fishing boats lawfully entering exclusive fishery limits.
If a foreign sea-fishing boat enters within the exclusive fishery limits for—
(a) a purpose or purposes recognised by—
(i) Community law,
(ii) international law, or
(iii) any convention, treaty or arrangement for the time being in force between the State and the country to which the boat belongs,
or
(b) any other lawful purpose or purposes,
then—
(I) the boat must leave the exclusive fishery limits as soon as the purpose for which the boat so entered has been answered, and
(II) any regulations made under subsection (2) and for the time being in force shall be duly observed.
(2) The Minister may make regulations in relation to the maintenance of good order amongst foreign sea-fishing boats for the time being within the territorial seas of the State and the persons on board such boats.
(3) If there has been in relation to a foreign sea-fishing boat which has lawfully entered within the exclusive fishery limits or in relation to the persons on board that boat, a contravention (whether by commission or omission) of subsection (1), the master of the boat commits an offence.
Unauthorised fishing while on board foreign sea-fishing boat within exclusive fishery limits.
10.—(1) A person on board a foreign sea-fishing boat shall not fish or attempt to fish while the boat is within the exclusive fishery limits unless he or she is authorised by law to do so.
(2) A person who contravenes subsection (1) commits an offence.”
10 The London Convention was agreed on the 9th of March 1964, ratified by the State on the 20th of September 1965, and entered in to force on the 15th of March 1966. The process of negotiation and agreement of the Convention appears to form not only the background to the statutory amendment effected in 1964, but also prompted some of the key events which have been the subject matter of these proceedings. That Convention was made between the Governments of Austria, Belgium, Denmark, the French Republic, the Federal Republic of Germany, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden and the United Kingdom of Great Britain and Northern Ireland. It provided for reciprocal recognition of common standards. Thus Article 2 recognised that the coastal state had an exclusive right to fish and exclusive jurisdiction in matters of fisheries within a belt of 6 nautical miles measured from the base line of its territorial seas. Article 3 provided that within the belt from 6 to 12 nautical miles from the baseline of the territorial sea, the right to fish would be exercised only by the coastal state and by such other contracting states as had habitually fished in that belt between the 1st of January 1953 and the 31st December 1962. Article 9 of the Convention, however also recognised the possibility of according fishing rights within the 0 to 6 nautical miles belt. Article 9.2 in particular provided:
“If a Contracting Party establishes the regime described in Articles 2 to 6, it may, notwithstanding the provisions of Article 2, continue to accord the right to fish in the whole or part of the belt provided for in Article 2 to other Contracting Parties of which the fishermen have habitually fished in the area by reason of voisinage arrangements.”
11 A voisinage arrangement is, as the name implies, an arrangement between neighbouring states under which fishermen (and it was a sign of the times in 1964 that it appears only one gender was contemplated) had fished in each other’s waters. This reflects no doubt, the fact that fishing is an occupation with long traditions predating land boundaries. There are no border posts at sea, and fish do not carry passports. A voisinage arrangement is little more than a sensible recognition at official level of practice and tradition whereby fishing boats did not necessarily remain within the national waters but fished neighbouring waters. Much of the attention in this case has been focussed upon correspondence exchanged in 1964 and 1965 between civil servants in Dublin and Belfast. In essence, the State defendants contend that that exchange of correspondence evidences a voisinage arrangement, which was contemplated by international law in the shape of Article 9.2 and was permitted by domestic law under the 2006 Act, so that fishing by Northern Ireland vessels in accordance with that arrangement was and is lawful.
The Exchange of Letters
12 It is necessary to set out the 1965 letters in full. The particular correspondence was it appears initiated by a letter of the 13th of September 1965 by a D E O’Sullivan, and was addressed to JV Bateman in the Ministry for Agriculture in Belfast:
“Dear Bateman,
With reference to our recent telephone conversation relating to the rights of your vessels to fish in our exclusive fishery limits, I wish to confirm that we propose to continue the present arrangement whereby your boats owned and operated by fishermen permanently resident in the Six Counties will be permitted to fish within our new limits.
Incidentally the position as regards our own boats is that in accordance with the Licensing of Sea Fishing Vessels Regulations 1960 (S.I. No. 4 of 1960) no vessel exceeding 75 feet in length may be used for sea fishing except under and in accordance with a licence issued under Section 9 of the Sea Fisheries Acts, 1952, as amended by the Sea Fisheries (Amendment) Act 1959. The present practice is to require vessels exceeding 90 feet in length or 400 H.P. to refrain from fishing within our exclusive fishery limits and this will apply to the inner six mile zone of the extended limits.
The position will be, therefore, that your vessels up to 75 feet in length overall may fish within our exclusive fishery limits subject only to the usual regulations which would affect our own boats also.
If there were any question of vessels exceeding that length fishing within the inner six mile zone of our limits, it would be necessary for them to hold a permit to do so from the Minister for Agriculture and Fisheries under the Maritime Jurisdiction Act 1959 (Section 8) as amended by the Fisheries (Amendment) Act, 1962 (Section 34).
Yours sincerely,
D.E. O’Sullivan.”
This was replied to some three months later:
“14th December 1965
Voisinage Arrangements underArticle 9(2)of the Fisheries Convention
Dear O’Sullivan,
Thank you very much for your letter to Bateman of the 13th of September. I am sorry it has taken us so long to reply.
I acknowledge your undertaking to the effect that Northern Ireland owned and operated fishing vessels will continue to be allowed to fish within your new limits and we assume these limits include your territorial waters.
We for our part confirm that we consider ourselves bound by the terms of paragraph 6 of the note of 25th of August 1964 from the Commonwealth Relations Office to your Government headed “London Fisheries Convention 1964 Extension of British Fishery Limits”.
Yours sincerely,
W.H.Elliott.”
The letter enclosed the following extract from the note of the 25th of August 1964 from the Commonwealth Relations Office.
“Voisinage
In accordance with Article 9(2) of the Convention Her Majesty’s Government propose to leave unchanged the arrangement under which vessels of the Republic of Ireland are permitted to fish for all descriptions of fish within the exclusive fisheries limits of the British Islands adjoining Northern Ireland except in so far as the said exclusive fishery limits lie within six miles (or during the transitional period, three miles) of the baselines along the coast of Scotland. This arrangement will apply as long as the authorities of the Republic of Ireland continue to accord to Northern Ireland vessels the same treatments they accord to vessels of the Republic of Ireland in waters around the coast of the Republic.”
13 These letters, and the extract from the memorandum of the 25th of August 1964, were the subject of intense scrutiny and debate in the course of these proceedings. It is useful I think to try and place them in their historical context. They were very much a product of their time; a time when it was assumed fish were caught on vessels crewed by men, on their own account, rather than as employees of limited companies, and when civil servants addressed each other only by their surname, and when the concepts of aquaculture, and large scale commercial exploitation of mussels, were far in the future. The correspondence came only shortly after the famous visit by Taoiseach Seán Lemass to Prime Minister Terence O’Neill in January 1965, which in the words of one commentator ended ‘a sterile cold war’ between the two Irish States (See Daly, Sixties Ireland (Cambridge: CUP, 2016), p.323 quoting Garvin, Judging Lemass: the Measure of the Man (Dublin: Royal Irish Academy, 2009).
14 While cooperation on fishing was an obviously desirable objective, the civil servants nevertheless had to navigate some dangerous waters. It is noteworthy how the correspondence from Dublin refers only to the “six counties” the Belfast letter for its part while referring to “Northern Ireland”, avoids using any name for the State represented by Mr O’Sullivan, relying instead of much use of the words “our” and “your”. Furthermore, the Belfast correspondence avoids recognising the precise territorial waters of the State: “We assume that these limits include your territorial waters”. (Emphasis added). It is probably true, that there was greater fear at this stage in Belfast than in Dublin that cooperation would provoke political opposition. However, the civil servants in Dublin had also to tread very carefully. While permitting ‘Northern’ fishermen to fish in Irish waters could be presented as generous, inclusive and consistent with an official one nation ideology, the reciprocal permission being afforded to Irish fishermen in Northern Ireland waters was much more problematic. Quite apart from the provisions of Article 2 of the 1937 Constitution, and the consistent refusal by the Dublin administration to recognise Northern Ireland (or indeed until 1965 to refer to it by name) the official position of the Irish Government at that time, and indeed as late as it appears as 1982 (see: Casey Constitutional Law in Ireland , 3rd Ed., (Dublin, 2000), pp. 40-41) was that the waters adjoining Northern Ireland were Irish territorial waters on the basis, that the provisions which allowed Northern Ireland to remove itself from the Free State established in 1922, only referred to the six north eastern counties, and not to any adjoining waters.
15 The sensitivities on both sides may be one of the reasons why the arrangement reflected in this exchange of correspondence was not widely known. It may be that in addition to a common interest in gaining access to fishing grounds, both administrations had a shared interest in avoiding any prolonged public focus on the fact of cooperation and its broader implications. Indeed it is suggested that the plaintiffs only became aware of the correspondence in the course of these proceedings. While it is not perhaps correct to say that the correspondence or its contents were either secret or concealed, they were certainly not widely publicised. This may also explain why, when in 1959, on one of the few occasions when public reference was made to these matters, in an announcement made by the Minister for Lands and specifically approved by the Government, it was merely stated that there was “an administrative arrangement for the time being” under which boats “not exceeding 75 feet in length, bona fide owned and operated by fishermen permanently resident in the six counties, would not be prevented from fishing within our exclusive fishery limits.” The arrangement is framed in the negative, (“would not be prevented”), as temporary, and a matter of grace and favour, and no reference was made to any reciprocal permission.
16 For present purposes a number of features of the correspondence are worthy of particular note. The correspondence suggests that an arrangement similar to the arrangement recorded therein had been in existence for some time. The catalyst for the 1965 correspondence appears to have been the adoption of extended fishery limits in legislation bringing into effect the terms of the London Convention, to which of course the Governments of Ireland, and of the United Kingdom of Great Britain and Northern Ireland had both been parties. The arrangement appears to have been considered by the United Kingdom side at least, as a voisinage arrangement. This is apparent from the explicit reference to Article 9 (2) of the Convention and the headings of both the Belfast letter and the Commonwealth Office note. That description does not appear to have been demurred from or disputed by the Irish side. While there appears to have been an agreement between both sides that there had been an arrangement in place and that it was to continue under the new regime, there are on examination some significant differences of detail and indeed areas which lack clarity. Perhaps most importantly, it is not clear whether the arrangement was limited to vessels “owned and operated by fishermen permanently resident in the six counties” as the Dublin letter stated, or extended to “Northern Ireland owned and operated fishing vessels” as the Belfast letter stated. Was any such arrangement limited to vessels under 75 feet? Does the arrangement operate only in the belt between 0 and 6 nautical miles from the coast (as Article 9(2) of the Convention contemplates), or more extensively? Is the arrangement dependent on reciprocity as the extract from the Commonwealth Relations Office suggests? The trial judge observed that these matters might be highly relevant if the issue for the Court was whether the letters created or evidenced an agreement enforceable in private law. However, he considered that the correspondence had to be approached on the basis that it constituted part of the international relations of the State and be judged by the standards and conventions of diplomatic relations and the law relating thereto.
17 Finally, it is important to recognise that while the focus of this case is the practice of mussel fishing, the arrangement recorded in the exchange of correspondence and relied upon by the State (and correspondingly challenged by the plaintiffs) refers to fishing of any species, and must be understood, and judged, in that light.
The Arguments of the Plaintiffs
18 The plaintiffs challenge the lawfulness of mussel fishing by Northern Ireland vessels on grounds ranging from high constitutional principle to closely argued narrow textual analysis of the correspondence. At the high point of the argument was the contention which occupied much of the argument in this Court, that under Article 10 of the Constitution, the mussel seed collected by fishing vessels in Irish territorial waters was a natural resource. In this regard, the plaintiffs relied not only on the natural understanding of that term which they said clearly extended to seed mussel and, perhaps, the capacity to collect it for cultivation, but also pointed to the specific use of that term and similar terms in a large number of official publications. It followed from this it was said, that mussel seed was a natural resource which belonged to the State pursuant to Article 10.1. Permission for fishing or harvesting of mussel seed amounted therefore to an exercise of ‘management’, ‘control’ or ‘alienation’ of such natural resource, which Article 10.3 of the Constitution required to be provided for “by law”, that is legislation enacted by the Oireachtas. Whatever else the correspondence of 1965 constituted or evidenced, it could not be said to be law.
19 A related constitutional argument was that even if the 1965 correspondence constitutes or evidences a voisinage agreement for the purposes of international law, it cannot be effective because it was not laid before the Oireachtas under Article 29 of the Constitution. Separately, the plaintiffs contend that even if the fishing for mussel seed is capable of being permitted in some way pursuant to a voisinage arrangement, the evidence here falls far short of establishing any such arrangement. Even if the correspondence was, in its terms, capable of being a voisinage arrangement, the plaintiffs seek to rely on the fact that the correspondence is not between sovereign governments or accredited representatives, but between civil servants in Dublin and Belfast. Therefore they say that any such arrangement cannot be a voisinage agreement contemplated by Article 9.2 of the London Agreement which is an agreement between the contracting parties to the agreement. Alternatively, if there is an arrangement constituted or evidenced by the 1965 correspondence, then the plaintiffs seek to contend that that arrangement is justiciable. If so, it is argued that it does not, on true construction, permit the type of fishing now carried out. In this regard the plaintiffs rely on the differences between the fishing practices now carried on, and what was envisaged in the 1965 correspondence, and also point to the absence of any possibility of reciprocal access to the waters around Northern Ireland for fishing for mussel seed, which the plaintiffs argue is a requirement of the arrangement. Finally, and separately, the plaintiffs raise a question of statutory construction. They contend that fishing by persons on board foreign fishing vessels is expressly prohibited by section 10 of the Sea Fisheries and Maritime Jurisdiction Act 2006. While section 8 of the same Act permits lawful entry into the exclusive fisheries limit by a foreign fishing vessel for purposes recognised inter alia by any “arrangement for the time being in force between the State and the country to which the boat belongs”, the plaintiffs repeat their arguments that for reasons already mentioned the 1965 correspondence does not either constitute such an arrangement, or permit entry by the Northern Ireland vessels for the purpose of fishing for seed mussel. The plaintiffs also argue however that section 8 permits entry into territorial waters by fishing vessels only and does not itself permit fishing by any person within the waters entered.
The Arguments of the State Defendants
20 The defendants take issue with almost every contention advanced by the plaintiffs. They argue that mussel seed cannot be considered a natural resource, at least for the purposes of Article 10. Historically, wild beasts, fowl and fish were “nullius in bonis” that is the property of no one. There was a public right to fish in the sea and in navigable waters. In that regard the defendants rely on Longfield on The Fishery Law of Ireland (Dublin: E Ponsonby, 1863) which observed at page 3:
“There were recognised as vested in all the subjects of the realm two well established rights, that of free navigation and free fishing.”
This statement was approved in the Irish courts after independence.
In R (Moore) v. O’Hanrahan [1927] I.R. 406, which was the opening act in the celebrated legal drama about the right to fish at the mouth of the Erne in County Donegal, Murnaghan J. quoted with approval a passage from Viscount Haldane L.C. in AG for British Columbia v. AG for Canada [1914] A.C. 153:
“[T]he subjects of the Crown are entitled as of right not only to navigate but to fish in the high seas and tidal waters alike… It is probably a right enjoyed so far as the high seas are concerned by common practice from time immemorial, and it was probably in very early times extended by the subject without challenge to the foreshore and tidal waters which were continuous with the ocean if, indeed, it did not in fact first take rise in them.”
21 The defendants contended that this public right to fish extended to shell fish and therefore to mussel seed, citing Royal Fishery of the Banne case (1610) Dav. Ir. 55. It was also argued that the act of giving permission to fish was not an alienation of any natural resource for the purposes of Article 10. The defendants also contend that the 1965 correspondence reflects a voisinage agreement, which is either not justiciable at all because it was entered in to by the Government in the exercise of the Executive’s power of control of foreign relations of the State, and the court should accordingly accord to it the level of restraint contemplated by decisions such as Boland v. An Taoiseach [1974] I.R. 338, and more latterly Horgan v. Ireland [2003] 2 I.R. 468. In any event the defendants also argue that the arrangement recorded in the correspondence is sufficiently flexible to cover the fishing carried out in recent times by the Northern Ireland vessels. On the question of the 2006 statute, the defendants contend that section 8 permits entry into territorial waters for a purpose including a purpose contemplated by “an arrangement in force” between the State and another state. That it is said refers to a voisinage arrangement such as the present, and if the purpose of such an arrangement is to permit fishing, such fishing is authorised by law and cannot therefore be a breach of section 10 of the Act.
The Plaintiffs’ Response
22 The plaintiffs respond to these contentions by raising further arguments of some complexity. They argue that the defendants’ suggested interpretation of the 2006 Act has the effect of ignoring or rendering void the specific prohibition contained in section 10 of that Act. They repeat their arguments that the exchange of letters does not in any event constitute an arrangement for the purposes of section 8. They also argue that mussels cannot be considered analogous to fish for the purposes of the principle of nullius in bonis. Instead they contend that mussels are sessile sedentary creatures which of their nature do not move far from the original point where they rest or are placed, and do not migrate, but rather attach themselves to the sea bed or rocks. In this regard they cited a judgment of Holmes J. for a unanimous US Supreme Court in McKee v. Gratz (1922) 260 U.S. 127. In any event, they contend that the principle of nullius in bonis did not survive the clear terms of Article 11 of the Free State Constitution and Article 10 of the 1937 Constitution. Finally, they argue that even if the principle of nullius in bonis still has relevance, it does not extend to or permit commercial activity, relying on Anderson v. Alnwick DC [1993] 1 W.L.R. 1156 and Alfred F Beckett Ltd. v. Lyons [1967] Ch. 449.
The Decision of the High Court
23 In a comprehensive judgment the High Court judge rejected the plaintiffs’ claim. He observed that it was somewhat surprising that a claim to exclude Northern Ireland fishermen should be advanced at a time when relations between the two parts of the island, and indeed between Ireland and the United Kingdom more generally, were at their most harmonious. He doubted that mussel seed could be considered a natural resource for the purposes of Article 10 of the 1937 Constitution. Rather, he considered that it was nullius in bonis. It could not be said that marine species are owned by the State as distinct from being capable of being managed by it. Most fish species (and the 1965 correspondence related to fishing generally) were migratory wild animals. Birds could also be considered a natural resource, but they roam freely and will sometimes cross state boundaries. States did not own such animals, valuable as they might be both as a source of food or tourism. Accordingly, the judge was doubtful that mussel seed could be regarded as resource as that term was used in Article 10.1, and even more doubtful that what was permitted to happen could be described in any real sense as alienation of such property. He rejected the plaintiffs’ contention that the traditional notion of nullius in bonis must be reconsidered in the context of the terms of Article 10 of the Constitution. There was he considered no hint of such a radical departure from a long established legal order. In particular, the trial judge focused upon the fact that the common law recognised a valuable public right to freely navigate and freely fish the seas and the estuaries and tidal rivers not in private ownership. It was he considered hard to believe that the Irish people in adopting a constitution, whether indirectly though a constituent assembly in 1922 or directly by popular vote in 1937, could ever have contemplated that they were setting aside a long established legal principle dating back from many centuries, and in the process surrendering rights their ancestors had enjoyed over the centuries.
24 In relation to the plaintiffs’ reliance on a general principle of legality, the High Court judge observed that the 1965 correspondence had occurred in the field of the international relations of the State with its nearest neighbours which was a particularly sensitive relationship, and that a particular degree of restraint was required for the courts in entering into foreign policy issues citing in this regard Boland, Horgan and Crotty v. An Taoiseach [1987] I.R. 713. However he considered that the issues raised by the plaintiffs went more to form than the substance of foreign relations and therefore the issues raised were justiciable albeit that a “very considerable margin of appreciation should be afforded to the government”. The arrangement evidenced or recorded in the 1965 correspondence was a type of agreement or convention of a technical administrative nature which did not require to be laid before the Dáil; relying in this regard on The State (Gilliland) v. Governor of Mountjoy [1987] I.R. 201. In addition, the High Court considered there was no breach of the 2006 Act, since section 8 expressly contemplated entry by fishing vessels for the purposes of an “arrangement”. Here the arrangement in question provided for fishing in accordance with the terms of that arrangement. Such an arrangement was not only contemplated by the London Convention, but also by European law and in particular Article 5(2) of Regulation 1380/2013. Since entry for the purpose of fishing in accordance with the arrangement was lawful, it followed that such fishing was to be considered authorised by law, and therefore not a breach of the prohibition contained in section 10 of the 2006 Act.
25 Having rejected the constitutional challenge and the plaintiffs’ interpretation of the 2006 Act, the trial judge then turned to the subsidiary arguments. These were that in the event that it was held that there was a valid voisinage agreement which could permit entry and fishing by certain Northern Ireland vessels, such an arrangement did not extend to the fishing being carried out by the Northern Ireland vessels in respect of mussel seed. This argument was advanced on four grounds: (i) the reciprocity requirement, (ii) a permanent resident requirement, (iii) a limitation of length to 75 feet, and (iv) the habitual fishing requirement. While these are subsidiary arguments of some technicality, they are in my view important in understanding the nature of the arrangement which was found to permit the seed mussel fishing in this case, and therefore have a larger significance for the issues in this case.
26 The plaintiffs alleged that the 1964 memorandum contemplated that rights to fishing were to be accorded so long as reciprocal rights were afforded by the Irish State. The plaintiffs contended therefore that reciprocity was an essential feature of the arrangement and pointed out, that as far as mussel fishing was concerned there was no reciprocity since the Northern Ireland mussel beds were closed due to the presence of a predator, the slipper limpet. The High Court rejected this argument because it considered that the arrangement applied to all types of fishing and required therefore merely that fishing be permitted on a reciprocal basis but did not require reciprocity at the level of individual species. The permanent residency issue arose because that was how the arrangement was described in the O’Sullivan letter (although not in the Elliott reply). However, the trial judge considered that the structure of the fishing industry had evolved in the 50 years since the correspondence and that the arrangement was “robust enough and flexible enough to deal with the structures of an industry which like other industries can be expected to evolve over time”. (Para. 41) A similar line of reasoning disposed of the plaintiffs’ argument that the vessels permitted had to be limited to 75 feet in length. The agreement was one for reciprocal fishing. Once the condition for Irish vessels changed, then the requirements applicable to Northern Ireland boats also altered.
27 Finally, the trial judge considered the plaintiffs’ argument that the voisinage agreement must be limited to forms of fishing and in particular fishing for species, which had been carried out habitually, prior to the correspondence and indeed the London Convention. This argument was based upon the terms of the London Convention which referred to habitual fishing and the rights of fishermen of a contracting state who had “habitually fished in the area by reason of the voisinage arrangement”. It was argued that Northern Ireland fishermen had not habitually fished for mussels prior to 1965, or to put it another way, Northern Ireland mussel fishermen had not habitually fished those waters prior to 1965, therefore the voisinage arrangement did not extend to such fishing. The trial judge considered that the arrangement was one which permitted access by Northern Ireland boats to areas which had been habitually fished by Northern Ireland vessels, and was not limited to species which had been fished in those waters. Accordingly the trial judge rejected the plaintiffs’ claim.
Observations
28 I sympathise entirely with the trial judge’s bemusement that at this stage of North-South relations, and indeed the relations between Ireland and the UK more generally, that the Court could find itself adjudicating upon a claim with an avowed object of invalidating an important area of cooperation between the jurisdictions. It is also possible to admire the skill of the officials and those involved in 1965 who achieved important cooperation at a practical level in the interstices between some apparently intransigent ideologically positions. It is also open to doubt that success in these proceedings will result in any improvement in mussel stocks or benefit the plaintiffs in any practical way. However the function of these courts is to adjudicate on justiciable controversies which are in dispute between parties. The issue here is not the desirability of cooperation, but whether it has been achieved lawfully, and that issue must be addressed squarely. In this regard I accept the High Court’s analysis of the arrangement. In particular I agree that reciprocity is only required at the general level of fishing, and is not required at the level of each species. I also accept that the arrangement must be a flexible one if it is to permit the fishing now carried out. The corollary is however that the present fishing is not within the precise terms of the 1965 correspondence. Furthermore it follows that the 1965 exchange cannot be said to either constitute the agreement or evidence its terms, but must be seen as a particular iteration of an underlying arrangement.
29 The range of arguments made is extensive, and the material daunting, not least, the extensive historical references not just as to public rights of fishery, but also the provisions of Magna Carta, and as will be seen, some aspects of Brehon Law. Furthermore, and notwithstanding the range of materials industriously collected and presented to the Court, it is difficult to escape the suspicion that it is only a fraction of all the available material on an area which as a matter of both law and fact involves historical inquiry as to matters far distant from the aquaculture business in a modern democratic State. The history of Irish litigation of fishing rights shows that even careful and well reasoned judgments based on expert evidence of the highest quality are not beyond criticism or doubt.
30 While the difficult question debated at some length between the parties as to whether mussel fishing could be said to be the management of a natural resource within the meaning of Article 10 of the Constitution, or merely an activity which can, but need not, be regulated by the State, is one which could have far reaching ramifications in relation to other resources and State property more generally, it may not have any significance at a practical level in this case. That is because, even if neither the mussel seed nor the surrounding waters are a natural resource and therefore State property within the meaning of Article 10, it was not doubted that the State may regulate the business of mussel fishing, licence access to it and generally control it in the public interest. The power of the State to regulate any activity is not dependent on it involving State property contemplated by Article 10. Any right to fish therefore may be subject to requirements as to licensing, quantity, size and season, conservation and more.
31 It is tempting therefore to seek to address this case on the most narrow possible basis, either by reference to the nature of the mussel itself or by reference solely to the question of statutory interpretation. It does not appear possible however to approach this case on the basis that mussel seed is a different category to fish. The mussels which the US Supreme Court to be sessile sedentary creatures were fully mature mussels taken from beds in privately owned river beds. The possibility of approaching this case as a narrow issue of statutory interpretation was a point made with economy and clarity by Mr. Aston on behalf of the defendants. He observed that at one level it did not matter if what was involved was the regulation of a natural resource and therefore the property of the State, or an activity which was merely subject to regulation. That is because the only consequence in this case of a finding that mussel fishing is the exploitation of a natural resource, is that the control of management and/or alienation of the resource is required to be provided for “by law” under Article 10.3. In the event that it is necessary to point to a law, then the defendants contend that the 2006 Act, and in particular sections 8 and 9 satisfies that requirement. Accordingly, if mussel fishing by Northern Ireland fishermen is permitted, it is not permitted by any voisinage arrangement at least by its own force, but rather through the medium of section 8. The question for the Court is not necessarily the interpretation of any arrangement at the level of international law, rather the interpretation of an Irish statute. If the 2006 Act properly construed permits fishing by the Northern Ireland vessels in issue, then it is suggested, it is largely irrelevant whether the statute is considered to be the regulation and control by law of a natural resource, or merely a piece of legislation regulating an economic activity in the public interest. On the other hand if the 2006 Act does not permit such fishing, then it is unlawful (since on this basis it would be prohibited by section 10), and on this approach the constitutional status of the mussel seed, is equally irrelevant. Accordingly it was somewhat belatedly suggested, the only question which required to be addressed in these proceedings was the issue of statutory interpretation.
32 Tempting though this argument is, I have concluded that it is not possible to reduce the case to this narrow focus and thus avoid the question of the interpretation of Article 10 of the Constitution. This question has been very fully argued and the issue is live. The High Court has made a determination upon it. Finally, and perhaps most importantly, even the narrow question of statutory interpretation cannot in my view be entirely divorced from the constitutional question. It matters, or at least may matter, whether the Act is approached as a “law” controlling managing or permitting the alienation of the property of the State, or a piece of administration merely regulating an area of activity.
33 However, it is I think possible to narrow the issues for determination. It is important to maintain two important distinctions when considering the issues in this case first, the distinction between international law and domestic law in a dualist system; and second, the distinction between the exercise of executive power under the Constitution and the exercise of functions or powers even by a member the executive) under legislative authority.
International Law and Domestic Law
34 The conduct of foreign affairs is an important executive function, and for that reason rarely comes before the courts. The government conducts diplomatic relations, discussion with other states, negotiates and executes treaties and conventions, and may enter into arrangements or understandings with other countries. Generally none of this requires legislative authority or power. Article 29 dictates very precisely the circumstances in which international agreements must be laid before the Dáil or receive approval by it, and it should be noted, any such approval required is that of the Dáil and not the Oireachtas more generally and is therefore a representative rather than a legislative function. In circumstances where the agreement, arrangement, understanding, or discussion can be implemented by executive action alone and without a charge on the State finances, then it can be implemented by executive action and without seeking permission or even approval in advance from either House of the Oireachtas, (although of course the Government is accountable to the Dáil and may in any case, seek its approval) If there is a dispute as to compliance with any treaty, convention, agreement or even arrangement between this State and another country, then that is a matter to be resolved at the level of international law.
35 In many cases however, the terms of an international agreement, to use the broadest term, may require implementation in domestic law. In a dualist system however an international agreement may bind the State at the level of international law, but it has no impact within the State unless implemented by domestic legislation. If not implemented or imperfectly implemented, that may mean that the State is in breach of its obligations at the level of international law, but that does not itself give rise to any duties or liabilities at the level of domestic law. The potential for an unintended distance between domestic legislation and international agreements, is lessened by the fact that those agreements are available as aids to construction of the legislation, and there is a sensible canon of construction that courts should seek to interpret implementing legislation so far as possible to avoid incompatibility with the international obligations being sought to be implemented. Nevertheless, domestic legislation cannot be construed contra legem, and if on its true construction, implementing legislation achieves some result not intended or sought by the international agreement, effect must still be given to it. In this case this means that the critical question is not whether there was an international agreement or as is asserted here, arrangement, or indeed its status or meaning in international law: the question is simply what Irish domestic legislation, and in this case the 2006 Act, permits or requires.
The Executive Function
36 Since the conduct of international affairs is an important executive function, the distinction between executive and legislative functions is also relevant in this case. That distinction is often blurred in the Irish context because the executive sits in the legislature and more often than not effectively controls it and in particular the process of legislation. It is not therefore as important in practical terms to maintain the distinction between matters which can be controlled by executive decision and those which require to be regulated by public general legislation, as it is in other countries with a more complete separation between those powers. Second, it does not appear the precise boundary between executive and legislative functions is one fixed immutably by the Constitution. The Executive is responsible to the Dáil. The Oireachtas may it appears legislate for areas previously controlled by executive action. It is not necessary to consider what if any are the limits to such legislative power. It appears that the executive power in Irish law to date is, as Professor Casey observed, the residue which is left when the judicial and legislative powers are subtracted: Casey, Constitutional Law in Ireland , 3rd Ed., (Dublin, 2000), pp. 230-231. Perhaps the clearest example of this is in the related field of the control of entry of persons to the State. Until the enactment of the Aliens Act 1935, this was an executive function. The executive granted passports to Irish persons, and allowed entry into the State to those which it had either agreed in advance to permit to enter, or was prepared to permit entry. One of the features which made the case of Laurentiu v. Minister of Justice [1999] 4 I.R. 26 so intriguing was the fact that after the passage of the Aliens Act, it appeared that little in substance had changed: the decision on entry or exclusion was one made by the Minister. But that case turned on the fact, that while the same decision was made by the same person, it was now being made by a Minister not in the exercise of an executive power, but rather as the delegate of the legislature. Crucially that meant that the legislature was required to set out principles and policies by which that power should now be exercised by the Minister, who was in this sense merely persona designata that is the person identified to exercise the power.
37 These distinctions are important in this case, because the lawfulness of entry into territorial waters and fishing therein pursuant to a voisinage arrangement, may depend not just upon the terms of any arrangement, but the time in history at which the entry occurred. Originally, the setting of territorial limits and the control of territorial waters was a classic executive function untrammelled by legislation. Indeed, territorial limits were originally set at a distance understood to be the limit of a cannon shot; that is the area which the sovereign was able to protect and control from land. Agreement and recognition of territorial limits was effected on a reciprocal basis between states. In a real sense, the territorial limits were determined not only be decision of the executive, but also its capacity and willingness to enforce them by action. If naval vessels confronted foreign vessels and escorted them from the waters, or sought to exercise rights of navigation in contested areas, and if any of these activities resulted in diplomatic protests or worse, all of this operated at the level of the executive function, and did not require any legislative authority, permission, or control.
38 It appears that it was only as late as 1959 that domestic legislation sought to fix territorial limits and fishing limits and also to regulate the circumstances of entry to those waters, and indeed create offences for breach. This of course is an entirely sensible development, and was in line with international developments since it means that vessels found in breach of the provision may simply be escorted from Irish territorial waters, but can be forced to land, and may then be prosecuted. This development has an important consequence for the issue we are considering. Prior to 1959 the lawfulness of entry of a foreign vessel to Irish territorial waters was a matter solely for the executive and accordingly its permission was sufficient to make lawful any entry and any activity. After the passage of the 1959 legislation, the issue became one involving not executive permission, but rather compliance with statute with the further consequence that the issue might come before the courts for resolution. This distinction may not have been obvious in 1965 at the time of the exchange of correspondence, particularly because as a matter of practicality, permission from the government might have been seen as sufficient for all practical purposes; but that practicality obscured the fact that after the passage of legislation the question of the lawfulness in Irish law of entry into and/or fishing by foreign fishing vessels in, Irish controlled waters, was not determined by whether the government had agreed to the particular activity, or even at international level had bound itself to permit such entry and fishing: the question had become whether such entry and fishing was compliant with the Irish legislation.
39 Taking this approach, it is possible in my view to reduce the issues in contention. In the first place while I fully appreciate the sensitivity of the relationships involved and the desirability at a constitutional and human level of advancing cooperation, it does not appear to me that this case involves the courts adjudicating upon the conduct by the State of its foreign relations, or that there is any scope for allowing to the government a wide margin of appreciation. Accordingly it is not necessary to consider the line of authority from Boland v. An Taoiseach through Crotty to Horgan. This case does not seek either to restrain the government from entering any new arrangement or to compel the government to withdraw from an existing one. Nor does it seek to make the agreement justiciable on its own terms at the suit of private parties. The question here is the interpretation of Irish domestic legislation which it is asserted, makes reference to an international arrangement. The question of what that statute means and its enforcement, is a matter for domestic law subject to the interpretative aids and canons of construction already referred to. If the Court is called on to interpret a voisinage agreement, it is only because its terms have become incorporated in domestic law whether by recitation of the terms in the text, incorporation by reference, or as is alleged here, by use of the single word “arrangement” in section 8 of the 2006 Act.
40 Four matters at least are clear. First it is in my view beyond argument that there was and is a voisinage arrangement in being between the Government of Ireland and the Government of the United Kingdom of Great Britain and Northern Ireland which is evidenced or referred to in the 1965 Dublin – Belfast correspondence. That is after all how both parties to the arrangement have described it: the British side explicitly in the correspondence itself, and the Irish government in asserting a voisinage arrangement in this case. Furthermore, the references to Article 9(2) of the London Convention, and the coincidence of timing between the announcement and government memorandum in 1959 at the time of passage of the 1959 Act, and the exchange of correspondence in 1965 in close conjunction with both the London Convention and the 1964 amendments, strongly support this description. Second, for the same reason, I am satisfied that the reference first in section 221 of the 1959 Act, and now repeated in section 8 of the 2006 Act, to an entry pursuant to an arrangement in force, includes, and may well have been intended to refer specifically to the voisinage arrangement asserted here. It may be as a matter of international law such an unpublished arrangement is no more than a “gentleman’s agreement” as suggested by Symmons, “The Sea Fishery Regime of the Irish Sea” (1989) 4 Int Jo Estuarine and Coastal Law 192 and indeed it does seem to be quite an informal matter, particularly when compared to the elaborate ceremonies attaching to the negotiation, signing and ratification of international treaties. I doubt that there would be any consequences at the level of international law if either side resiled from or failed to perform the arrangement. The issue here however is its effect in domestic law, as providing authorisation by law for fishing by foreign sea fishing vessels. I should also say that I am satisfied that the correspondence was authorised and approved by the UK Government and therefore no issue arises as to the capacity of the parties.
41 Third, I am satisfied that the arrangement evidenced or recorded in the 1965 correspondence is not invalid for failure to comply with the formalities required by Article 29 in respect of treaties binding the State. That Article makes a very careful distinction between different levels of international agreement, and in particular between those international agreements (other than those of purely technical or administrative character), which bind the State and must be laid before the Dáil, and those which involve a charge on public funds which must be approved by the Dáil. This careful distinction is fully consistent with theory of parliamentary power underpinning the Constitution and the primary role of the Dáil in financial affairs. I agree with the High Court that the arrangement is not invalid and cannot be impugned on the grounds that it was not laid before the Dáil in accordance with Article 29. I consider however that this is because it was an arrangement in the mature of a gentleman’s agreement rather than an “agreement which binds the State”, and thus the provisions of Article 29 were not triggered at all, rather than an agreement of a technical or administrative nature which did not require to be laid before the Dáil, although nothing turns on this for the purposes of this case.
42 Fourth and finally, I am satisfied that the reference in section 8 of the 2006 Act (reproducing in this regard the terms of section 221 of the 1959 Act) to an “arrangement” is sufficiently broad to cover voisinage arrangements and, indeed, given the coincidence of timing, that the term may well have been intended to refer specifically to the voisinage arrangement in respect of fishing in the coastal waters of Ireland and Northern Ireland. The question in this case therefore becomes whether the fishing for mussel seed by persons on Northern Ireland vessels (and perhaps the entry into the territorial waters of such vessels for that purpose) can be said to be permitted by the terms of sections 8 to 10 of the 2006 Act. That issue may depend in part upon whether such fishing constitutes the management, control or alienation of a natural resource or the exercise of a franchise in respect thereto, and if so what the Constitution requires for such control, management or alienation.
Article 10 of the Constitution
43 The full text of Article 10 of the 1937 Constitution provides:
“1 All natural resources, including the air and all forms of potential energy, within the jurisdiction of the Parliament and Government established by this Constitution and all royalties and franchises within that jurisdiction belong to the State subject to all estates and interests therein for the time being lawfully vested in any person or body.
2 All land and all mines, minerals and waters which belonged to Saorstát Éireann immediately before the coming into operation of this Constitution belong to the State to the same extent as they then belonged to Saorstát Éireann.
3 Provision may be made by law for the management of the property which belongs to the State by virtue of this Article and for the control of the alienation, whether temporary or permanent, of that property.
4 Provision may also be made by law for the management of land, mines, minerals and waters acquired by the State after the coming into operation of this Constitution and for the control of the alienation, whether temporary or permanent, of the land, mines, minerals and waters so acquired.”
It is appropriate to note at this point the breadth of the statement contained in Article 10. Not only is the word “all” used repeatedly (“all natural resources”, “all land and all mines, minerals and waters”) but the subject matter of the Article is itself far-reaching. “Natural resources” necessarily include the air, and forms of potential energy and therefore extended to matters which were conceivably not understood in 1937 as natural resources, or capable of exploitation. Furthermore, the Irish text puts it in, if anything, broader terms, referring to “Gach ábhar maoine nádúrtha” which as Ó’Cearúil points out, literally translated refers to every natural source of wealth: Micheál Ó Cearúil, Bunreacht na hÉireann, A study of the Irish text , The All-Party Oireachtas Committee on the Constitution, (Dublin, 1999), p.95. It seems the breadth of the formulation of Article 10 may have encouraged the broad interpretation given by the majority in Webb v. Ireland [1988] I.R. 353 to the term “royalties”.
44 The inspiration for Article 10 is clear. It is largely a reworking of the provisions of Article 11 of the Irish Free State Constitution of 1922:
“All the lands and waters, mines and minerals, within the territory of the Irish Free State (Saorstát Éireann) hitherto vested in the State, or any department thereof, or held for the public use or benefit, and also all the natural resources of the same territory (including the air and all forms of potential energy), and also all royalties and franchises within that territory shall, from and after the date of the coming into operation of this Constitution, belong to the Irish Free State (Saorstát Éireann), subject to any trusts, grants, leases or concessions then existing in respect thereof, or any valid private interest therein, and shall be controlled and administered by the Oireachtas, in accordance with such regulations and provisions as shall be from time to time approved by legislation, but the same shall not, nor shall any part thereof, be alienated, but may in the public interest be from time to time granted by way of lease or licence to be worked or enjoyed under the authority and subject to the control of the Oireachtas: Provided that no such lease or licence may be made for a term exceeding ninety-nine years, beginning from the date thereof, and no such lease or licence may be renewable by the terms thereof.”
45 Once again, the source of this language is not in dispute. In Leo Kohn’s The Constitution of The Irish Free State (London: George Allen & Unwin Ltd., 1932), pp. 172-174, it is stated that this Article 11 was inspired by the terms of the Democratic Programme of 1919:
“Of the declarations embodying a programme of social, economic or educational reform, which are so characteristic of modern Continental constitutions, the Irish Constitution contains only two, a declaration asserting the right of all citizens of the Free State to free elementary education and a general provision postulating the nationalisation of the natural resources of the country. Both were inspired by those socialistic tendencies which, as shown in a preceding chapter, exercised a potent influence on the framing of the Irish revolutionary program. Efforts were made by the Labour Party in the course of the debates in the Constituent Assembly to secure the inclusion in the Constitution of the radical postulates of Connolly’s creed as reaffirmed in the “Democratic Programme” of the first Dáil, but the outlook of the majority of the Assembly was too positivist to favour the enunciation of far-reaching principles… The provisions of Article 11, proclaiming the succession of the Free State to the beneficiary rights in the lands, waters and mineral resources previously vested in the British Crown and its title to the control of all the natural resources of the country and the income derived therefrom, represent only a very incomplete realisation of the socialistic postulates of the “Democratic Programme” of 1919. The Article, which in the Draft Constitution merely prohibited the alienation of State rights in natural resources of national importance and subjected their exploitation by private agencies to State supervision, was considerably amplified in the Constituent Assembly. In its present form is legal import is twofold. It establishes, in the first instance, the legal succession of the Free State to all the rights and lands, waters, mines and minerals within the territory of the Free State which were previously vested in the British Crown or any Department of State or held for public use or benefit. In the second place, the Free State is invested with a general title to the control of all natural resources of the country, including the air and all forms of potential energy and of all royalties and franchises derived from their exploitation… Though this falls considerably short of the comprehensive postulates of the revolutionary programmes, the terms of the Article are wide enough to enable a progressive nationalisation of the natural resources of the country to be effected.”
46 It also appears that the thinking behind both Article 11 of the Free State Constitution and Article 10 of the Constitution was, if not influenced by, at least compatible with early 20th century Catholic social theory. Hogan’s The Origins of the Irish Constitution , 1929-1941 (Dublin: Royal Irish Academy, 2012) contains correspondence with the principal drafter of the Constitution from various bodies proposing a text in very similar form (which incidentally, also made specific reference to fisheries), and cross-referring to certain encyclicals, and in particular Quadagesimo Anno. In this sense, it might be said the socialist thinkers who influenced the Democratic Programme and the Catholic social theorists of the early 20th century, shared a scepticism of unbridled rights of private property.
47 Articles 11 of the Irish Free State Constitution, and 10 of Bunreacht na hÉireann have rarely been the subject of consideration in litigation or academic works. This is not surprising. They come from those portions of the Constitutions which are intended to operate at a high and almost abstract level asserting the existence of a Nation and its attributes. That of course was of very considerable importance in 1922 and again in 1937. The difficulty of identifying the impact of the Articles is perhaps unavoidable given the level of abstraction of the statement and the source of the language and concepts used, which operated at a more theoretical than practical level.
48 It is clear that in ordinary language the harvesting of mussels from territorial waters would readily be understood as the ‘management’ or ‘control’ and perhaps even ‘alienation’ of a natural resource either because the seed itself is seen as a natural resource, or because the waters from which it is taken, or the capacity to take it is the natural resource. Indeed this is so readily accepted as a matter of ordinary language that is rarely necessary to identify precisely the natural resource involved. There is no doubt that at the level of language employed in everyday use, the harvesting of mussel seed in territorial waters of the State would be seen as the exploitation of a natural resource. This point was not seriously challenged by the State parties, and the plaintiffs were able to point to a number of official publications using just this language in respect of aquaculture generally and mussels in particular. The defendants argue however, and the trial judge appears to have accepted, that the harvesting of such seed did not come within Article 10 because of two related concepts of some antiquity: first, that mussels, like fish and wild animals were “nullius in bonis”, and second that there was a well recognised public right of navigation, and in particular fishing, in territorial waters. If mussel seed was a natural resource, the argument ran, then it followed from Article 10 that it was the property of the State, which it was said was inconsistent with it being nullius in bonis. If this was so, it was argued that the ancient common law right of the subject to free fishing in the sea which had been enjoyed prior to 1922 was lost on the coming into force of the Constitution of that year. It was argued, and the High Court judge appears to have accepted, that the drafters of the two Constitutions and those who adopted them, should not be understood to have altered a well established principle of law which was connected to an ancient right enjoyed by the People themselves.
49 These arguments involved consideration of decisions of considerable age, and some difficult concepts and distinctions. The difficulty is if anything compounded by the arguments deployed by the plaintiffs in reply. The plaintiffs argued first that either mussel seed could not be considered nullius in bonis because they did not move or migrate in the manner of animals or birds, but rather attached themselves to land or rock or other objects. Accordingly it was said they are much more akin to seaweed which the plaintiffs contended was not nullius in bonis, arguing that this must be taken to be the outcome of the decision in Brew v. Haren (1877) 11 I.R.C.L. 198, which must be understood as having either overruled, or distinguished to vanishing point, the prior decision of R v. Clinton (1869) 4 I.R. C.L. 6. Alternatively, the plaintiffs argue that the principle of nullius in bonis could not survive the clear words and intent of Article 11 of the Free State Constitution and therefore Article 10 of the 1937 Constitution which was to secure ownership of natural resources by the State for the People themselves. Finally, it was also argued that the principle of nullius in bonis did not extend to commercial activities.
50 The position in relation to public fishing rights was even more complex. The question arose because it was necessary, it was said, to consider the position at common law in relation to fishing on the seas at least in territorial waters, prior to the enactment of the 1922 Constitution. The High Court judgment laid emphasis on the statement in the AG for British Columbia v. AG for Canada [1914] A.C. 153, already quoted above where Viscount Haldane said at page 169:
“[T]he subjects of the Crown are entitled as of right not only to navigate but to fish in the high seas and tidal waters alike. The legal character of this right is not easy to define. It was probably a right enjoyed so far as the high seas are concerned by common practice from time immemorial, and it was probably in the very early times extended by the subject without challenge to the foreshore and tidal waters which were continuous with the ocean, if, indeed it did not in fact first take rise in them. The right into which this practice has crystallised resembles in some respects the right to navigate the seas or the rights to use a navigable river as a highway, and its origin is not more obscure than that of these rights of navigation. Finding its subjects exercising this right as from immemorial antiquity, the Crown as parents patria no doubt regarded itself bound to protect the subject in exercising it, and the origin and extent of the right is legally cognisable or properly attributable to that protection, a protection which gradually came to be recognised as establishing a legal right enforceable in the Courts.”
51 It is indeed a matter of interest that much of the common law relating to fishing rights has been established in cases relating to contested fishing rights on Irish rivers. Thus, Viscount Haldane’s statement was itself made in the context of approving the judgment of Lord Blackburn in Neill v. Duke of Devonshire [1882] 8 App. Cas. 135. That was a case which involved a challenge to fishing rights claimed by the Duke of Devonshire in the Blackwater river which were acquired by the Duke by a title stretching back to the Earls of Desmond, a grant by Queen Elizabeth to Sir Walter Raleigh, his attainder, and successive letters patent of King James the 1st. Lord Blackburn cited at page 177 with approval Hale’s De Jure Maris:
“The right of fishing in this sea (i.e. the narrow seas adjoining the coast) and the creeks and arms thereof, is originally lodged in the Crown, as the right of depasturing is originally lodged in the owner of the waste whereof he is lord or where, or as the right of fishing belongs to him that is the owner of a private or inland river… But though the king is the owner of this great waste, and as a consequent of his propriety hath the primary right of fishing in the sea and the creeks and arms thereof, yet the common people of England have regularly a liberty of fishing in the seas or creeks or arms thereof, as a public common of piscary; and may not without injury to their right be restrained of it unless in such places creeks or navigable rivers where either the king or some particular subject hath gained a propriety exclusive of that common liberty.”
52 It was necessary to address these arcane issues because they became relevant when disputes arose over the entitlement to fish in estuaries and tidal rivers; a matter which was particularly contentious in Ireland both before and after the achievement of independence. The public right of fishing could only be displaced by proof of title to a private fishery. In most cases of course owners of the fishery were able to point to documentary title of considerable age purporting to transfer rights of fishery. However, that in turn was subject to what were understood to be the provisions of Magna Carta, and in particular the provision that “no banks or rivers shall be defended from henceforth but those which were in defence at the time of King Henry our grandfather, by the same places, and by the same bounds, as they were wont to be in his time”. As Kennedy C.J. observed in R (Moore) v. O’Hanrahan, the expression “in the time of King Henry our grandfather” became afterwards equivalent to “before the time of legal memory” by the effect of the Statute of Westminster (3 Edw. I)(1275). It appears from the same judgment that similar provisions were contained in the version of Magna Carta that was sent to Ireland, that of 1216 1 Henry III. This provision had been interpreted for some time as a provision precluding the royal grant of new fisheries in tidal waters. This was so even though as Lord Blackburn observed in Neill v. Duke of Devonshire [1882] 8 App. Cas. 135, at pp. 177-178, that there must be “considerable doubt as to whether the 16th chapter of Magna Carta did more that restrain the writ de defensione ripariae whereby when the king was about to come into a county all persons might be forbidden from approaching banks of the rivers, whether title or not, and that the king might have his pleasure in fowling and fishing therein.”
53 Magna Carta, for all its celebration in the constitutional history of the common law world was, after all, more an agreement between the king and his nobles, than any general statement of the rights of more humble subjects. At a general level there might perhaps be much to be said for Lord Blackburn’s interpretation. However, in the leading case of Malcomson v. O’Dea (1863) 10 H.L.C. 591, the House of Lords had held that Magna Carta was to be interpreted as a prohibition on the creation of new exclusive fisheries by royal grant, though all fisheries were left untouched which had made several fisheries to the exclusion of the public not later than the time of legal memory that is the reign of Henry II. The legality of title to any private fishery in tidal waters depends therefore on the existence of a private fishery before the time of legal memory. However, it was to be presumed from evidence of the long user of an alleged private fishery by an individual or body that such fishing had been carried out lawfully rather than unlawfully and therefore from a title preceding Magna Carta. Accordingly, and crucially, the onus lay on anyone challenging the documentary title to demonstrate positively something which in general terms must have been quite difficult, that such a fishery was based upon an original grant after Magna Carta and in breach of its terms, rather than a continuation of a presumed lawful user. By the use of this presumption, the common law allowed an owner of a fishery who could show that his predecessors had been in possession for some time, to maintain rights of fishery, notwithstanding the problems posed by the understanding of Magna Carta..
54 Thus, in the two leading cases, the House of Lords was able to hold that fishery rights existed in the tidal areas of the Shannon, Malcomson v. O’Dea [1862] 10 H.L.C. 591, and in the river Blackwater, Neill v. The Duke of Devonshire (1882) 8 App. Cas. 135. However, while the holder of the documentary title could be reasonably secure in England or in those parts of Ireland which had long been subject to the common law, this route was likely to prove more difficult in those areas of Ireland which had not been subject to the Crown and common law at the time of Magna Carta, and therefore where there certainly could not have been a royal grant prior to the time of legal memory. In such cases it was necessary to show that it was possible for rights of fishery to exist under the legal system which preceded the common law, either perhaps the law of the Ostmen, the Danish settlers in Ireland as referred to in the case of the Shannon (Malcomson v. O’Dea), or more particularly in Ulster or Connacht, under the Brehon Law. As it happened these cases fell to be decided after independence, at a time when it might be said the courts were more sceptical of land owners claims to private fishery rights than the respective Houses of Lords which had decided the Shannon and Blackwater cases in Malcomson v. O’Dea and Neill v. The Duke of Devonshire. The situation was further complicated because as Murnaghan J. pointed out in R(Moore) v. O’Hanrahan [1927] I.R. 416 at p.444:
“The salutary doctrine of the Crown as parens patriae was bound to protect the public rights of fishing did not, unfortunately, prevail in this country, and it is common knowledge that many of the valuable fisheries in tidal waters have been granted to private individuals. This is a matter of history.”
55 The first case decided after independence concerned fishery in the tidal waters of the River Erne at Ballyshannon, County Donegal. The fascinating story of these proceedings and the individuals involved is set out in Thomas Mohr, ‘Brehon Law before Twentieth Century Courts’ (2002) 16 Peritia 352. A challenge was made to the asserted fishing rights of the proprietors of the Erne Fisheries who could trace their title to a grant of the landed estates at court. The District Court refused to adjudicate on the dispute on the basis that an issue of title was involved. The Supreme Court (Kennedy C.J. and Murnaghan J.; Fitzgibbon J. dissenting) overturned a decision of the High Court and refused an order of mandamus directing the District Court to hear and determine the matter (R (Moore) v. O’Hanrahan).Thereafter proceedings were initiated by the proprietors of the fisheries seeking declaration as to the existence of fishing rights. The proceedings involved considerable expert evidence from the leading historians and Celtic scholars of the day, including Professor Eoin MacNeill, and Professor Dan Binchy who was to become perhaps the preeminent Celtic scholar in the field of Brehon Law. This evidence was designed to attempt to establish that there was no possibility of the grant of individual private fishery rights under Brehon Law. This evidence was accepted by the Supreme Court on appeal, and resulted in a remarkable decision that the plaintiffs, the holders of documentary title, for which they had paid a considerable sum, had no title to the fishery in the tidal waters of the Erne. Mohr records that when news of the Supreme Court decision ([1934] I.R.44) reached Ballyshannon, it was the subject of public celebrations, the flying of flags and banners, and the lighting of tar barrels. This is a tradition which, like much of the complex and interesting law surrounding fisheries, appears to have fallen largely into disuse. This case of course became if anything even more well known, when the disappointed Plaintiffs sought to appeal the decision to the Privy Council: Moore & ors v. Attorney General of Ireland & ors [1935] I.R. 472., which is the last occasion on which a judgment of that court is to be found in the Irish reports.
56 In Little v Cooper [1937] I.R. 1, it was held by the High Court that a valid private fishery did exist in the tidal waters of the River Moy in County Mayo. However, later again, in Foyle and Bann Fisheries Ltd & anor v. Attorney General [1949] 83 I.L.T.R. 29, Gavan Duffy J. heard further extensive evidence from experts such as Dr. Ruthven, Dr. James Henchy (who it seems likely was the future Henchy J. who sat with such distinction on this Court), and Professor Binchy who had the intellectual honesty to give evidence that a further extensive study had led him to the conclusion that the position advanced in the Erne Fisheries case as to the state of Brehon Law, was incorrect. Gavan Duffy J. held that the documentary title of the plaintiff to a fishery in a branch of the Foyle which lay wholly in County Donegal was not valid, at least against the public right, holding that the onus of proof lay on a party asserting a private right of fishery in tidal waters against the public.
57 Over this period in the different cases, the courts heard evidence from many of the great figures in the fields of early Irish studies, and celebrated historians, but almost inevitably, without achieving any agreed position or indeed consistency of result. It thus appears that the Shannon, Blackwater and Moy have valid private fisheries in the tidal waters whereas the Erne in Ballyshannon and the Foyle in that part of County Donegal did not. In particular this extensive litigation did not shine much light on the extent of Article 11 of the 1922 Constitution, notwithstanding some references to it by both Kennedy C.J. and Murnaghan J. (who had been on the drafting committee in 1922) and a later insightful reference by John A. Costello, by then a former Attorney General, in the Dáil debates on legislation in the aftermath of the Erne fisheries case.
58 These are important cases from the point of view of the law relating to fishing, and are fascinating pieces of legal history which also cast light upon Irish history more generally of the late 19th and early 20th century. However, I do not think that they resolve this case. Given the uncertainty that these cases display as to both the underlying history, in the field of Brehon Law, and indeed as to the terms of Magna Carta, they are if anything cautions against broad generalisations beyond what is specifically in issue in a particular case. All of this perhaps only illustrates Binchy’s mournful observation on the publication of his magisterial work on the Brehon laws: “what Maitland said of the Anglo-Saxon sources is even more relevant to the native Irish law; (“many investigator will leave his bones to bleach in that desert before it is accurately mapped”). I had hoped to provide subsequent explorers with a very rough sketch map. But as things are I can only offer them a ticket of admission to the desert”.
59 It is important therefore to recall the object for which this learning is deployed. It is argued that if mussel seed, as the plaintiffs contends, is to be treated as a natural resource for the purposes of Article 10 of the Constitution, it must then follow that it “belongs to the State”, which it is said is incompatible with the concept of fish as nullius in bonis, and the closely related doctrine of the public right to fishing, both in tidal waters and more importantly the seas within territorial limits. The final step in the reasoning then is to argue that the people who adopted the 1937 Constitution and their representatives who adopted the 1922 Constitution in a constituent assembly, could not have intended to give up an important public right of great antiquity, or indeed interfere with a settled provision of law. Therefore the otherwise broad terms of Article 10 must be given a more narrow meaning so that the term “natural resource” did not include fish, including in this respect mussel seed.
60 I find this process of reasoning more than a little artificial, and ultimately unpersuasive. First, I think it is indeed unlikely that either Article 11 of the 1922 Constitution or Article 10 of the 1937 Constitution were drafted against a background of detailed consideration of the ancient and complex common law of fishery rights. But if that was the case, it would I think have been more likely that express mention would have been made of the manner in which fishery rights were to be dealt with under the Constitution given the fact that they were a matter of some contemporary contest, rather than leave them to be apparently covered by words of general application, the limitation on which would only be known to those with a detailed knowledge of aspects of fishery law- an area that was not in any event free from controversy. Furthermore, the inspiration for Article 11 of the Free State Constitution is acknowledged to be the provisions of the Democratic Programme which were influenced by socialist thinking which, as of 1919, was quite radical. It certainly seems unlikely that either the drafters or the people either in 1919 or 1937 intended to restrict or interfere with any public right of fishing. However, they may not have considered residual state ownership of natural resources as declared in 1922 and 1937 incompatible or inconsistent with, or in any way inimical to any such right.
61 I would draw a somewhat different conclusion from the historical argument. There is no reason to believe that the drafters or the people adopting the Constitution considered they had to choose between including fishing within the definition of what could be considered the exploitation of a valuable natural resource, and any existing public rights of fishery. Rather I would conclude from the broad and general terms of Article 11 of the Irish Free State Constitution and its 1937 successor, and the absence of any other specific reference elsewhere in either Constitution, that the drafters, and those who adopted the Constitution, did not consider there was any incompatibility between residual state ownership of natural resources encompassing fishing in territorial waters, and existing public rights. The structure of the Constitution, and its known sources would lead me to seek an interpretation which maintains both that fishing in the territorial waters is the exploitation of a natural resource and the continued existence of public rights of fishery rather than to consider that we are forced to choose one to the exclusion of the other.
62 The breadth of the statement in Article 11 of the 1922 Constitution and Article 10 of the 1937 Constitution is striking. That must inform the interpretation of both Articles. Article 11 of the Irish Free State’s Constitution refers to “ all lands and water … within the territory of the Irish Free State and all the natural resources in the same territory (including the air and all forms of potential energy ) and also all royalties and franchises within that territory…” It provides that these are matters which belong to the Irish Free State subject to any trusts, grants, leases or concessions etc. Article 10 of the 1937 Constitution recasts this provision but uses very similar language which seems to make it clear that the breadth of the State property is at least as wide as captured by Article 11 of the 1922 Constitution. Again, it includes all forms of potential energy within the concept of natural resources, and in accordance with Article 10.2 provides that all mines or minerals or waters which belong to Saorstát Éireann belong to the State. In the 1937 Constitution this must be read with Article 2 of the Constitution as enacted, which then provided that the national territory consisted of the island of Ireland, its islands and the territorial seas.
63 It is useful, I think, to approach the 1922 Constitution on the basis that it sought at every point where it was possible to expel the King as sovereign and to assert the sovereignty of the People. This included replacing the King as the ultimate default owner of all property and introducing in his place the State. In the Blackwater case (Neill v. Duke of Devonshire), Lord O’Hagan set out the existing common law at pages 157-158 of the report: “Upon the general principles which must govern our opinion there has not been and there could not be the suggestion of a doubt. The right of the Sovereign exists in every navigable river where the sea ebbs and flows. Every such river is “a royal river and the fishing of it is a royal fishery and belongs to the Queen by her prerogative”, citing in this regard Sir John Davies Report page 56. Lord O’Hagan continued: “‘The right of fishing in the sea’ according to Lord Hale, and the creeks and arms thereof, is originally lodged in the Crown, as the right of depasturing is originally lodged in the owner of the waste whereof he is lord, or as a right of fishing belongs to him that is the owner of the private or inland river.” (Hargrave, Law Tracts, De Jure Maris, pars prima, cap. 4 p. 11)
64 Article 11 of the Irish Free State Constitution (and subsequently Article 10 of the 1937 Constitution) can be understood as inserting the new State in place of the sovereign as the default owner of property. Indeed it is interesting how Kennedy C.J., who was of course on the drafting Committee of the 1922, described the constitutional transition in another limb of the Erne fisheries controversy reported in [1930] I.R. 471. The issue there was the position of the Attorney General, and the holder of that Office’s capacity to assert public rights, which in turn involved some consideration of both the 1922 Constitution and the Minister and Secretaries Act 1924, matters with which Kennedy C.J. had perhaps unrivalled familiarity. At page 495 of the report he said:
“It is to be observed that the character of the office of Attorney General followed from the constitutional development of the Crown, from the time of the personal kingship, in theory parens patriae and protector of the rights of the people, to the time of the impersonal Crown, which is almost synonymous with what we call “the public”, that is to say, the people of the State or the community incorporated under that form or style, and expressing itself through that organ.”
This observation suggests that the change effected by Article 11 was not necessarily seen as radical, or indeed incompatible with the existence of public rights.
It is notable that in the extract cited above, Lord O’Hagan speaks, I think correctly, of the right of fishing rather than the property in the fish. Manifestly, this right of the sovereign prior to 1922 was not considered to be incompatible with either the public right of fishing in seas or tidal waters, or with the legal status of fish and other wild animals as nullius in bonis.
65 Much of the difficulty arises here because of the assertion that it is the mussel seed itself which is the natural resource, and therefore the property of the State. It may be easier to address the matter at the level of generality which the Constitution itself adopts. There can be no doubt that Article 10 extends to air and water and in particular to the capacity to extract potential energy from either source, or indeed any source within the State. Thus, the capacity for example to exploit the power of waves or the wind would I think be readily understood to be included within Article 10, notwithstanding the fact that no one can claim ownership in the water or the air, and that the waves which wash the shore and the wind which blows over land and sea cannot be said to be territorially limited in any way. The capacity to extract from the waters or the air energy for commercial purposes falls easily within the concept of both Constitutions and would also I readily be understood as within the broader terms of the Irish text – ábhar maoine nádúrtha – a source of natural wealth. It would I think follow, that either the territorial waters in which the fish may swim or the mussel seed may be found, or the right to fish in those waters, can be understood in the same terms. It is not I think either necessary or desirable to attempt further delineation of the nature, structure and constitutional context of any public right of fishing, or rights to collect seaweed on the foreshore, since they are not raised directly in this case.
66 It is however notable that both Constitutions speak of the ownership by the State of land and natural resources being subject to rights, trusts, grants and other such provisions. If, as is suggested by the late Victorian cases, the origin of the public right of fishery was the sovereign’s decision to maintain and protect it, then there is no reason to assume that either the 1922 Constitution or the 1937 Constitution, both of which assert that all power and authority comes from the People, should be seen as any less protective of the People’s rights. The State ownership of natural resources asserted in 1922 and 1937 may be subject to any rights, if so analysed, in the same way as the sovereigns title was prior to 1922. However this does not require to be decided here. It is sufficient for this case to conclude that on the plain meaning of Article 10 of the 1937 Constitution, the regulation of fishing for mussel seeds at least, when carried out in the territorial waters of the State, is the regulation and management of a natural resource, and therefore property belonging to the State which must be provided for by law, which must mean public legislation adopted by the representative of the People in the Oireachtas.
The Interpretation of the 2006 Act
67 The complex debate about the legal status of mussel seed and the existence of public rights of fishery, does not however resolve this case. It means merely that Article 10.3 of the Constitution applies, and therefore that any regulation or management of a natural resource must be made by “law”. Clearly the voisinage agreement is not such a law. It is not legislation enacted by the Oireachtas. It was not laid before either House of the Oireachtas. It was not publicised, was not available for debate and it was not even necessarily known to any of the representatives of the People at any point during the time when it is suggested it has regulated access to the State’s waters and fishing therein. Indeed, it is accepted that it lacks sufficient certainty and clarity such that if it were a private agreement, it would not constitute a legally enforceable one. Indeed, it appears that the voisinage arrangement identified in the High Court is not limited to the ambiguous and uncertain language of the 1965 correspondence, but is of necessity more broad and flexible. The logic of the High Court’s conclusion is that the agreement is sufficiently flexible to permit the fishing for species which may not have been fished in 1965, by methods not used, by vessels which were not contemplated, and indeed in circumstances where the precise area was not identified, and that such fishing can be carried out by persons or undertakings quite different from those contemplated in 1965. Indeed, the end point of the State’s argument was that the voisinage agreement enforceable under the 2006 legislation is something different from what was recorded in 1965 which was only a manifestation of it, even though no evidence given as to by whom or how any such more flexible and general arrangement had been made. Plainly therefore the arrangement identified by the High Court decision, is not itself “law” for the purposes of Article 10.
68 However the State defendants seek to avoid these difficulties by arguing that the 2006 Act is legislation and therefore “law” which satisfies the provisions of Article 10.3. In particular it is argued that although section 10 appears to prohibit a person on board a foreign sea fishing boat from fishing within the exclusive fishery limits unless authorised by law, that any fishing carried out here in the context of mussel seed was authorised by law in the shape of section 8. That section prohibits a foreign sea fishing boat from entering within the exclusive fishery limits except for a purpose or purposes recognised by community law, international law, or “any convention, treaty or arrangement for the time being in force between the State and the country to which the boat belongs”. It is argued that fishing by persons on board a Northern Ireland fishing vessel is a purpose recognised by the voisinage agreement in this case, being therefore an arrangement for the time being in force under section 8. Since section 8 permits entry into territorial waters for that purpose, and must therefore be understood as a “law” permitting fishing both for the purposes of Article 10.3 and section 10.
69 It is at this point that it becomes important in my view that the fishing activity carried out here is seen as the exploitation of a natural resource being either the waters in which it takes place, or the capacity to fish therein. The requirement of Article 10.3 of the Constitution for regulation “by law” is not merely a formal procedural provision, important though that would be. In constitutional terms, it means that the Constitution requires that the regulation of natural resources stated to be the property of the State must be the subject of a decision by the representatives of the People who are accountable to them. Legislation is normally required to take place in public, (Article 15.8) which carries with it the possibility of public knowledge and debate. In effect, therefore the Constitution mandates that if State property, in particular natural resources, is to be sold, leased, managed or regulated, then that decision should be made in public by representatives who are accountable to the People who can accordingly make their views known. It follows in my view, that the Court should take a strict approach to the requirements of Article 10.3 which ensures compliance both with the text and the underlying rationale of the Article.
70 It cannot be said that the only purpose of entry into territorial waters, even by a fishing vessel, is fishing. There are a number of purposes which foreign sea fishing vessels may be permitted to enter Irish territorial waters including shelter, transit to other fishing grounds, the landing of catch and perhaps the requirement to land to effect repairs. Clearly an arrangement can be made for the purpose of fishing, but all section 8 permits is entry by the vessel for such a purpose. Section 10 however prohibits a person on board such a vessel from fishing unless that person is authorised by law. Section 8 cannot, even on a relatively generous interpretation, be such an authorisation by law, since it does not permit fishing by persons, but only permits entry by a vessel. If fishing is permitted, then it is by the voisinage arrangement, and that certainly is not law for the purpose of section 10 and still less for the purposes of Article 10.3 of the Constitution. It would of course have been possible to explicitly to provide in section 10 that Northern Ireland vessels could fish in accordance with arrangements specified in the Act, or a schedule thereto, or conceivably in a Statutory Instrument, or even perhaps and indirectly under an arrangement referred to in section 8. This was not done. Instead section 10 requires a law which permits fishing. The permission to enter under section 8 does not constitute a law permitting fishing as contemplated by section 10 of the Act.
71 In any event, there is in my view a more fundamental objection to the defendants’ case. Even if section 10 was cast in the very same terms as section 8, or if it were correct to read it together with section 8 as the State argues, it would not in my view be sufficient to comply with Article 10.3 of the Constitution. There are certain minimum requirements of promulgation, publicity, clarity and certainty before any provision can be said to be a law under the Constitution: see: King v. Attorney General [1981] I.R. 223. It is in my view an irreducible minimum of any legislation proffered as complying with a requirement of a constitutional provision such as Article 10.3 relating to the manner in which State property including natural resources may be regulated, leased or alienated, that the regulation leasing or alienation or other treatment of the property and natural resource, should be known to, or at least capable of being known to, the members of the Oireachtas making the law and to the persons affected by it. That includes persons in this case who seek to fish in Irish territorial waters pursuant to the arrangement, and interested members of the public who may wish to express views upon it. Where primary legislation in turn permits a delegate to make a more specific provision, it is apparent from the primary legislation who is to exercise the power, and the limits of the area of delegation so that at some level the range and scope of the provisions which may be made under the permitted power may be known in advance. Any such secondary legislation is in turn normally published and available. The obvious inadequacies of the voisinage arrangement in this regard, cannot be evaded simply by pointing to the terms of a section which refers to entry in accordance with a purpose provided for in “an arrangement”. Ultimately a criminal offence is committed if entry is effected (and, on the State argument, if fishing is carried out) other than in accordance with the arrangement. But all the difficulties already identified which mean that the arrangement is so vague and uncertain as to be incapable of enforcement if it were a private agreement, mean that it cannot be said that such fishing is “authorised by law” under section 10 or indeed regulated “by law” for the purposes of Article 10.3.
72 There are some simple yet fundamental objections. If the agreement is not contained in the 1965 correspondence, then it follows that it cannot be said who made the arrangement which in the words of section 8 is nevertheless “in force”. No member of the Oireachtas, either in 1959 or in 2006, had any way of knowing what might be permitted under any arrangement at either date or in what respect such an arrangement could be altered or, as was held here, develop. No Northern Ireland fisherman, or business contemplating fishing in the exclusive fishing area of this State, could know with clarity the terms that they would have to comply with to avoid committing an offence. Indeed, it appears that there is even now some uncertainty as to the area within which such fishing would be permitted, whether between 0 and 6 nautical miles or 0 and 12 nautical miles. No one who wished to ensure that any Northern Ireland vessel stayed within the terms of the permission could know, its terms so as to be able to police it. A Northern Ireland applicant who is refused permission on some ground would know that ground, but would not be in a position to argue that the decision made was not in accordance with the arrangement because the arrangement itself is unknown, uncertain and inherently and it is said necessarily, flexible. A person wishing to challenge a permission issued, would face the opposite difficulty. It appears that the respective licensing arrangements contemplated that if a vessel or person wished to fish under the voisinage arrangement, they could contact the appropriate Department either in Belfast or Dublin. In any such case, if permission was granted, the person receiving the permission would be entitled to believe that any such fishing was carried out with the permission of a civil servant representing a minister, and therefore a member of the Executive. But that only illustrates the problem: executive permission is, in constitutional terms, the antithesis of public legislation contemplated by Article 10.3 of the Constitution.
Conclusion
73 The plaintiffs’ objections to fishing by Northern Ireland vessels resolve themselves as matters of constitutional procedure. If this procedure is correctly followed, there is no reason why Northern Ireland vessels may not be permitted to fish for mussel seed in specified portions of the exclusive areas of Ireland’s territorial waters. As the trial judge observed, there is much to applaud in North-South cooperation in this area, and in indeed any area of fishing still capable of being regulated by national law. Indeed such cooperation should be easier now than in 1965: it is now clearly permissible by, and arguably an implementation of, the constitutional provisions which have been in place since 1999, which expressly contemplate cross-border cooperation in a number of areas. However, the plaintiffs’ claim here does not involve any consideration of the merits of the plaintiffs’ opposition to fishing by Northern Ireland vessels, its advisability at a general level, or indeed any consideration of whether success in these proceedings will be of material benefit to the plaintiffs. The plaintiffs’ case raises a net issue of legality upon which they are entitled to succeed. The voisinage agreement cannot be said to be law for the purposes of Article 10.3; yet it contains the specific provisions which permit the exploitation of a natural resource. Those provisions cannot become “law” for the purposes of Article 10.3 merely by a statutory reference to fishing in accordance with an arrangement, and still less by the attempted reading of section 10 in conjunction with section 8 as suggested by the State in this case. I would accordingly allow the appeal and make a declaration that fishing by Northern Ireland vessels for mussel seed within the territorial waters of the State is not permitted by law. I would hear the parties, if necessary, as to the precise terms of the declaration.
Donegal Fuel and Supply v. Londonderry Harbour Commissioners
[1994] IR 24
H.C.
Costello J.
6th May 1992
Carrickarory Pier situated on the Donegal side of, and close to the mouth of, Lough Foyle, was built in the middle of the last century by the grand jury of the county of Donegal. Later it was vested in the Londonderry Port and Harbour Commissioners, a vesting later confirmed by statute enacted in 1882. Mr. Alan Moyne, Mr. Henry Thompson and a firm called McCauley Brothers Ltd. claimed, in proceedings instituted in 1982, that they had distributed coal in the Inishowen peninsula for a number of years, that for this purpose they had imported coal by using the pier at Carrickarory, and that in breach of statutory duty the harbour commissioners had closed the pier thereby causing them financial loss. What had happened was this. The harbour master of the port of Londonderry had given public notice in February, 1977, that the pier was to be closed for the discharging and loading of vessels; in August, 1980, it was announced that substantial repairs having been carried out the pier would be reopened but only for a limited period and for the discharging and loading of vessels which did not exceed 200 feet in length. After the pleadings were closed in the 1982 proceedings, agreed questions of law were tried by me as a preliminary issue. On the 6th June, 1986, I gave my judgment ( Moyne v. Londonderry Port and Harbour Commissioners [1986] I.R. 299) in which I held that the harbour commissioners were under a statutory duty to keep the pier open, that in the absence of validly adopted bye-laws the harbour master could not permanently restrict its use, and that if any of the plaintiffs in those proceedings had been deprived of an opportunity to use the pier and had thereby suffered loss they were entitled to damages.
Thereafter a strange paralysis seemed to strike the action and nothing happened to it for nearly five years. Finally, the plaintiffs in those proceedings had the action re-entered and having heard evidence on the point I concluded, on the 6th April, 1991, that the harbour commissioners had been in breach of statutory duty to each of the plaintiffs and that each were entitled to damages for loss sustained by them from the 1st January, 1978. Damages have not yet been assessed, disputes on discovery having delayed the re-listing of this action.
On the 30th July, 1991, a letter was written to the harbour commissioners on behalf of Mr. Harry Thompson, Mr. Brian Thompson, and the Donegal Fuel and Supply Company Ltd. (“the applicants”). The letter claimed that all three were coal importers who had formerly used the pier at Carrickarory, that because it had not been repaired they had been unable to use it, that the harbour commissioners were under a statutory duty to repair it and that if they failed to carry out this duty within a specified time an application to the court for an order of mandamus would be brought.
Unknown to the applicants, on the 20th June, 1991, (pursuant to statutory powers which I will examine later) the Department of the Environment of Northern Ireland had made an order empowering the harbour commissioners to discontinue or abandon the use of any part of the port of Londonderry and its harbour undertaking. Pursuant to the power thus conferred on them, the harbour commissioners resolved to abandon the repair and maintenance of the pier at Carrickarory and gave public notice of this fact in the Derry Journal of the 12th September, 1991. But for reasons to be explained later a resolution closing the pier was not the only action taken by the harbour commissioners. They decided to make bye-laws under statutory provisions contained in s. 83 of the Harbours, Docks, and Piers, Act, 1847, and requested the Minister for the Marine in this jurisdiction, pursuant to s. 48 of the Londonderry Port and Harbour Act, 1882, to approve them. They gave notice in the Donegal Democrat of the 12th September, 1991, of their intention to apply to the Minister to allow the bye-laws and in their notice indicated that the bye-laws if approved would permit the use of the pier only for vessels of less than 16 metres in length. The notice also indicated that objections to the proposed bye-laws should be lodged with the Minister and would be heard by him in a manner to be directed by him.
In the light of these developments the applicants instituted two separate sets of proceedings. On the 18th October, 1991, they appliedex parte and obtained leave to institute proceedings by way of judicial review in which they sought an order of mandamus ordering the harbour commissioners to repair the pier at Carrickarory. On the 29th November, 1991, they applied ex parte and obtained leave to apply by way of judicial review for an order of prohibition prohibiting the Minister from approving the bye-laws. The harbour commissioners were joined as notice parties in the prohibition proceedings. I heard both proceedings together as the issues involved were closely interlinked. To understand them I must firstly refer to the pre-1922 statutes of the United Kingdom parliament relating to the harbour commissioners and the pier at Carrickarory; then to the post-1922 legislation enacted by the parliament of Northern Ireland and the orders made thereunder; and finally to Article 73 of the Constitution of 1922 by which it is claimed the pre-1922 statutes became part of the law of the Irish Free State and thus, under the Constitution of 1937, part of the present statutory law of Ireland. I will then be in a position to explain the issues which fall for consideration and give my conclusions on them.
The law
(1) Pre-1922 statutes
(a) The incorporation and the constitution of the harbour commissioners
By s. 16 of the Londonderry Port and Harbour Act, 1854 (“the Act of 1854”), the Londonderry port and harbour commissioners for the time being appointed under the provisions of the Act were declared to be a corporation with perpetual succession under the name “The Londonderry Port and Harbour Commissioners” and were the conservators of the port and harbour referred to in the Act, subject to its provisions. Sections 17 to 19 contained detailed particulars relating to the qualifications of the commissioners and of the electors by whom commissioners were to be elected – briefly speaking, the commissioners were to be residents and ratepayers in Londonderry and owners of vessels of a specified size, and likewise the electors were to be residents and ratepayers and owners of vessels of a specified size. Commissioners were to be elected in the manner prescribed in the Commissioners Clauses Act, 1847. They were to number 14 (section 20).
The Act of 1854, was amended and extended by the Londonderry Port and Harbour Acts, 1882, 1919 and 1920 (respectively the Acts of 1882, 1919 and 1920). The constitution of the harbour commissioners was radically altered by the Act of 1920 (ss. 6 to 23), as was the qualification of the electors and of the commissioners. The number of commissioners was increased to 17, the mayor of Londonderry being ex officio a member. As a result, in 1922 the persons on whom corporate status was conferred by the Act of 1854, were those elected in accordance with the Act of 1920.
(b) The powers and duties of the harbour commissioners
The Act of 1854 not only declared the harbour commissioners to be the conservators of the port but authorised them to make and maintain works which were detailed in it (section 28). They were empowered to improve the channels of the port for the promotion of navigation and to do everything necessary to render it safe and commodious (section 54). The words “harbour, dock, or pier” were used throughout the Act, as was the word “port”, and these were defined as applying to “the Lough and river, port and harbour of Lough Foyle and to the quays, docks and works which the commissioners were authorised by the Act to construct”. An obligation to pay rates to the harbour commissioners on every vessel arriving at the port was imposed by s. 62 (the amount being specified) and an obligation to pay rates levied by the commissioners on goods shipped and unshipped in the port was also imposed (section 64). The monies raised by rates was to be applied, inter alia, to executing and maintaining the works authorised by the Act (section 89). Amending Acts authorised the execution by the harbour commissioners of further works as specified in them.
Section 12 of the Act of 1854 provided that the provisions of the Harbours, Docks and Piers Clauses Acts, 1847 (“the Act of 1847”) were to be incorporated with the Act of 1854. Section 33 of the Act of 1847 provided that upon the payment of rates payable by any special Act which incorporated the Act of 1847 the harbour, dock and pier should be open to all persons for the shipping and unshipping of goods and the embarking and landing of passengers. This is the statutory provision on which the applicants strongly rely.
I was required in Moyne v. Londonderry Port and Harbour Commissioners [1986] I.R. 299 to construe the statutory duty of the harbour commissioners under these pre-1922 statutes to keep their undertaking or in particular the pier at Carrickarory in repair. I concluded that they were under a duty to maintain works which they had constructed for the use of the public and that this imposed an implied obligation to repair them. I went on, however, to point out that this duty must be read in conjunction with the rest of the provisions of the special Acts and that, whilst the harbour commissioners could not close down the whole of their undertaking without parliamentary sanction, they could restrict the use of any part of their undertaking by means of bye-laws made and confirmed under s. 47 of the Act of 1882 (see pp. 308-309 of the report).
(c) The pier at Carrickarory
The grand jury of the county of Donegal had transferred the pier at Carrickarory to the harbour commissioners. Doubts apparently arose about the efficacy of the transfer and it was provided by s. 18 of the Act of 1882 that the transfer was confirmed and that the pier and its management and maintenance were to be vested in the harbour commissioners as part of their undertaking “as fully and effectually and with the same powers, authorities, privileges, and obligations as if the said pier had been constructed by them under the powers of their Acts”. This meant that the statutory obligation to repair to which I had referred applied to the pier at Carrickarory as it did to other parts of the harbour commissioners’ undertaking.
(d) The power to make bye-laws
Section 83 of the Act of 1847 conferred power to make bye-laws on the harbour commissioners, a power extended by s. 26 of the Act of 1854 and s. 47 of the Act of 1882. It is agreed that the power which is relevant for the purposes of the present proceedings is that contained in s. 83 of the Act of 1847, which enabled the harbour commissioners to make bye-laws “for regulating the use of the harbour, dock or pier”. Procedures to be followed for adopting bye-laws were contained in s. 48 of the Act of 1882. This provided, inter alia, that:
“No bye-law shall take effect until it is allowed by the Board of Trade, the Board of Trade being at liberty to allow, alter or disallow the same, as they may think proper.”
The section went on to provide that no bye-laws could be allowed unless notice of intention to apply for allowance had been given by public advertisement, that copies of proposed bye-laws should be available for public inspection, and that “Any person desiring to object to any such bye-laws, on giving to the Commissioners notice in writing of the nature of the objection ten days before the making of the application for the allowance thereof, may be heard thereon in such manner as the Board of Trade shall direct.”
It will be recalled that in s. 1 of the Act of 1854, the words “harbour, dock, or pier” and the word “port” were defined as extending and applying to the lough, river, port and harbour of Lough Foyle and to the quays, docks and works authorised by the Act. As a result, the power to make bye-laws is to be construed as a power for regulating the use of the whole or any part of the Lough Foyle or the harbour at Lough Foyle, and the whole or any part of any of the piers and quays vested in the harbour commissioners.
This pre-1922 legislation has been extensively amended by post-1922 legislation enacted in Northern Ireland to which I must now refer.
(2) Post-1922 Northern Ireland legislation and ministerial orders
Delegated power to legislate by ministerial order in relation to harbours was conferred on the Ministry of Commerce by the Harbours Act (Northern Ireland), 1970. The Ministry could by order make provision for achieving a wide range of objects set out in the first schedule to the Act, including orders conferring functions on harbour authorities, the winding-up or dissolution of harbour authorities, the reconstitution of harbour authorities, the alteration of the constitution of harbour authorities, and orders amending or repealing statutory provisions of local application affecting a harbour. Pursuant to these powers a radical alteration in the constitution of the harbour commissioners was effected by order of the 17th December, 1976 (made by the Department of Commerce to whom the power had been transferred). Existing commissioners were required to vacate office on the day the order came into operation and thereafter the harbour commissioners in lieu of being elected were to be appointed by the head of the Department of Commerce. Since that time commissioners have been appointed under the order of 1976 – not elected under the Act of 1920.
A further ministerial order was made on the 21st June, 1991. It provided, inter alia, that the harbour commissioners, notwithstanding any provision to the contrary contained in the Acts relating to them, were empowered to discontinue or abandon “the maintenance and repair of any part of the port, harbour facilities, or ancillary works”.Pursuant to this power the harbour commissioners made a decision on the 11th September, 1991, to abandon the repair and maintenance of the pier at Carrickarory, a decision which was advertised in the Deny Journal on the 17th September, 1991, to which I have already referred.
Thus it is clear that under the law of Northern Ireland the harbour commissioners may abandon the maintenance of the pier at Carrickarory. If this is the law which this court is to apply the applicants’ case must therefore fail. The applicants say that the pre-1922 statutes were carried over into the law of the Irish Free State by Article 73 of the Constitution of 1922 and that the law which this court is to apply is to be found in those statutes. The harbour commissioners contend otherwise and the resolution of this dispute is one of the principal issues in these proceedings.
The harbour commissioners undoubtedly found themselves in a difficult legal situation. If they were right about the operation of Article 73 then they were under no obligation to keep the pier open. But what if an Irish court decided otherwise? They concluded that they should guard against this eventuality and make bye-laws which would restrict the use of the pier under the pre-1922 statutes. On the assumption that s. 48 of the Act of 1882 remained part of the law of the State (although repealed as regards Northern Ireland) they adopted bye-laws on the 28th October, 1991, which restricted the use of the pier and presented them to the Minister of the Marine of the Irish Government for his approval. If their main contention was upheld by the Irish courts, then they have the benefit of the Northern Ireland ministerial order of the 21st June, 1991. If it was not, then, they would get the benefit of the bye-laws, if approved by the Minister.
(3) The Constitution of 1922
The pre-1922 statutes to which I have referred can only be part of the law of the State by the operation of Article 73 of the Constitution of 1922. This Article provides:
“Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in the Irish Free State (Saorstát Éireann ) at the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them have been repealed or amended by enactment of the Oireachtas.”
If this Article had the effect of carrying over into the law of the Irish Free State the pre-1922 statutes, then their provisions relating to the adoption of bye-laws were affected by the Ministers and Secretaries Act, 1924, which assigned the functions of the Board of Trade to the Department of Industry and Commerce (section 1, para. (vii)). (Later these were transferred to the Minister for the Marine.) If it did not, then the mandamus proceedings must fail, as the harbour commissioners are under no statutory duty to repair and keep open the pier at Carrickarory. And the prohibition proceedings must also fail because the Minister for the Marine has no statutory functions in relation to bye-laws made by the harbour commissioners.
I will now examine in greater detail the two sets of proceedings before the court.
The mandamus proceedings
The applicants’ case is that s. 33 of the Act of 1847 is part of the law of the State, that under that section the Londonderry Port and Harbour Commissioners are obliged to keep the pier at Carrickarory in good and adequate repair, that since 1980 they have failed to do so, that they have evinced an intention to discontinue the repair and maintenance of the pier by virtue of Article 6 of the Order of 1991, that this statutory instrument has no force or effect within the State and does not relieve the harbour commissioners of the statutory duty under s. 33 of the Act of 1847. Their claim is that the court should order the harbour commissioners to carry out that duty.
The harbour commissioners submit:
(1) that the court has no jurisdiction to order the Londonderry Port and Harbour Commissioners to carry out a statutory duty as they are incorporated outside the State;
(2) that the pre-1922 statutes are not part of the law of the State and that even if there had been a statutory duty to maintain the pier that duty terminated by the Order of 1991, made under the law applicable to the pier;
(3) that even if the pre-1922 statutes are part of the law of the State, the court in the exercise of its discretion should not make an order of mandamus because the regulation of the pier is to be determined by the bye-laws which it is proposed will be adopted by the Minister.
It will, I think, be helpful if I deal firstly with the constitutional issues arising under Article 73.
(a) The Article 73 issue
It seems to me that this issue can be resolved by considering the correct answer to the question, “Could the Oireachtas established by the Constitution of 1922 have validly enacted, in 1923 or later, the pre-1922 statutes?” or, to expand the question a little, “could the legislature of the Irish Free State in 1923 have passed a law establishing in Northern Ireland a statutory corporation with the powers, duties and functions contained in the pre-1922 statutes and elected in the manner provided for in those statutes?” If the Oireachtas could not validly have legislated in this way, then it would follow that the pre-1922 statutes were not carried into the law of the Irish Free State by Article 73 because that Article in its application to statute law must refer to statutes which could be validly enacted by the Oireachtas – if the Oireachtas could not enact a statute then it could not repeal or amend the statute as the Article contemplates the Oireachtas doing.
Whether or not the Oireachtas, as a member of the British Commonwealth had power to legislate with extra-territorial effect was for a time a matter of controversy until it was finally authoritatively settled that it could do so. But that is a legislative power to declare acts committed outside the State to be contrary to the domestic law of the State and to confer jurisdiction on domestic courts to try offences committed extraterritorially – it is not a power to legislate to establish a statutory corporation in another state and confer on it powers, duties and functions. The legislative powers of the Oireachtas were to be found in Article 12 of the Constitution of 1922, which provided for the establishment of the Oireachtas and declared that “The sole and exclusive power of making laws for the peace, order and good government of the Irish Free State (Saorstát Éireann ) is vested in the Oireachtas”. I think that the power thus conferred should be construed in the light of the prevailing principles of public international law. The parliament of the Irish Free State was the parliament of an independent sovereign state but like the parliaments of other sovereign states its legislative powers were circumscribed by international law. The sovereignty and equality of states are two basic concepts of international law, concepts which mean (1) that each sovereign state has jurisdiction prima facieexclusively over a territory and the permanent population living there, and (2) that there is a duty imposed on each sovereign state of non-intervention in the area of the exclusive jurisdiction of other states (see Brownlie, Principles of International Law (3rd ed.) at p. 228, which states principles which were well established and commonplace at the date of the establishment of the Irish Free State). I construe, therefore, the legislative powers conferred by Article 12 of the Constitution of 1922 as meaning that the power of the Oireachtas to make laws for the peace, order and good government of the Irish Free State did not include a power to legislate for matters which were within the exclusive jurisdiction of other sovereign states. It is (and was in 1922) another well established principle that corporations are domiciled in the state of their incorporation and it seems to me that to enact a law to incorporate a corporation in another state and to enact statutory provisions as to how its corporators are to be elected and the functions and duties it is to perform in another state amounts to an infringement of the principles of international law and was outside the legislative powers conferred on the Oireachtas by the Constitution. I conclude therefore that the Oireachtas established by the Constitution of 1922 could not have validly enacted the pre-1922 statutes.
But a question arises as to whether the Oireachtas might have been empowered to enact parts of the pre-1922 statutes. Certainly parliament in 1922 could have regulated the manner in which foreign corporations carried on business or provided services in the Irish Free State and, as the pier at Carrickarory was situated in the Irish Free State, could not parliament have legislated in respect of operations carried on at the pier by a foreign corporation? I think it could have done so. But I also think that it does not follow that it could have enacted the provisions of the pre-1922 statutes which imposed duties on the harbour commissioners to repair the pier and keep it open. The financial provisions of the pre-1922 statutes could not have been enacted by the Oireachtas as they imposed taxes to be collected in a foreign state and to do so would have constituted and amounted to an unjustifiable interference in the internal affairs of the United Kingdom. The provisions of the pre-1922 statutes imposing duties to repair the pier at Carrickarory and keep it open were so closely linked to those financial provisions as to make it impossible to sever those duties from those provisions and so the sections on which the applicants herein rely could not have been enacted by the Oireachtas and so were not carried over by Article 73.
The views which I have just expressed are not affected by my decision and that of the Supreme Court in Waterford Harbour Commissioners v. British Railways Board [1979] I.L.R.M. 296. The legislative
provisions which were considered in that case were very different to those in the instant case and it was accepted by the defendant’s counsel in the earlier proceedings that they had become part of the law of the Irish Free State by virtue of Article 73 so that the point now being considered did not arise in the earlier case. Nor are they affected by the fact that the point now taken by the Londonderry Port and Harbour Commissioners was not taken by them in the earlier proceedings to which I have referred and which are presently pending before this court. Those proceedings proceeded on the basis that the statutory duty being considered was one imposed by the pre-1922 statutes which became part of Irish law. But I do not think that the harbour commissioners are estopped in anyway in these present proceedings from arguing the point now raised. And I do not think that the conclusions which I have now reached preclude me from assessing damages in the earlier proceedings. The Irish courts have jurisdiction to entertain a claim for damages for breach of a duty imposed by a foreign statute on a foreign corporation when the breach occurs in this State and when the foreign corporation submits to jurisdiction as happened in the earlier case. The principles on which damages for breach of statutory duty are awarded are the same under Irish law as under the law of the United Kingdom and so my conclusion that the plaintiffs in the earlier proceedings are entitled to damages is unaffected by the fact that their entitlement arises under the law of Northern Ireland rather than the law of the State. In assessing damages I will, in the light of this judgment, have to consider whether the measure of damages is affected by the law of Northern Ireland, including the limit, if any, imposed by the ministerial order of 1991 which relieved the harbour commissioners for liability to maintain the pier.
The applicants’ claim for an order of mandamus must therefore fail as the statutory duty which it is sought to enforce does not exist in Irish law.
(b) Other issues
As the parties may require my conclusions on all the issues that have arisen I should express them briefly. In my opinion, even if the pre-1922 statutes became part of the law of the Irish Free State, the applicants’ claims would fail for the following reasons.
(1) The pre-1922 statutes have not been amended by the Oireachtas (except in matters relating to the authority to approve bye-laws). This means that under the law of the State, the harbour commissioners for the time being appointed under the pre-1922 statutes are deemed to be a corporation having the name “The Londonderry Port and Harbour Commissioners” (s. 16 of the Act of 1854). Under the pre-1922 statutes the persons who are to act as harbour commissioners must be elected according to the provisions of the Londonderry Port and Harbour Act, 1920. But no harbour commissioners have been so elected and so there are no persons elected on whom corporate status can be conferred by s. 16 of the Act of 1854. This means that there is no statutory corporation in existence under the statutes carried over into Irish law by Article 73 and no statutory body under that law against whom an order of mandamus can be made.
The harbour commissioners have not, of course, been conjured out of existence by some form of legal legerdemain – there is a statutory corporation in existence domiciled in Northern Ireland and operating under the laws of Northern Ireland. That corporation owns the pier at Carrickarory. It can sue and be sued in the Irish courts. This is because under our rules of private international law the Irish courts will, when a conflict of laws occurs, apply the law of the domicile of a foreign corporation – in this case the law of Northern Ireland. Under that law the harbour commissioners are a corporation, but if that law is to be applied by the Irish courts, no order of mandamus could issue against them because under the law of Northern Ireland they are under no duty to repair the pier.
(2) In the further alternative, the Irish courts have no jurisdiction to order a foreign corporation domiciled in a foreign state to carry out a statutory duty, even if it is one imposed by Irish law. It is true that the harbour commissioners have appeared in these proceedings and that by applying to the Minister to approve the draft bye-laws they may have impliedly recognised the statutory power of the Minister to approve the bye-laws. But neither the entry of the appearance nor recognition of the Minister’s power can confer jurisdiction on the court to make an order of mandamus directed towards a foreign corporation domiciled in a foreign state.
(3) In the further alternative, if the pre-1922 statutes are part of Irish law and if the court has jurisdiction to make an order of mandamus against the harbour commissioners, I do not think that it should exercise its discretion in the applicants’ favour in this case at the present time.
Assuming that s. 48 of the Act of 1882 is part of Irish law and that the Minister has a statutory power to approve the draft bye-laws, I am of the opinion (for reasons to be given later) that the draft bye-laws in this case cannot be impugned as being unreasonable and outside the powers of the harbour commissioners to adopt. This means that the harbour commissioners’ statutory duties to repair and keep open the pier at Carrickarory are likely to be affected by bye-laws approved by the Minister. In such circumstances the court should not make an order until the harbour commissioners’ statutory obligations in relation to the pier have been established by the Minister’s decision.
I will dismiss the claim for an order of mandamus.
The prohibition proceedings
For reasons already given the prohibition proceedings must fail because the pre-1922 statutes did not form part of the law of the Irish Free State. This means that the Minister has no function in relation to the bye-laws which the harbour commissioners may wish to adopt – the making of bye-laws is exclusively a matter to be determined in Northern Ireland by the law of Northern Ireland. It should be pointed out that the Minister, the first respondent in the prohibition proceedings, did not raise the Article 73 issue which I have considered but that the harbour commissioners, notice parties in those proceedings, did. I granted an adjournment so that counsel for the Minister could take instructions. As I understand the position, counsel was not specifically instructed to argue that the Minister had no power to approve the bye-laws, that the Minister’s view was that the point was one for determination by the court, but that if the statutory power existed (a) the proceedings were premature, and (b) he was empowered to approve the draft bye-laws if he considered it appropriate to do so.
As the parties may wish to have determined all issues which were raised, I can express my opinion on them shortly as follows:
(1) For reasons already explained if the pre-1922 statutes became part of the law of the Irish Free State there is now no corporate entity under Irish law known as the Londonderry Port and Harbour Commissioners as no corporators have been elected as required by the Act of 1920. The body which has forwarded to the Minister draft bye-laws for his approval has no power to do so under Irish law. Accordingly the Minister has no function in relation to them.
(2) I agree with the submission made on behalf of the Minister (and supported by the harbour commissioners) that these prohibition proceedings are premature. Under s. 48 of the Act of 1882, the Minister is required to consider representations made to him before approving draft bye-laws submitted by the harbour commissioners and he may approve, amend or disallow them. Even if it was shown that the draft bye-laws wereultra vires the Minister’s powers or unreasonable, the court cannot assume that they would be adopted by the Minister. I think that an objector to draft bye-laws is required to exhaust his statutory remedies before seeking the aid of the court in relation to them. If notwithstanding his objections the Minister approved bye-laws which legally he could not approve then the courts would quash the bye-laws.
(3) Finally it was urged that the draft bye-laws are (a) ultra viresthe Minister’s powers and (b) unreasonable and that the Minister should be prohibited from adopting them. It was urged that the harbour commissioners are under a statutory duty to keep open the whole of the harbour, port and all the piers and quays which form part of their undertaking and that the power to make bye-laws cannot be construed as permitting the enactment of bye-laws which would breach that duty. I cannot agree. Bye-laws can be made for the purpose of “regulating the use of the harbour, dock or pier” (s. 83 of the Act of 1847). This seems to me to confer a power to make bye-laws regulating the manner in which any part of its undertaking is to be used. This is what the draft bye-laws propose to do in relation to the pier at Carrickarory. Nor do I think that the draft bye-laws can be said to be unreasonable. The harbour commissioners have a statutory duty to raise income and to apply it in fulfilment, inter alia, of the powers to maintain and repair quays and piers. That income may not be sufficient to repair and maintain every part of their undertaking and the harbour commissioners must have a discretion as to how its income is to be used. This means that the statutes must be construed so as to permit them to discontinue, or reduce, the use of part of their undertakings should financial constraints so require. This is what has happened in this case. It seems to me that the harbour commissioners have not acted unreasonably in proposing to limit in the way proposed in the draft bye-laws the use of the pier of Carrickarory.
For all these reasons I will also dismiss the claim for an order of prohibition.