In the mid-1990s, Frank McBrearty Junior was a man building his future. Born in Scotland in May 1969, he had moved back to Ireland with his family at age six when his father purchased a pub in Raphoe, County Donegal. After leaving school at 16, Frank Jr. worked in Scotland and London before returning home with his wife Patricia to join the family business. By 1996, at just 27 years old, he was helping manage a thriving enterprise—the family pub and “Frankies Nightclub”—while building his dream home on a site just outside town. He played soccer with a local team, trained at the boxing club his father had established, and weighed a fit 12 stone. “It was my dream to build my own house the way I wanted it,” he would later tell a tribunal .
Within months, that dream would lie in ruins. Frank McBrearty Jr. would be arrested for a murder that never happened, subjected to a brutal interrogation, falsely accused based on an alleged confession he insisted was forged, and hounded by a sustained Garda campaign that destroyed his family business, shattered his health, and consumed nearly a decade of his life. The scandal that followed would become the worst in the history of An Garda Síochána, leading to the establishment of the Morris Tribunal, exposing systemic corruption within the Donegal Garda division, and ultimately forcing the Irish State to pay millions in compensation .
This is the comprehensive narrative of that scandal—from the fatal hit-and-run that sparked it, through the framing of innocent men, the exposure of Garda corruption, and the long legal battle that culminated in Ireland’s most significant application of the tort of malicious prosecution.
Part One: The Death of Richie Barron
The Fatal Night
On the night of 14th October 1996, Richie Barron, a 58-year-old cattle dealer from Raphoe, was walking home along a country road after a night out. Sometime after midnight, he was struck by a vehicle and killed. The initial Garda investigation treated his death as a hit-and-run accident—a tragic but straightforward case .
But within days, the investigation took a sinister turn. Rumours began circulating in the tight-knit community of Raphoe that Barron’s death was not an accident but murder, and that the McBrearty family—particularly Frank Jr. and his cousin Mark McConnell—were somehow involved. Local gossip, fuelled by “the ability of hatred to transform myth into facts” as Tribunal Chairman Frederick Morris would later memorably describe it, transformed a tragic accident into a conspiracy theory .
The rumour mill had raw material to work with. There had been a minor altercation between Mark McConnell and Richie Barron in a local pub earlier that evening—nothing serious, but enough to create a thread for investigators to pull. More significantly, there existed a history of ill-feeling between the McBrearty and Barron families, though its origins were vague and its relevance questionable .
The First Contact
In the days following Barron’s death, Gardaí visited Frank McBrearty Jr. at his building site. They wanted to know if anyone had been ejected from the Parting Glass, the McBrearty family nightclub, on the night Barron died. Frank Sr. had already told them his son had put someone out of the club in the early hours of the morning, though he didn’t know who it was. Frank Jr. made a brief statement about ejecting a local man who’d been in a row with an ex-girlfriend. It seemed routine. He had no reason to suspect that this minor incident would soon be twisted into evidence of murder .
Part Two: The Frame-Up
The December Arrests -On 4th December 1996, two months after Richie Barron’s death, Frank McBrearty Jr. and Mark McConnell were arrested for murder. The following day, Frank McBrearty Sr. was also arrested, along with numerous other members of the extended McBrearty family, their employees, and associates—Michael Peoples, Charlotte Peoples, Roisin McConnell, Edel Quinn, Katrina Brolly, and others—all on suspicion of being accessories after the fact .
The arrests were dramatic and public. Frank Sr. only avoided the initial swoop because he had left Donegal early that morning for Dublin, where he spent the day meeting TDs to complain about the treatment his family was already receiving. When he returned, he was arrested and would remain in custody for fourteen continuous days, undergoing medical treatment under Garda supervision .
The message to the community was unmistakable: the McBreartys were murder suspects. As Frank Sr. later described it, “vile rumours began to circulate,” and when family members went out, they were “verbally abused with people openly saying that they had ‘murdered’ Richard Barron” .
The Interrogation-Frank McBrearty Jr. was interrogated by two detectives from the National Bureau of Criminal Investigation’s “Cobra Squad”—Detective Sergeant John Melody and Detective Garda John Fitzpatrick. These men had a reputation as “top interrogators, people to be brought in to secure confessions” . What happened in that interrogation room would become the subject of intense scrutiny.
According to evidence later presented to the Morris Tribunal, McBrearty was subjected to brutal treatment. He alleged he was “poked and punched as he was being brought into custody and repeatedly kicked while being interviewed.” Throughout the interrogation, he was “constantly referred to as a murderer” .
When McBrearty was finally released, the corridor was lined with Gardaí. In a moment of raw anguish, he dropped to his hands and knees and shouted that he would “get every one of them for what they had done to him” .
The “Confession”-The following April, Frank Sr. was taking High Court proceedings against the Gardaí when the family learned of a devastating development: the State claimed that Frank Jr. had confessed to murder during his December interrogation.
The alleged confession was a detailed statement. According to the disputed document, Frank Jr. received a phone call from his cousin Mark McConnell, who had been in a row with Barron at the Town & Country pub. They “intended having a word with him,” so they crossed a car park and open fields to wait for him on the main road. When Barron saw them, he lashed out and missed. McBrearty “hit him a slap on the head and he fell back,” and the two fled back across the fields in darkness .
The confession was physically presented on two sides of a single page. The first page contained the detailed admission. Overleaf, there were just three sentences stating that his father had not intimidated anyone against giving evidence—a completely separate matter. The signature appeared on the second page, but the first side—containing the alleged confession—was unsigned .
Frank McBrearty Jr. vehemently denied ever making or signing any confession. He claimed either his signature was forged or he was tricked into signing something else. The document would become central to the scandal.
The Case Against the Confession– The alleged confession made no sense. Witnesses had placed Mark McConnell in a Raphoe pub until after Barron’s body was found. Frank Jr. had been working all night at the nightclub. Professional forensic pathologists had already determined that Barron died as a result of a car accident—not an assault with a “slap on the head” .
Yet for years, this fabricated confession would be used to justify the ongoing persecution of the McBrearty family.
Part Three: The Campaign of Harassment
Sergeant White’s War– In early 1997, a new figure arrived in Raphoe: Sergeant White. According to Frank McBrearty Sr.’s later testimony, Sergeant White made his intentions clear: “while it may have taken Mr. McBrearty twenty years to build up the business he would see that it was closed down in six weeks” .
White was as good as his word. Throughout 1997, Gardaí established roadblocks specifically positioned to deter patrons from visiting the McBrearty premises. They maintained “an almost continuous presence on and about the premises by way of multiple and prolonged attendances.” There were frequent bomb hoaxes—but when Gardaí responded, they evacuated only the McBrearty premises while adjacent businesses remained open. “People used to stand on the pavement opposite outside a chip shop watching the people being evacuated by the Gardai from the plaintiff’s premises”.
On occasions, innocent customers of the McBrearty business were arrested. The message was clear: associating with the McBreartys could mean trouble with the law .
The Summons Blizzard-The most systematic weapon deployed against the family was the law itself—weaponized through the District Court’s summary jurisdiction.
Between 1997 and 1998, Frank McBrearty Sr. and the family company were prosecuted by way of 50 summonses containing 157 separate charges. These alleged breaches of the Liquor Licensing Acts, the Petty Sessions (Ireland) Act 1851, and various other offences .
The hearings dragged on through 1998 and 1999, occupying 60 days in Letterkenny District Court. The family was forced to defend themselves against a relentless tide of minor charges, each requiring legal representation, each generating costs, each attracting adverse publicity. It was precisely the kind of “daily cattle prod” that you have described in your chapter—the summary jurisdiction used not for justice, but for harassment and control.
Finally, in June 2000, the Director of Public Prosecutions directed that all summonses be withdrawn. But by then, the damage was done .
The Business Destroyed-Before the campaign began, the McBrearty business was thriving. The company’s turnover had grown from €652,007 in 1994 to €879,696 in 1996, with profits after expenses of €103,512 in that final year. The family had invested over €400,000 between 1993 and 1997 in extending and improving the premises, installing new equipment, furniture, and disco lighting .
Frank McBrearty Sr. had ambitious plans: a restaurant, a hotel, expansion into Letterkenny, Derry, and Strabane. By November 1996, he was in discussions with an architect about developing a two-storey restaurant. By May 1997, full plans were ready .
But by then, the Garda campaign was in full force. The customer base fell away. The business “suffered very significant losses over the subsequent years and has never recovered” . The restaurant and hotel plans were abandoned. The dream was dead.
Part Four: The Fight Back
Billy Flynn: The Private Detective– As the campaign intensified, Frank McBrearty Sr. took a crucial step: he hired a private detective named Billy Flynn. Flynn began methodically investigating what was happening to the family, slowly piecing together the true picture of events in Raphoe .
Over the following years, Flynn would send 118 reports to the Department of Justice and the Garda Commissioner, detailing the campaign of harassment and the corruption within the Donegal Garda division. Much of what he documented would later be proved true. But at the time, “those reports and complaints came straight back to Donegal, to the very officers against whom suspicions had been raised” . The system was protecting itself.
Using the Courts-The family fought back through every available channel. As the nuisance charges mounted in District Court, they engaged senior counsel to fight them—using the courts themselves to obtain discovery of Garda documents. They pursued civil actions. They lobbied politicians .
By 1999, the situation had become impossible for Dublin to ignore. Assistant Commissioner Kevin Carty was dispatched to Donegal to investigate complaints from the family. His report—never published—led to the transfer of several senior officers out of the county. But the family wanted more: a public inquiry .
The Morris Tribunal-Their campaign eventually succeeded. The Morris Tribunal was established to investigate allegations of Garda corruption in Donegal. It would run for years, exposing a litany of abuses.
Frank McBrearty Jr. took the stand in 2003 in a cramped courthouse in Donegal town. Prematurely greying at the temples and looking older than his 36 years, he described the night of Barron’s death as “a normal night same as any other”—the football match, the 8:30pm start at the nightclub, the routine tasks of checking staff and stock and toilets .
He also described the toll the years had taken. His mind had “gone blank.” He couldn’t focus. He lost interest in boxing and football. Before Barron’s death, he weighed 12 stone. By the time of the tribunal, stress had pushed him over 18 stone .
The Funding Battle-The family’s fight was nearly derailed by lack of funds. Unable to obtain guarantees on their legal costs despite a High Court appeal, they were forced to withdraw their legal team from the tribunal entirely .
Yet Frank McBrearty Jr. and Mark McConnell continued attending daily, sitting in the public gallery, cross-examining Garda witnesses themselves. Frank’s combative style led to several clashes with Tribunal Chairman Mr. Justice Frederick Morris over the questions he put to witnesses .
In December 2004, on what would be his last day at the tribunal, Frank addressed the chairman “with great regret” that he was leaving to return to Donegal and consult with his family. In a submission to the inquiry, he criticised Justice Minister Michael McDowell for depriving his family of legal aid while funding legal assistance for “garda officers who framed me for murder” and others who “destroyed my family business and covered up.” He declared: “My family is sick and tired of listening to legal weasel words from the Dublin legal political establishment” .
The Truth Emerges -In June 2005, the second Morris Report was published. Its findings were devastating: Richie Barron had died in a hit-and-run accident. Every single person arrested in connection with his death was completely innocent. The investigation had been corrupted from the start. The rumours and gossip that fuelled it had been “the ability of hatred to transform myth into facts” .
Frank McBrearty Jr. and Mark McConnell attended the Dáil debate on the report’s findings before the summer recess. Watching from the public gallery, Frank walked out as Minister McDowell made his closing remarks. He had heard enough .
Part Five: The Legal Reckoning
The State Concedes Liability -In June 2005, the State formally conceded liability in the McBrearty cases. For the first time, the Irish government acknowledged that Frank McBrearty Jr., his family, and their company had been wronged by agents of the State .
The concession was significant. It meant the only remaining question was the quantum of damages—how much the State would have to pay for nearly a decade of persecution.
Frank McBrearty Jr.’s Settlement– On 20th September 2005, Frank McBrearty Jr. settled his civil actions against the State. Outside the High Court, he displayed a cheque for €1.5 million—the compensation for wrongful arrest, false imprisonment, malicious prosecution, defamation, and breach of his constitutional rights .
His settlement covered four civil actions: two in his own name, one in the name of his wife Patricia, and one joint claim. The State also provided a written apology .
At a press conference in Raphoe, McBrearty expressed relief but also a lingering sense of loss: “We are happy with the level of compensation awarded to us for the damage inflicted on us by agents of the State. It will never compensate us for the hurt, pain and humiliation we have suffered in the last nine years. What my family have endured should never be allowed to happen to anyone ever again” .
His wife Patricia spoke publicly for the first time: “It’s been really tough. I just want to forget about it all. I missed my two youngest children growing up because of this thing. When Frank was arrested, I was just waiting for them to come back and arrest him again, there was no normal life” .
McBrearty made clear what his victory meant: “I’ve achieved more than any man ever achieved in this country. We’ve exposed so much in the last 2½ years. Our family now have a strong voice, we are highlighting injustices and have begun a campaign and are being contacted by people who have been wronged by the State” .
On 20th September 2005, Frank McBrearty Jr. settled his civil actions against the State. Outside the High Court, he displayed a cheque for €1.5 million—the compensation for wrongful arrest, false imprisonment, malicious prosecution, defamation, and breach of his constitutional rights .
His settlement covered four civil actions: two in his own name, one in the name of his wife Patricia, and one joint claim. The State also provided a written apology .
The Company Case: Frank McBrearty & Company Ltd v Commissioner of An Garda Síochána & Ors– The family company’s case proceeded separately. On 25th October 2007, Mr. Justice Paul Gilligan delivered his judgment in Frank McBrearty and Company Ltd v Commissioner of An Garda Síochána & Ors [2007] IEHC 373 .
The judgment meticulously documented the company’s success before 1996, the destruction wrought by the Garda campaign, and the principles for assessing damages. Justice Gilligan awarded the company €2,475,047 in general damages for the losses caused by “unlawful, wrongful and malicious prosecution, oppression and harassment” .
The award reflected:
The catastrophic collapse of the business
The loss of management time
Damage to business reputation
The inability to trade normally during the campaign
The permanent destruction of expansion plans
Frank and Rosalind McBrearty’s Settlement
One week later, on 31st October 2007, Frank McBrearty Sr. and his wife Rosalind settled their personal action against the State for €3 million.
The settlement, announced to Justice Gilligan at a sitting of the High Court in Castlebar, came after the State indicated it would contest the claim—then agreed to settle. Frank Sr. told reporters: “I’m glad that it’s finally over and that we have got justice in the courts 11 years after the gardaí tried to frame me for a crime which never happened.” His wife Rosalind added: “The past 11 years have been like a living nightmare” .
The settlement included €2 million compensation plus €1 million for the costs of fighting approximately 160 District Court cases taken by the Gardaí against him .
The State’s counsel noted that the defendants would not deny any findings of fact made or to be made by the Morris Tribunal—an implicit acceptance of the truth of the McBreartys’ account
The Total Compensation-When all settlements and awards were tallied, the McBrearty family received approximately €7 million from the Irish State:
Frank McBrearty Jr.: €1.5 million (2005)
Frank McBrearty & Company Ltd: €2.475 million (2007)
Frank and Rosalind McBrearty: €3 million (2007)
Additional claims by Frank Jr.’s children and others remained outstanding
Part Six: The Unanswered Questions
The Re-Designation-Throughout the family’s long fight, crucial information was withheld from them. In February 2002—just weeks before the Dáil gathered to debate establishing the Morris Tribunal—the Garda investigation into Richie Barron’s death was quietly re-designated. It was no longer a murder inquiry. It was officially a hit-and-run .
Yet this information was not disclosed. The tribunal was effectively established without members of the Dáil knowing the full facts. The McBreartys themselves did not learn of the re-designation until late 2005, after receiving a letter from the Garda Commissioner—nearly four years after the decision had been made .
On 13th February 2004, Frank McBrearty Jr. and Mark McConnell were officially removed as murder suspects. They were not informed of this either .
Frank McBrearty Sr. began asking questions: Did the then Minister for Justice, John O’Donoghue, know? Did the then Attorney General, Michael McDowell, know? If they knew, why was the Dáil allowed to debate establishing a tribunal without being told that the entire murder investigation had been a sham? These questions were never fully answered .
The Department of Justice’s Role– The Department of Justice, unlike the McBreartys, had a full legal team at the tribunal—at a cost to the State of approximately €300,000. The department had received Billy Flynn’s 118 reports documenting Garda corruption. Yet those complaints were consistently referred back to the very officers against whom suspicions had been raised. The question of who in the department knew what, and when, and what they did about it, remained outside the tribunal’s remit .
Part Seven: Ireland’s Only Tort—Malicious Prosecution
The Context of my Thesis– Throughout this narrative, a central theme emerges that connects directly to my broader argument about the “Budapest Principle”—the system’s reluctance to impose liability on state agents for fear of hampering the effective operation of the criminal justice system.
The McBrearty case represents the exception that proves the rule. It took:
A decade of persecution
A murder investigation into an accident
Fabricated confessions
157 groundless charges
A destroyed family business
A public tribunal exposing systemic corruption
Millions in compensation
All to achieve what the Budapest Paper describes as the only circumstance where redress is likely: an “extreme case” with “clear evidence of malicious motives!
Malicious Prosecution: The Tort That Pierces the Shield– The legal claims at the heart of the McBrearty cases—malicious prosecution, wrongful arrest, false imprisonment—represent the narrow channels through which citizens can theoretically hold the State accountable. The tort of malicious prosecution, as discussed in the Budapest Paper itself, requires the plaintiff to prove:
The criminal proceedings terminated in their favour
The defendant instituted or participated in the proceedings maliciously
There was no reasonable or probable cause for such proceedings
The plaintiff suffered damage
The McBrearty case met every element. The proceedings terminated in their favour—all charges withdrawn, all suspects cleared. The malice was documented—Sergeant White’s explicit threat to destroy the business, the fabricated confession, the campaign of harassment. There was no reasonable cause—Barron had died in an accident. The damage was catastrophic—a destroyed business, shattered health, years of torment .
Yet even here, with evidence so overwhelming that the State ultimately conceded liability and paid millions, the settlements were made “without admission of liability” . The State paid, but it never admitted wrongdoing. The shield was lowered just enough to write cheques, then raised again.
The Budapest Paper’s Own Evidence
The Budapest Paper, my “signed confession,” specifically cites the McBrearty case as a landmark example:
“In November 2007 a Donegal publican, Frank McBrearty, settled his action against the state for personal damages arising from malicious prosecution, wrongful imprisonment, defamation and wrongful arrest for €3 million, albeit without any admission of liability. Mr McBrearty was the victim of a police conspiracy to frame him for the murder of one Richie Barron; who had in fact died accidentally. Such a substantial award could encourage a greater number of malicious prosecution actions coming before the courts” .
The paper acknowledges what happened but frames it as a potential “encouragement” to future litigants—while the system continues to ensure that such cases remain the rarest of exceptions.
Part Eight: Aftermath and Legacy
The Political Career
In a remarkable turn, Frank McBrearty Jr. entered politics. He was elected to Donegal County Council in 2009 as a Labour Party candidate, then re-elected as an Independent in 2014, and again in 2019—this time for Fine Gael .
But his relationship with Fine Gael lasted barely two months. In June 2019, he resigned from the party and announced he intended to sue it for post-traumatic stress disorder, claiming he was “the victim of internal party bullying” and was not welcomed by some elected representatives. He threatened that if excluded from power-sharing, he would “make the council unworkable” .
Later that year, he was involved in a controversy at a council meeting in Buncrana, accused of forcibly removing or stealing a mobile device from another elected official—an allegation he denied despite multiple witnesses .
The Living Wounds -The scars of the McBrearty scandal never fully healed. Frank McBrearty Jr.’s reference to PTSD in his Fine Gael dispute was not political rhetoric—it was a reminder that nearly a decade of persecution leaves permanent marks. The weight gain, the “blank mind,” the loss of focus he described to the tribunal—these were not temporary conditions .
Frank McBrearty Sr., reflecting after the 2007 settlement, expressed satisfaction at finally achieving justice but noted the cruel irony: eleven years had passed. The prime of his life, the expansion plans, the dreams for his business—all consumed by a fight for survival against the very state that was supposed to protect him .
The Institutional Response
No Garda was ever criminally prosecuted for the framing of Frank McBrearty Jr. Sergeant White, Detective Sergeant Melody, Detective Garda Fitzpatrick, and the others whose actions destroyed a family and a business faced no criminal consequences. Some were transferred. Some retired. Some may have faced internal discipline, but the details remain opaque .
The State paid millions, but it paid “without admission of liability.” The system protected itself to the last.
Conclusion: The McBrearty Scandal and the Budapest Principle– The McBrearty scandal is not an aberration. It is the Budapest Principle revealed in its purest form—a case study in how the Irish Neo Colonial legal and policing systems operate when their mechanisms of control are fully deployed.
Every element of my thesis is present:
The District Court as “cattle prod”: 157 charges, 60 court days, the summary jurisdiction weaponized for harassment .
Judicial reluctance to intervene: The system allowed this campaign to continue for years before any check was applied .
Procedural barriers: The family nearly bankrupted by legal costs, forced to withdraw their legal team from the tribunal, denied funding while the State funded lawyers for the Gardaí who framed them .
Opacity and unaccountability: The re-designation concealed, the Dáil uninformed, Billy Flynn’s 118 reports sent back to the corrupt officers they implicated .
The insular culture: Frank McBrearty Jr.’s description of “legal weasel words from the Dublin legal political establishment” captures it perfectly .
And at the end, when the truth finally emerged and the State was forced to pay, it did so “without admission of liability”—preserving the fiction that the system had not failed, that individual bad actors bore no responsibility the State would acknowledge, that the Budapest Principle of institutional non-liability remained intact.
Frank McBrearty Jr. achieved something remarkable. He cleared his name, exposed systemic corruption, and forced the State to pay millions in compensation. But as he himself acknowledged, the money could never compensate for the hurt, the pain, the humiliation, the lost years, the destroyed dreams.
The McBrearty case stands as Ireland’s most significant application of the tort of malicious prosecution—and as the most damning evidence that such redress is available only in the most extreme cases, after the most protracted battles, against the most determined opposition from the very system that claims to deliver justice.
As I have written: the High Court summary process may be “legalised theft,” and the District Court the “daily cattle prod.” But the McBrearty case shows what happens when the cattle prod is wielded with murderous intent—and how the system, when finally forced to account, still finds ways to protect itself.
Tribute to Billy Flynn-Billy Flynn was a remarkable man!A private detective who took on the full weight of the State and, through dogged persistence and 118 detailed reports, helped expose one of the worst corruption scandals in the history of the State. He did what the system’s own internal mechanisms refused to do: he listened, he documented, and he kept pushing until the truth could no longer be contained.
Sources
Magill magazine profile of Frank McBrearty Jr. (September 2005)
Wikipedia biography of Frank McBrearty Jr. (archived 2013)
RTÉ News: McBrearty action struck out (October 2005)
vLex Ireland: Frank McBrearty & Co Ltd v Commissioner of An Garda Síochána [2007] IEHC 373
BAILII: Full judgment text [2007] IEHC 373
Irish Examiner: Fallout from McBrearty scandal (November 2005)
Irish Examiner: McBrearty swore he would ‘get’ gardaí (November 2002)
Irish Times: McBrearty relieved at reaching settlement (September 2005)
Irish Times: McBreartys get €3m settlement (October 2007)
Irish Times: McBrearty to receive interim payment (July 2007)
The the Law Society of Ireland and the Honorable Society of King’s Inns are the exclusive, state-sanctioned guilds that select, train, and regulate. They are the human resources department of the neo-colonial edifice. This chapter demonstrates that these bodies are not neutral professional regulators but the primary engines for manufacturing a legal culture of deference, insularity, and institutional solidarity. Through a monopoly on professional training, a self-regulatory framework that prioritises guild protection over public accountability, and a governance structure rooted in colonial precedent, they ensure that the personnel populating the “deep drawer” are socialised to protect the system, not challenge it.
The Training Monopoly & Barriers to Entry
This inherited culture is preserved through strict control over entry. The Law Society of Ireland provides the only official professional training programme for solicitors, just as barrister training is provided exclusively by the King’s Inns . This is not a market-driven meritocracy; it is a state-sanctioned cartel. When the Competition Authority recommended breaking this monopoly and licensing other institutions, King’s Inns rejected it, claiming it would be an “interference by the executive with the independence of the legal profession” . The Authority admitted it had no power to force compliance, highlighting the guild’s impenetrable shield .
The consequences of this monopoly are tangible. The Legal Services Regulatory Authority review identified “both direct and indirect barriers to entry,” including the substantial costs of professional exams and training, which operate as a class filter . Furthermore, the LSRA found a “lack of clarity” in training programmes regarding required professional competencies, with syllabuses not derived from any public statement of core standards . The guild defines excellence internally, by its own Colonial traditions, not by public need or the real-life requirements of a modern “functioning” legal system.
The true depth of the guild’s power, however, is revealed in how it polices its own. This is the heart of the “Budapest Principle” as applied to the legal profession itself. The LSRA chair explicitly identified the core conflict: the Law Society acts as “both provider and regulator of its own professional legal training,” and by extension, as both representative body and disciplinary authority for its members .
The guild’s self-image is not that of a punitive enforcer but of a supportive fraternity. The chair of the Law Society’s Regulation of Practice Committee frames its role as “supportive, de-escalating,” focusing on “solutions rather than punishment”‘at least when it comes to its own. The stated aim is to help practitioners “get back on track” . This culture of support is reflected in the statistics. The Law Society conducts 350 investigations a year . Yet, in the last reporting period, only 68 complaints were upheld against solicitorsby the independent LSRA . The LSRA’s own data shows they receive over 800 complaints every six months (1,670 in 2025), but only around 11% are upheld . This raises a fundamental question: is a system focused on “de-escalation” and peer support effectively protecting the public, or is it managing risk to protect the practitioner?
When serious scandals erupt, the system’s protective instincts come into focus. Cases like Niall Colfer (who stole €1 million from clients) and the Acton and McDarby case (overcharging accident victims) raise serious questions about the Solicitors’ Disciplinary Tribunal’s willingness to impose the ultimate sanction. The case of suspended solicitor Declan O’Callaghan is particularly instructive. While the Solicitors’ Disciplinary Tribunal recommended he be struck off, the High Court on appeal upheld only one of four misconduct findings . The court found he had acted in a “serious” conflict of interest, a “grave professional error,” but crucially, the judge was “not minded to conclude that the solicitor was guilty of dishonesty” . This distinction—between a serious error that brings the profession into disrepute and actual dishonesty—allows the guild to manage deviance internally. The solicitor remains suspended for other matters, but the most damaging financial allegations were dismissed, preventing the full weight of public condemnation.
Protecting the Guild’s Boundaries
The guild also polices its turf against outsiders and alternative business models, preserving the traditional two-profession structure. In the recent High Court ruling in Mallon v The Minister for Justice 2025, the court reinforced the traditional division, ruling that a barrister cannot accept direct instructions from a client . This protects the “two-profession” structure, ensuring work flows through solicitors and barristers cannot build independent relationships with the public.
Significantly, the court relied on the codes of conduct of the Bar of Ireland and King’s Inns, giving the guild’s internal rules the force of law . Even though the barrister in question was not a member of the Law Library, they were still subject to King’s Inns’ code, which similarly mandates the solicitor intermediary. By embedding these private guild rules into public jurisprudence, the court—itself staffed by guild members—fortifies the monopoly against any challenge from consumers seeking direct, affordable access to legal expertise.
The Constitutional Shield
Ultimately, the guild’s most powerful weapon is the Constitution itself. When faced with the existential threat of legal reform from the Competition Authority, King’s Inns deployed the ultimate argument: it would be an “interference by the executive with the independence of the legal profession” and therefore unconstitutional .
“independence” is a double-edged sword. While judicial independence from the executive is a democratic necessity, the profession has weaponised this concept to shield its monopoly, its self-regulation, and its insular culture from any external democratic oversight. The “independence of the legal profession” has been reinterpreted as the independence of the guild from the public it is meant to serve.
The Law Society and King’s Inns are the foundation of the neo-colonial edifice. They preserve the “deep drawer” by controlling training and maintaining colonial-era governance structures, ensuring the inherited legal culture is transmitted, unchanged, to each new generation. The judges analysed in Chapter II are drawn from this pool, and the barristers who benefit from the “no argument” summary courts are members of this guild. Their self-regulatory framework, with its “supportive” approach and opaque disciplinary outcomes, ensures that even when the guardians err, the system protects itself. The scandals are managed, the boundaries are reinforced, and the guild endures. The court is the boardroom, but the guild is the human resources department, ensuring the right people are hired, trained, and protected.
As legal researcher Dr. Maeve Hosier noted in The Irish Times, the King’s Inns motto is nolumus mutari — Latin for “we will not be changed” . This is not merely historical trivia; it is a statement of institutional identity. Hosier argues that the present system for disciplining barristers is “archaic, complex and somewhat dysfunctional”. These people cannot let go of their Colonial robes!
On 16 January 1922, Dublin Castle—the symbolic heart of British rule in Ireland—was handed over to the Provisional Government. It was meant to mark the end of centuries of colonial administration. Yet when it came to the courts, the handover was less a revolution than a rebranding. The system that had policed and judged under the Union didn’t vanish; it was quietly absorbed, reshaped just enough to fly a tricolor, but structured to protect the same old interests. During the war of Independence the Irish republic had created the “Dail courts” these were actual Irish sovereign courts for as long as they lasted. The Dail Courts were the revolutionary judicial system set up by the First Dail as part of Sinn Fein’s strategy to undermine British rule in Ireland during the War of Independence (1919–1921). They represented a bold attempt to establish parallel institutions of governance for the self-declared Irish Republic, challenging the legitimacy of British courts and administration. Article 73. Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in the Irish Free State (Saorstat Eireann) 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 shall have been repealed or amended by enactment of the Oireachtas.
Courts of Justice Act 1924 established the modern system of District, Circuit, High, and Supreme Courts. There was no wholesale repeal or replacement of colonial-era laws, It was Business as Usual!
The Court of No argument
Across what i describe as the “working courts” District/Circuit/ High Court there are courts of no argument, summary courts; A summary court is a court of no argument! The claim/accusation is presumptively correct. District-Summary
Fist off i will remind you of the contents of the Budapest Paper, the insight we gained from their self reporting is what we should refer to as The Budapest Principle, that almost complete insulation from any consequences of their actions. The District Court to me this is the most egregious of all the courts because it impacts on the greatest number of citizens. This is the direct descendant of the colonial Petty Sessions, designed for social control and expediency, now rebranded in a tricolor. Despite it being the lowest of the 3 working courts.- It is by far the most open about its contempt toward any actual procedural law or upholding of traditional principles or individual rights.”Expediency” is the name of the game down here in the bowels of the states inner workings. What blew me away just now …….. I searched to find the conviction rate in the district court but it’s not public information, these people are so blatant, the lack of accountability leads to complacency. I did some more digging with the help of AI who found a claim (academia sourced) Data reveals a 94% conviction rate, a statistic that doesn’t indicate guilt rather a systems pre-determined outcome. why only 94% you ask- if they’re all presumtively guilty? Well because it’s good for business to let dome of the smaller fish free. This allows the judge to flex his bias in any given case, Better to appeal to the judges mercy, any attempt to argue evidence or defend yourself will result in the creepy old colonial lashing out. District courts sometimes resemble a cattle market where the cattle (YOU) have no value, Gardai will man-handle victims (yes victims, anyone denied a fair hearing or treated inhumanely for spite is a victim) in front of the judge, so everyone “knows their place”, the sheer number of cases is the big indicator that there was never any intention to give you any sort of fair hearing. I found myself in such a venue in 2013, I was accused of a Thought Crime, a popular and completely ambiguous legislative Go-To for young & old Gardai alike, It stated the Garda was arresting me because he thought that if he didn’t a breach of the peace would be occasioned, in this instance the CPS had withdrawn from the case & the Judge began cross examining the arresting garda on the stand, when i highlighted this was a kangroo court he launched into i tirade it’s from 2013 (so shit audio & visuals) The charge requires very little from the charging garda and the Court won’t suffer it being challenged, If you hire a solicitor, he has no ability to argue, He’s not Qualified, Arguments require Barristers to make arguments and the summary court is a court of no argument – you were presumptively guilty when you walked in! If the High-Court summary was legalised theft the District Court is the Daily use of the cattle prod, Keeps everyone in line without question. Keep your mouth shut you’ll only make it worse! The floggings will continue ’til morale improves……
i didn’t know there was someone filming, I didn’t know the guy before this incident- The video went Viral and some of the local newspapers carried the story. To my surprise the AG was aware, the reason I know she was aware is because I saw the take-down notice attributed to her office, this was a a scandal just by virtue of the fact that the AG involved herself, You’d imagine they’d have preferred to save face by launching some sort of superficial judicial review or something, but No; Carry on regardless! Obviously the video was later reposted by a different channel. I didn’t walk into that Court eyes wide shut that day, I didn’t know then what i know now, you could say they were my inspiration for figuring this out and sharing all this with you.
The High-Court– Civil
Ok, The key to solving this conundrum is our star witness who I will be introducing shortly before i do i’d like to pay tribute to the man, I have spent countless hours reading and re-reading his rulings, i have sat in his court room engrossed in his utterences to different defendents as if he were talking to me so I could understand exactly what message he was trying to convey. So, without further adieu, I Call the Master of the High-Court; Edmund Honohan. Edmund Honohan was an outspoken critic of the procedures of the civil High Court, While I wouldn’t presume to imagine him any sort of Ally in what I’m doing, I thought he was Principled and forthright and i assume he was aware of the type of back-lash he would recieve, His rulings were lights in the dark for me at times. In his 2011 ruling in AIB v Collins, Edmund Honohan delivered a searing critique of the High Court’s summary judgment procedures, portraying them as fundamentally unfair and skewed against defendants, particularly self-represented litigants. His main points centered on the denial of a true “fair hearing”: he argued that the requirement for a defendant to seek “leave to defend” was a “disrespectful and patronising” procedural hurdle that assumed guilt, forcing lay people to compete for a judge’s patience in a crowded “Monday morning list” where speaking too long or too briefly could be their undoing. He condemned the process as a “rush to judgment,” where final rulings were made on affidavit evidence alone—often based on hearsay—while denying defendants the basic right to cross-examine witnesses, treating it as “an optional luxury instead of a fair hearing entitlement”. Honohan traced this “plaintiff friendly bias” to its 19th-century origins and its reinforcement in 1926, arguing it created a “considerable practical imbalance” designed for expediency over justice, jeopardizing constitutional rights for the sake of “good productivity figures for the Courts Service” In 2015 a High-Court ruling claimed Honohan had acted outside his powers by referring a banks “untruthful” affidavit to the DPP. In 2019 The Supreme court overturned the Masters Ruling in Ulster Bank V O’Brien, the Supreme Court rejected Honohans legal interpretation of the facts. In 2019 The President of the High Court, Peter Kelly, signed an order removing all debt cases from his list but this was not the final spiteful insult, they removed all his rulings from the courts websites, I suppose you could accuse them trying to steal his legacy as a last act of spite. Are we all getting a good mental image of the type of people who assume the right to run this country?
The Court of Public Opinion. Members of the jury, You have been led to believe that the Irish Nation achieved some sort of Independence in 1922, You have been led to believe that revolution had seized the political stage and won the day on behalf of the Irish Nation; But today, here in the court of Irish Public opinion, the only legitimate authority on this island, I will prove to you beyond a reasonable doubt that the most powerful machinery of the state never left British hands. The charge is thus; The Irish legal structure you see here before you is not a Pillar of a revolutionary republic! It is a self-insulating, self serving monolith of colonial continuity. That it was never intended to provide justice but rather to maintain the colonial status quo. That its prime function is to protect the state from YOU! the Irish people. I will prove this not with rhetoric but with the states very own words and deeds. I enter into the evidence record exhibit A, the bureaucratic handover of 1 x colonial tool box (complete) contents including but not limed to; Crown Courts, Judges and laws. (Everything the young British colonial might need to start his own Irish-themed penal colony.) exhibit B, Article 73 of the 1922 Constitution, That imposed the British statute book in whole. exhibit C, the 1937 constitution; its preamble was the thin “Irish-Themed” veneer to hide the fact that this drawers access was controlled by London and its appointed agents. exhibit D, The Budapest Paper; A signed confession and Blueprint of the legal system.
Members of the Jury I will show you the thin veneer of the state will prove no longer sufficient camouflage.
I was trying to squeeze a ” you can’t handle the truth” into that paragraph but the opportunity never presented itself unfortunately.
i know……I know……. i’ve made a massive assertion…..stop stalling……. proving my Case is quite simple, the first 3 exhibits are self reporting and irrefutable. The last exhibit is an actual signed confession making my case for me. I know what you’re thinking right?…….. What level of insulated non accountability detachment would lead to them, if only briefly, to let it all hang out like that? As fortune would have it i had been trawling around the states websites when i came accross “The Budapest Paper”, They had opened the toolbox in order to boast to a peer and as so often happens today somebody caught sight of the open drawer, took a picture & posted it on the internet! you can find that picture in its original form original text at the link below. For those who want the summary continue reading…….. https://cronyisland.home.blog/2021/05/29/the-budapest-paper/
The Budapest Paper
is a 20-page internal legal memo prepared in 2008-2010 by Helen Whately, a Legal Researcher in the Office of the Director of Public Prosecutions (DPP) It was written in response to a questionnaire from the Hungarian Prosecutor General for a conference on prosecutorial liability, making it an official, if somewhat obscure, state document! The state has laid bare its own operational logic. This paper is a technical description of a system designed to preserve itself. It doesn’t argue a polemic; it documents the architecture of continuity and control.
It Explicitly Details the Inherited Legal System (The Drawer’s Contents) The very first substantive sentence declares: “The Irish legal system is made up from a combination of common law, statute law and constitutional law. The common law system relies on the doctrine of precedent, with a strong focus on previously decided case law”. This is a direct description of the “relabeled drawer”—the British-derived system that was inherited wholesale in 1922 and left to operate under new constitutional branding.
It Charts Institutional Continuity, Not Rupture The paper’s historical summary of the prosecution service is a masterclass in curated continuity: The 1937 Constitution provided for an Attorney General, a role that continued “both these functions” from 1937 to 1974
The “reform” of 1974 that created the “independent” DPP did not represent a clean break. It was a bureaucratic transfer of “all the functions capable of being performed” by the Attorney General. The new office was designed to be “independent”, a feature that insulates it from political change and public accountability, ensuring operational stasis.
This judicial reluctance is a perfect example of the “deep drawer” mentality: the inherited common-law culture of precedent and deference to state authority actively works to contain challenges to the system’s agents.
It Reveals the Law as a Tool for State Protection (The Drawer in Action) The paper’s concluding summary is its most damning confession. It states that the courts are “reluctant to impose any civil liability” on the DPP or the Gardaí because they fear it would “hamper the effective operation of the criminal justice system”.
It admits that redress is only likely in “extreme cases” with “clear evidence of malicious motives”. The default position is protection of the state’s operational machinery, that the law “neutralised” revolutionary change at the operational, societal level.”
It Embodies the Guardian Culture of the Legal Profession The paper itself is a product of the insular, self-regulating legal guild sanctioned by royal charter. It is written in dense, technical language for an audience of other professionals, not the public. Its purpose is to explain the Irish system to foreign counterparts, normalizing and legitimizing its restrictive approach to liability. This is the culture of the “Guardians of the Colony” at work.
The Budapest Paper describes a very specific legal maneuver: Ireland incorporated the European Convention on Human Rights (ECHR) in a way that created a facade of rights without enforceable mechanisms. This allows the state to rhetorically commit to rights while maintaining operational control. Lucky Bag Rights!
Tool + Purpose Tusla was an example i used earlier to demonstrate the tool-box in action, Tusla is a very specific tool with a very specific purpose; As laid out in the statute book. The Statute is a clear & precise instruction to the public servants working in the established roles. Tusla …is derived from the Irish words Tus (beginning) and La (day) It was established as an independent state body in 2014 by the Child and Family Agency Act 2013, which is its founding legal instrument. Its core mission is to support and promote the development, welfare, and protection of children while encouraging the effective functioning of families. The Tool in Action
The Maurice McCabe Affair (The “Tool” Against a Whistleblower): This is the most infamous case. False and malicious allegations of child sexual abuse were fabricated against Sergeant McCabe by elements within An Garda Síochána and then formally channeled through Tusla’s system. Tusla’s failure to properly investigate these referrals allowed the falsehoods to fester, causing profound damage. Shockingly, as revealed in the “Budapest Paper” analysis, Tusla even opened files on McCabe’s children, demonstrating how the protective apparatus could be turned against an entire family to silence a critic.
The “Grace” Case & Institutional Failure: This scandal involved the horrific long-term abuse of a vulnerable adult with disabilities in a state-funded foster care home. Multiple warnings were ignored by Tusla’s predecessor and later by Tusla itself. This shows the toolbox failing in its core mission due to institutional negligence and a culture of unaccountability, while simultaneously being used aggressively in other contexts.
The “Mother and Baby Homes” Data Breach: In 2021, Tusla inadvertently emailed sensitive personal data from the Mother and Baby Homes Commission to a wrong address, affecting over 100 people. This wasn’t malicious weaponization, but it demonstrated a profound carelessness with powerful personal data—the very fuel of its protective (or coercive) functions—eroding public trust.
Systemic Issues & Silencing Dissent: Beyond headline scandals, patterns emerge: families in contentious custody disputes reporting feeling weaponized reports against them; foster care advocates being sidelined. The move to state-control Guardian ad Litems (independent child representatives in court) is a critical current example. If the state controls this theoretically independent “voice of the child,” it removes a key check on its own power within the family law system, further consolidating the toolbox’s control.
Taken together, these cases are not random failures but diagnostic proofs of the system’s inherent logic. Whether through malicious fabrication, passive negligence, or bureaucratic redesign, the outcome is the same: the expansion of state discretion and the erosion of actionable accountability. The tool operates within a framework where its wielders are protected by the very ‘reluctance to impose liability’ that defines the wider justice system. A Supposed a statute created for protection becomes, in practice, an instrument of control, its operation shielded by the same principles that insulate the Gardaí and the DPP. The toolbox’s contents may vary, but the mechanism of the lock remains unchanged.”.
CLOSING ARGUMENT
Members of the jury, You have heard the evidence. Not from me, but from the state itself. We began with a charge: that the most powerful machinery of this state never left British hands. That its legal system is not a pillar of justice, but a self-insulating monolith of colonial continuity. A system designed not to protect you, but to protect itself from you.
The proof is in the record.
Exhibit A: The 1922 handover. Not a revolution, but a receipt. A bureaucratic transfer of a complete colonial toolbox—courts, judges, laws—all accepted without question.
Exhibit B: Article 73. The legal freeze. It imposed the entire British statute book as our own, relabelling the drawer but changing none of its contents.
Exhibit C: The 1937 Constitution. A masterful façade. A Celtic-revival portico built to hide the old machinery within, its preamble a veneer of sovereignty over the unchanged gears of control.
But the cornerstone of our case is Exhibit D: The Budapest Paper. Their manual. Their confession. In their own, dry, technical language, they admit the core operating principle: the courts are “reluctant to impose any civil liability” on the state’s agents. Why? Because it might “hamper the effective operation of the criminal justice system.”
Let that sink in. The smooth operation of the system is more sacred than your redress. Its continuity outweighs your liberty.
And we have seen this toolbox in action. We saw it in Maurice McCabe—not just a whistleblower silenced, but a family attacked through the very agency, Tusla, created to protect children. We see it today, as that same agency moves to silence the voices of children in court. We see it when a door is kicked in without warrant, and the Budapest Principle ensures there will be no consequence.
They will tell you this is about stability. About the rule of law. I ask you: Whose law?
It is the law of the drawer. The law of continuity. The law of the unaccountable.
You might think, “I can’t handle the truth.” But the truth is, they rely on you not knowing it. They are comfortable because they believe you will accept the facade.
Today, you can prove them wrong.
Look at the evidence. See the pattern from 1922, to 1937, to the Budapest Paper, to a family’s terror in County Cavan. It is one unbroken line. A system engineered for its own perpetuation, where rights are ornamental and redress is a mirage.
The charge stands proven. Beyond a reasonable doubt.
This is not a court of the state. It is the Court of Public Opinion—the only legitimate authority. So I ask you to return the only verdict that justice permits: Guilty. Guilty of maintaining a colonial machine. Guilty of placing system above citizen. Guilty of betraying the very republic it claims to serve.
Do not mistake the flag for the foundation. The furniture has been rearranged, but the house is still the landlord’s. It is time to serve the eviction notice.
We begin our Journey down the rabbit-hole with two very visual but contradictory accounts in the aftermath of the war of independence….. the first is from Kevin O’Higgins a deputy of the revolutionary Government;
there was no State and no organized forces. The Provisional Government was simply eight young men in the City Hall standing amidst the ruins of one admin istration with the foundations of another not yet laid, and with wild men scream ing through the keyhole. No police force was functioning through the country, no system of justice was operating, the wheels of administration hung idle battered out of recognition by the clash of rival jurisdictions
Our second account comes from Joseph Brennan, a senior civil servant who had served with the British colonial administration in Dublin prior to during the war of independence;
The passing of the State services into the control of a native Government, however revolutionary it may have been as a step in the political development of the nation, entailed, broadly speaking, no immediate disturbance of any fundamen tal kind in the daily work of the average Civil Servant. Under changed masters the main tasks of administration continued to be performed by the same staffs on the same general line of organisation and procedure
I sourced these statements from a Trinity Ph.D students thesis titled “The civil service and the revolution 1912-1938” It was an interesting read but his attempts to plaster over what I describe as colonial continuity only compelled me to dig ever deeper into the civil service; which of the two witness statements was true and which was false? Certainly Brennan’s Business as usual statement should cause mental fatigue to any nationalist minded readers; Brennan represented the empire, he had been part of the colonial infrastructure, during the war of independence; he had been batting for the other side, so to speak. The calm & acceptance of Brennan seemed almost misplaced, he made me question what he knew that i didn’t? Who was right? The revolutionary minister standing in the ruins, or the colonial civil servant for whom nothing fundamentally changed? The answer is that both were true—and that contradiction is the hidden foundation of the Irish state.
Kevin O’Higgins quote seemed far more grounded in the history I had learned at school, our republican protagonist describes the aftermath of a war, he paints a picture of eight young men standing among the ruins they had created their task to lay the foundation of the new state.Those who objected to the treaty were described as “screaming through the keyhole” signifying that all was not settled yet. The civil war The Civil War, a traumatic and divisive conflict, was the immediate context that forced the new government’s hand. With Britain threatening re-occupation if order wasn’t restored, Collins found his options constrained., Britain was now pulling Collins strings. Collins was taken out of the equation early which should have been predictable once they’d identified him, He was reported to have threatened the Bank of Ireland & other British banks,(check out the work of Peter Ryan UCD) I’m fairly sure if he had been left alive, he’d have been a powerful headache for the colonial establishment; which is also strong motivation for his assassination. We’re shifting focus briefly to Dev now, one of my most hated historical figures, Eamon de Valera ranks right up there with Cromwell, Churchill and Thatcher for me. I’m not sure at what point i established this deep inner loathing for the man but even his voice is agony for me, putting his personal traits aside, His actions prior to the treaty where he seemed to prefer the counsel of Lloyd George as opposed to his own cabinet, His unforgivable action in leading the split and starting the bloody civil war, once Collins was out of the scene, after the civil war he had started about the Treaty he had clearly ambushed Griffith and Collins with, he was then able to enter politics, we will dig more into his later actions because he was instrumental in the actions which lead to the ’37 constitution.
The 1922 Transfer.
The state was NOT created “By the people; for the people”, the Colonial State was transfered in whole to the newly created “Free- state” as the Trinity-head above indicates in his title: the civil service had been planning & preparing for the Home rule bill since 1912. These instituions represented the colonial yoke around the Irish nations neck, they had been complicit in every horror and atrocity carried out on this Island. Mr Brennan it seems had the inside track in the transfer he knew roughly what to expect & all the mechanisms necessary to make it work. The civil service had already long negotiated their guarantee of their positions, pay and conditions. What use would the “new revolutionary government” have for the shackles & chains of the old enemy? It wasn’t a choice, it was an imposition; you see we didn’t win the War of Independence, the delegates were “summoned” to London and and forced to sign the Treaty under threat of national annihilation, the population had already been whittled down from somewhere between 8-9 million in the 1840’s to less than 3 million in 1922. There were no demonstrations in the name of humanity or outcry of empathy; these people were not our friends, that was well demonstrated! Those who who belonged to the colonial class did not share our ambitions as a nation; we did not share the same history, We don’t even share the same accent. What they wanted was what was best for themselves, for their institutions, they had run the administration for hundreds of years in one form or another. Business as usual.
Constitution of the Irish Free State (Saorstát Éireann) Act 1922
The Constitution established the Irish Free State as a dominion within the British Commonwealth, which created a parliamentary system under a constitutional monarchy.
Foundation & Core Principles: The Irish Act’s preamble stated that “all lawful authority comes from God to the people” . Article 2 declared that all powers of government were derived from the people of Ireland.
Mandated by Treaty: Its contents were firmly shaped by the requirements of the 1921 Anglo-Irish Treaty. A specific clause (Section 2 of the Irish Act) made any part of the Constitution “repugnant” to the Treaty “void and inoperative,” placing the Treaty as superior law at that time .
Key Provisions: It contained a democratic bill of rights, guaranteed free elementary education, and made Irish the national language (with English equally recognized as official) . It also included the controversial Oath of Allegiance to the Constitution and fidelity to the British Crown, required of all parliamentarians.
Paddy’s Lament! I have often heard Irish people lament, “The only thing that changed in 1922 was the colour of the post boxes”, there was far more truth in that statement than many of us ever wanted to accept. So as described above the entire colonial mechanism/toolbox was transferred, The RIC/DMP;(royal Irish constabulary/ Dublin Metropolitan Police) many were rehired by the newly established Gardai, The courts services, the judges (along with kings inns & the law societys monopoly) all appeared back in the same venues quoting the exact same British colonial laws from the exact same colonial statute book. The civil service, The AG (attorney general);the Governor General The entire “Permanent government; There are 3 branches of government, only 1 changes at election time, What remains is your Permanent Government. These institutions who share no history with the people they purport to act on behalf of and have a historic contempt for (we’ll cover their attempts to insert themselves and revise history in a later chapter) became the “Irish” permanent government,”Business as usual was right !A quick costume change, they picked up the regalia of the fallen rebels & masqueraded as the “new revolutionary government” For the average working class paddy i’m sure it would have been impossible to tell much had changed because it hadn’t. From 1922 the situation for the free-state government was pretty dire, Britain had left Ireland in a completely broken state; The currency was British and acted as a financial control system,an attempt to create a national bank didn’t last for long Ireland had never enjoyed an industrial revolution under colonialism so there was no industrial base to speak of. All the banks and possible lines of credit were British. Independence came with significant financial liabilities. Under the Anglo-Irish Treaty, the Free State was to assume a share of UK debt estimated at 80% of GDP, though this was later renegotiated. It remained liable for land purchase annuities, debts from pre-independence land reform that amounted to about 40% of GDP. In the Dail there was a party in government, Cumann na nGaedheal but not much else the Anti-Treaty supporters abstained in disgust, it was a single party dail in effect, These people would be easily managed by the civil servants, in their day to day operations, no doubt living under the specter of British occupation if they didn’t properly defer to best legal advice.(The treaty) Are we getting any “independence” or “Sovereignty vibes” here? in 1927 de Valera, a man so repulsed by the Treaty he had forced the bloody civil war, had a sudden change of heart and decided he was ready to be the face of British neo-colonialism in Ireland. He broke with the Anti treaty side and created Fianna Fail as his political vehicle.
The political landscape changed dramatically in August 1927, triggered by two key events:
Assassination of Kevin O’Higgins: The murder of the Cumann na nGaedheal Minister for Justice in July 1927 created a political crisis.
New Legislation: The government passed an Electoral Amendment Act, requiring all elected TDs to take the Oath of Allegiance to enter the Dáil.
Faced with the choice of taking the oath or forfeiting their seats, de Valera led Fianna Fáil into the Dáil on August 11, 1927. From that point forward, Fianna Fáil became the major opposition party, setting the stage for its electoral victory in 1932
1931 Public Safety Act (Amendment No. 17) It wouldn’t be long before they were up to their old tricks, Creating a state of emergency mechanism and a military tribunal (the “Constitution (Special Powers) Tribunal”) with powers to try civilians for political offenses and impose severe penalties, suspending normal constitutional rights. Jesus that didn’t last long did it? Less than a decade after their claim of “the freedom to be free” the Dail reached into the colonial tool-box and began acting in the exact same manner as the people they had risen to oppose. It’s not really surprising to me given the colonial straight-jacket they found themselves trapped in
From wiki The Statute of Westminster, 1931 was an act of the British Parliament passed on 11 December 1931 that granted full legislative autonomy to the Dominions of the British Empire—Canada, Australia, New Zealand, South Africa, the Irish Free State, and Newfoundland. It formalized the principles of equality and self-governance established in the Balfour Declaration of 1926, ending the British Parliament’s authority to legislate for the Dominions without their consent.
Key Provisions:
Section 4: No future British law could apply to a Dominion unless that Dominion explicitly requested and consented to it.
Section 2(1): Dominion laws could not be invalidated on the grounds of being “repugnant” to British law, affirming their legal independence.
Section 3: Dominion parliaments gained the power to make laws with extraterritorial effect.
Section 2(2): Dominions could amend or repeal laws related to the line of succession to the Crown, though this required mutual consent among all Dominions.
While the statute applied immediately to Canada, the Irish Free State, and South Africa, Australia, New Zealand, and Newfoundland had to adopt it through their own legislation. Australia did so via the Statute of Westminster Adoption Act 1942, backdated to 1939. The Irish Free State later became a republic in 1949 and repealed the statute, while South Africa followed suit in 1961.
The decade following Fianna Fáil’s accession to power in 1932 is typically narrated as a relentless, sovereign march toward the Republic. This narrative, however, confuses the stagecraft for the structure. The political developments of the 1930s and 1940s were not acts of untrammeled sovereignty but a brilliant, yet bounded, political theatre. This theatre was performed on a stage built and permitted by the imperial structure of the British Commonwealth. Despite the dramatic change in political symbols, the underlying legal, administrative, and diplomatic realities ensured a profound continuity. The era culminated not in a clean break, but in the United Kingdom’s Ireland Act of 1949, which legally codified the enduring, constrained nature of Irish independence.
Act I: The Enabling Stage – The Statute of Westminster (1931) Every revolutionary act of the 1930s began with a British legal instrument. The Statute of Westminster was the essential permission slip, the deus ex machina (ex machina) that made subsequent Irish constitutional drama possible. By removing the UK Parliament’s power to legislate for the Dominions, it granted the Irish Free State the legal authority to dismantle the Treaty settlement from within. De Valera’s subsequent “sovereign” acts—the abolition of the Oath, the renaming of the Governor-General, the External Relations Act—were, in cold legal terms, exercises of this delegated power from Westminster. They were not assertions of inherent, revolutionary sovereignty but the utilisation of a constitutional escape hatch provided by the imperial centre itself. The stage for independence was, paradoxically, built by the Empire. I’ve heard it argued that the state never adopted the Act but regardless the permissions existed and we have evidence they were exercised.
Act II: The Performance – Rebranding the State Fianna Fáil’s entry into government in 1932 framed the first act of submission: taking the Oath of Office to a King he repudiated, thereby being absorbed into the very constitutional order they aimed to subvert. Their genius lay not in revolution but in strategic re-scripting. The 1937 Constitution (Bunreacht na hÉireann) was the masterstroke of this political theatre. It provided a magnificent new sovereign facade: the people of Ireland as the ultimate source of authority, a directly elected President, the special position of the Catholic Church. Yet behind this facade, the administrative core of the state remained untouched. The same civil service, largely inherited from the British administration and the Free State, governed. The same legal system, rooted in common law, operated. The document itself was not the product of a constituent assembly but was drafted by a committee led by civil servants like John Hearne, ensuring technical continuity beneath the symbolic transformation. It was sovereignty as rebranding.
The true test of this sovereign performance came not in peace, but in crisis. During the Emergency (1939-1945), the state’s instinct under pressure revealed its operational continuity with its colonial predecessor. The Offences Against the State Act (1939) and the deployment of internment without trial were tools lifted directly from the colonial toolbox, used to prioritise state control and stability over revolutionary liberty in a manner functionally identical to British rule. The mask of the Republic slipped, revealing the familiar face of a security state.
Act III: The Reality Check – The Canadian Affair (1947-48) The gap between Ireland’s political self-image and its administrative-legal reality within the British system was starkly exposed by diplomatic farce. In 1947-48, when the Irish government attempted to act as a normal foreign state by presenting its new President directly to the Canadian Governor-General, the old Commonwealth machinery abruptly whirred back to life. The UK’s advice to Canada—that the Irish President was not a head of state for Commonwealth purposes—forced a humiliating public climbdown. This incident was a perfect case study: the moment Ireland stepped outside its designated, anomalous role within the imperial system, it was reminded of the invisible walls of its box. The theatre of sovereignty did not extend to the diplomatic floor.
Final Curtain: The Legal Codification of Constraint – The Ireland Act (1949) The climax of this era of constrained sovereignty was authored not in Dublin, but in Westminster. The UK’s response to the Republic of Ireland Act (1948) was far more than recognition; it was a definitive legal clarification of Ireland’s status. Section 2(1) of the Ireland Act (1949) stipulated that the Republic of Ireland “is not a foreign country” for the purposes of British law, and that its citizens were not aliens. This was the ultimate, unambiguous statement from the former imperial power. Despite seventeen years of dramatic political theatre—the new constitution, the neutrality, the final severance of the Crown—Ireland’s new republican status was, in the final analysis, defined and circumscribed by an Act of the UK Parliament. It legally crystallised the “negotiated continuity” of 1922, rendering visible the walls of the Commonwealth box that had always contained the performance.
(1949 Ireland Act UK) the Republic of Ireland is not a foreign country for the purposes of any law in force in any part of the United Kingdom or in any colony, protectorate or United Kingdom trust territory, whether by virtue of a rule of law or of an Act of Parliament or any other enactment or instrument whatsoever, whether passed or made before or after the passing of this Act, and references in any Act of Parliament, other enactment or instrument whatsoever, whether passed or made before or after the passing of this Act, to foreigners, aliens, foreign countries, and foreign or foreign-built ships or aircraft shall be construed accordingly.
Conclusion: The Nature of the Freedom Achieved The period 1932-1949 did not lead to “sovereignty” or “Independence” instead it was a process of managing independence within inherited confines. The “freedom” achieved was the freedom to act within a pre-defined box, its walls built by the Statute of Westminster and finally made visible by the Ireland Act. The state’s prodigious energy was spent on changing the political symbols—a vital and meaningful endeavour for national identity—while leaving the deep administrative, social, and economic structures, the true levers of daily power and continuity, fundamentally intact. This was the essence of the post-colonial condition: a sovereign theatre performed on a stage one did not fully own, a republic that, in the eyes of its former ruler, was legally “not a foreign country.” The performance was powerful, popular, and politically transformative, but it was, from first act to final curtain, a theatre of constrained sovereignty. Crucially what was the plight of those for whom all that blood was spilled, what had changed? This grand political theatre, however, had a neglected audience: the working-class Irish in whose name this independence was purportedly won. While the state meticulously staged its sovereign performance—changing flags, constitutions, and diplomatic titles—it invested far more energy in sustaining this narrative than in materially raising or integrally incorporating its most disadvantaged citizens. Every attempted flex of this constrained sovereignty came at a direct cost to them. The conservative economic orthodoxy preserved social stratification; the “Emergency” saw their liberties curtailed by their own government’s special powers; the cherished Irish-language revival often served as a cultural distraction from economic plight. The ultimate irony of 1932-1949 lies not just in sovereignty circumscribed by London, but in a revolution sequestered from its own people. The state perfected the art of gaslighting a nation into believing it was free, while the freedom it offered—for those trapped in tenements, on subsistence farms, or in emigrant ships—remained a scripted illusion, a change of scene that left the old, hard structures of class and power stubbornly intact.
My intent with this article is to preface my later deep dive articles into the Irish state, We’ll be diving into the creation of the state; it’s legislative changes, intentions & structure. I’m sure you’ve heard of the “Deep state” & “Oligarchs” but probably not in the context of Ireland before; there’ll be some interesting articles on that with a wealth of historical & modern information. We’ll examine the legal system & its deplorable history, using the historical & legal evidence to figure out why our courts & officials are the way they are.
In everyday life in Ireland you can feel the tension, people are struggling to keep up with the states gaslighting, everybody knows that there is something wrong ,everyone is carrying around different pieces of the puzzle but we can’t quite put it all together; no fault of our own, it is a cavernous rabbit-hole I’m about to lead us into; not a hole that i have imagined into existence there will be links to the original documents upon which the assertions are based (for those who need to verify for themselves.)
In the 15 years i have been researching this topic , I have watched & shared the sentiments of my family, friends and neighbours , i’ve shared everyones outrage at various times with what has been happening in this country, our country where we’re not permitted a say. I didn’t set out on a path to undo most of what i had been lead to believe; that is where we’re going though! i think The imposition of the Bailout, the loss of my business & attempts in the courts to defend myself & my interests were treated with complete contempt, i was a nuisance to their carefully scripted summary judgements. I’m a stubborn man, i kept digging ; my biggest hurdle was my own incredulity at what i was discovering; the genie would not go back into the bottle, I was haunted by the reality of it all and struggled to process it.
These are the weeds of history, many historians have jousted back & forth on this field, from both sides of the bias. It is not my intention to drag you into those weeds with “he said/she said” circular style arguments, it’s like beating a dead horse and isn’t what I have in mind. Instead we will be examining the states tool-box & tools, we’ll be examining what purpose those tools were claimed to be created for and by examining the legal record we can see exactly how they were used, To give you a quick example that should still exist in recent memory, we could use the “Tusla” example. Tusla was created for a specific purpose all laid out in the legislation, Dail debates etc however the first noteworthy thing they did was broke the law and became a coercive tool of the state,”Oooooopppps” the state isn’t going to prosecute itself and there is no prosecutor in the state acting on your behalf, The DPP via the Attorney General has a monopoly on prosecution. if you want to know why things are the way they are, simply keep reading…….
In summary, the crucial social function provided by the DPP and the Gardaí has made the Irish Courts reluctant to impose any civil liability on them; fearing that such an imposition would hamper the effective operation of the criminal justice system.
Allow me to explain my concept of the “states toolbox” it is designed so the reader can understand, The legal tradition thrives in ambiguity;in subterfuge, twisting words & meanings the toolbox is designed to overcome the bolloxology, The tool-box has Drawers; each drawer represent an institution of the state, within the drawer are the various tools that institution created in order to achieve certain functions. If you need to know the specific purpose of a tool, you must refer to the owners manual which represents the constitution and statute book. In order to view the function of the tool in real life we can simply refer to the court/public record. This method means we can be clear & objectively honest with ourselves about what we’re reading/learning.
While we have all this institutional & political subterfuge ahead of us i would like to pay tribute to YOU; the Irish people for the way you are willing to stand together, for the community spirit that has been demonstrated in every town & village. Irish people can recognise a wrong & mobilise quickly, i can point to any amount of examples, whether it’s bin/water charges,farmers protests state attempts to glorify the old colonials right up to the recent reckless efforts to turn Irish people into a minority in their own towns. Irish people have been fighting oppression longer than anyone, we’re not a braggadocios people but that’s just a historical fact! That rebellious spirit endures amongst the Irish people today, it’s in our history, it’s in our dna. I am proud of my people & honoured to stand with them.
Another recognition i’d like to make is to all those who spoiled their votes in the recent presidential election, people are realising that voting just creates yet another coalition with the exact same policys, a carousel of fall guys for you to choose from but don’t ever be under the illusion that it will bring change; something a large proportion of you have already figured out. I started the “Deregister your vote”idea/ movement a few years ago & which i will explain in detail in later articles; we’ll deal with the philosophy & the legal implications of it. If you haven’t figured it out yet “voting them out” doesn’t work, people have been repeating the same mantra & keep getting the same coalition since the bailout, Fianna FailGael!
I hope this introduction has whet your appetite. ‘Neo-Colonialism in 21st Century Ireland: Part 2—The Creation of the State’ will be published simultaneously. I know reading can be a chore, but I’m a working-class northsider who didn’t pay attention in school; this language comes from fifteen years of research. The words might be complex, but the truth they reveal is straightforward.
DECISION of THE MASTER OF THE HIGH COURT 16th November, 2011
Language is important. A defendant in a case of the types listed in Order 2 of the Rules of the Superior Courts is, apparently, not ipso facto entitled to defend the claim unless the plaintiff says he may. Instead, he must first obtain from the Court “leave to defend” (O. 37, r.10). The phrase is unfortunate and, historically, originated in the procedures of another era. It is peculiarly inappropriate in the present age in which citizens enjoy the full panoply of human rights, including, of course, the right to a fair hearing before the Courts.
The Rules of Court do not specify what the defendant needs to show if he is to succeed in resisting the plaintiff’s application for summary judgment.
Note that any defendant refused “leave to defend” has only one further avenue of redress: an appeal to the Supreme Court. For a litigant in person, a self-representing or “lay” litigant, this is a mountain to climb. To passers by, this does not look like even handed justice.
Quite probably, present day judges who employ the phrase “leave to defend” do not pause to consider the implicit slur on the defendant’s expressed position. The phrase is, unconsciously, disrespectful and patronising. Unfortunately, the context in which the “leave” is granted or refused only serves to confirm a lay litigant’s impression that this is about whether the Court will be patient enough to tolerate his efforts to explain his position. He gets one chance. He is one of perhaps one hundred matters listed before one judge on a Monday morning. Everybody talks fast. The lay litigant must feel cowed to keep his arguments short. That may be his undoing. As recently as 1999, in Bank ofIreland v. Educational Building Society, 1 I.R. 220,the Supreme Court quoted Barry L.J. from an old Irish case Crawford v. Gilmore [1891] 30 LR Ir 238, 245:-
“I am of the opinion that . . . the mere length of time which has been occupied by the argument of this case . . . shows that it does not come within the rule which allows final judgment to be summarily marked on motion.”
In other words, the self-representing litigant’s chances of getting “leave to defend” may depend on the time he takes to make his case (the longer he takes, the better his chances), and if he had lawyers who could spin out the argument, his chances would greatly improve. Or perhaps Barry L.J. was just joking?
Then again, it is perhaps the crowded Monday morning list which is the joke? We need to face up to the disturbing possibility that the lay litigant may not be getting a fair hearing on a Monday morning. We need to disassemble all the features of the process and critically check them for the decay of injustice.
One of the problems is that the Monday morning list is comprised of a mixture of different types of “motions”, so called, some of which are interlocutory and some final. The motions this decision is concerned with are “motions for liberty to enter final judgment”. These are applications by plaintiffs to, in effect, deny the defendant his “leave to defend” and to permit the plaintiff to get and enforce judgment for the amount claimed. Clearly, this is a “trial” for the purposes of the “fair hearing” article (Article 6) of the Human Rights Convention. Lose on a Monday and the defendant has lost the case. This type of motion, therefore, is clearly not an interlocutory application for some temporary order pending a full hearing at some later date.
The upshot is that we have a trial being processed in a Monday list as if it were just another interlocutory application. Plaintiffs often offer hearsay evidence in support of the claim when, according to Order 40(4) affidavits should be confined to such facts as the witness is able of his own knowledge to prove “. . . except on interlocutory motions”. (Indeed, properly structured as a trial, the plaintiff should probably be governed by Order 39, “witnesses at the trial of any action shall be examined viva voce”).
Order 40, rule 1 provides that “upon any motion . . . evidence may be given by affidavit but the Court may order the attendance for cross-examination of the person making suchaffidavit”. In my experience, the Court will not entertain a lay defendant’s application to cross-examine the plaintiff’s deponent on a Monday morning. Notices to cross-examine are being set aside by the Court as if cross-examination was only an optional luxury instead of a fair hearing entitlement. (See, for example, Order of 30th May, 2011, in AIB plc. v. Sweeney and Another [2010] 2403 S).
In an effort to provide for earlier “trial” dates for cases which are indefensible, the judges have created a fast track procedure which jeopardises some defendants’ right to a fair hearing. This is not a price worth paying just to achieve good productivity figures for the Courts Service.
A RUSH TO JUDGMENT?
It should be borne in mind that the litigation procedures spelt out in the Rules of the Court are not writ in stone. We made them. We can change them. No plaintiff has a Constitutional right to be facilitated with a fast track process such as that now available with the Summary Summons procedure. The classic procedural model, the Plenary hearing (or “evidentiary” hearing as the Americans call it), with full adversarial clash and live testimony, has always been regarded as the fairest trial. It is due process. It is natural justice in action. Modify it and you may unwittingly damage in-built protections serving the interests of justice.
It should be borne in mind that no litigant has an entitlement, as a matter of law, to have his case fast tracked. The origins of today’s summary procedure were in mid 19th century legislation to improve the efficiency and transparency of the bills of exchange mechanism. It was thought that encashability should be underpinned by a procedure for prompt hearing of legal challenges as to validity. In effect a defendant should not be permitted to avoid liability by abusing the litigation process on the strength of an unstateable defence.
Obviously, abuses of process must be corrected. The Superior Courts have inherent powers to do so. The summary judgment option was extended to other classes of action in the post Judicature Act Rules of Court (in Ireland the 1877 Rules) and somewhere along the line, the test operated by the court lost contact with its (abuse of process by the defendant) origins, and sought to focus on the reality of the defendant’s supposed defence: plaintiffs did not have to prove abuse of process, instead, defendants have to prove a stateable defence. This plaintiff friendly bias and the shifting of the burden of proof, although heavily constrained by appeal courts, nevertheless created a considerable practical imbalance between the parties. No plaintiff can complain of injustice if his application for summary judgment is unsuccessful as he can proceed with the case on the standard track. By contrast, the defendant is clearly exposed to injustice if the hearing of the motion is not wholly in accordance with the law and precedents in that regard. Only comparatively recently has the UK recast the procedure to allow a defendant to avail of a similar application to summarily dispose of the plaintiff’s case if there be no real case to answer (see Three Rivers [2001] 2 AER).
It was probably not a good idea to reinforce this one-sided procedure by creating an entirely new class of summons for these actions in the Free State’s 1926 Rules of Court. The new rule included all types of action formerly dealt with by Writ of Summons specially indorsed, and later again a subset of these were given their own summons, the Special Summons, leaving a very limited range of actions (broadly speaking, for “special” or known debts or other clear cut, black and white claims), to be processed under Order 37 . The 1926 Rules provide that a plaintiff must seek summary judgment in such a case. There is no other route (save, of course, plenary hearing by consent). It would appear, logically that no plaintiff should use the Summary Summons unless he is confident of securing summary judgment. If he is not confident he should use the Plenary Summons. (But they don’t, do they?). In short, these plaintiffs are being given special treatment by the legal system, deserved or undeserved, but at what cost?
Under O. 37, plaintiffs’ claims can be processed speedily when the sum involved is already ascertained, and when the plaintiff’s solicitor confirms to the Court that there is no defence to his client’s claim. This latter requirement allows the Court to rely on its own officer’s opinion and mark judgment when a defendant has not disputed the plaintiff’s evidence or advanced any contrary legal argument.
The opinion of the solicitor for the plaintiff, even if he is an officer of the Court, must surely be the most unsafe basis for any Court’s determination. Even without any sworn testimony from the defendant, the plaintiff’s own case may be discovered to be not at all as clear as his solicitor may have thought. If the Court chooses to review the papers and concludes that the solicitor’s opinion is wrong, what is the sanction for the solicitor’s unprofessional opinion? Is there any? If not, how often has an injustice been perpetrated when the Court relied on such an opinion without checking for itself? And what of the possibility of deliberate false certification by a solicitor who, far from misreading the possibility, actually knows that the defendant has a good defence?
What we have is a fast track procedure in which the Court may proceed to enter final judgment because it has the plaintiff’s solicitor’s “letter of comfort” as to the appropriateness of granting summary judgment without a plenary hearing.
See? All of the momentum behind a Motion for Liberty to enter final judgment on a Summary Summons is driving the Court towards a fast track outcome. It is difficult to see how a defendant can switch the speeding train back onto the standard track. Giving a plaintiff the chance to avail of the fast track necessarily involves procedurally shortchanging the defendant, perhaps even to the point of infringing his right to a fair hearing. In short, the question is: can the “trial” which takes place in the Monday list sometimes be so constructed in the plaintiff’s favour as to deprive the defendant of his human rights?
THE MONDAY MOTION: THE DEFENDANT’S PERSPECTIVE
The defendant is served with a Summary Summons by which it appears the Chief Justice requires him to enter an appearance in the Central Office and advising that:
“If you do enter an appearance, due notice of the day and hour of the hearing of this Summons will be delivered at the address for service.”
After he has found out what an “appearance” is (“entering an appearance” does not mean “showing up”!), the defendant dates and signs a pre-printed form and confirms that, “the said Defendant requires delivery of a Statement of Claim”.
He then waits for “delivery of a Statement of Claim” but none arrives. Nor is he given “due notice of the day and hour of the hearing of the Summons”. Instead, he gets a “Notice of Motion” which announces that the plaintiff will apply to the Master of the High Court for “liberty” to “enter final judgment for the amount claimed”.
He may, with some justification, think that this hearing before the Master of the High Court is to be the “hearing” of which he had earlier been advised by the Chief Justice, and he arrives in Court expecting (as any lay person would, in the absence of any indication to the contrary) to be able to give his evidence by word of mouth.
Nowhere in the Notice of Motion does it state that he will not be able to give evidence there and then, but should, instead, prepare, in advance of the hearing, a written (preferably typed) statement of the evidence he would like to give, in the form of a sworn “affidavit” of evidence. So he arrives in Court without this. He starts the day understandably confused. (One defendant recently told me he was afraid that he might end the day in jail).
More confusion follows! He discovers that the Master’s “Court” is not a real court and the case is not going to be “heard” there that day at all. The Master is the High Court case manager, and he will give the motion a hearing date for a Monday some time in the future when the papers are “in order”.
If he is lucky, the Master will suggest to him (the defendant) that he probably should ask for an adjournment to give him time to prepare, swear, stamp, file and deliver a replying affidavit. The Master may even tell him what an affidavit is, and give a broad indication that he (the defendant) should try to set down all the facts he can recall which may be relevant to the case.
On the other hand, the Master may decide that because there is no replying affidavit from the defendant, he (the defendant) has not “contested” the plaintiff’s case, and he (the Master) may give the plaintiff the order he is seeking, so concluding the case (subject to appeal: the Master may tell the defendant of his right of appeal, or he may not) without any hearing either before a judge or at all, even though the defendant is present and would happily tell his story, if given the opportunity.
Some commentators have suggested that the provision in the Rules which permits the Master to transfer the file, as it is, to the Monday list in his discretion (O. 63, r. 7) or in case of difficulty or doubt (O. 37, r. 12) must be used when a defendant appears in person without a replying affidavit. To what end? The defendant will then arrive for the Monday hearing without an affidavit and is even less likely to be given an opportunity to tell his story, or even to adjourn further to file the affidavit he should have filed before.
Even the Master is confused! Should he correct or suggest improvements to a first affidavit submitted by a lay defendant? Should he explore, in open Court, the circumstances deposed to? If he can see the makings of a stateable defence or a counterclaim, should he alert the defendant? Should he “coach” him for the forthcoming hearing in the Monday list? Should he advise the defendant of his rights (i) to seek a strike out if the endorsement of claim is too imprecise, or (ii) if the grounding affidavit is skimpy, to ask that the motion be dismissed for want of evidence, or (iii) of his option to serve a notice to cross-examine the plaintiff’s deponent? In short, can the glaring gaps in the fairness of the procedures for the defendant be considered patched over or closed on the basis that the Master may be considered as the defendant’s tutor in all relevant procedural, evidential and legal aspects of the case? I hardly think the proposition is stateable!
The rationale for Order 37 is in the expectation that most cases will be concluded on the “no contest” basis (a very loose concept, surely, found nowhere else in the Rules!), and that anything with the merest suggestion of dispute as to the facts or law would be transferred to a judge’s list on a Monday.
The yardstick for the judge on a Monday is entirely different. It is not spelt out in the Rules of Court. Case law tells us that it is about whether the defence is stateable. The problem for the lay defendant is whether he has enough information about this basis of assessment to enable him to cogently argue the point. His starting difficulty may be that the affidavit he has submitted may have inadvertently omitted key facts to which he could have testified but which he did not, at the time, appreciate might be critical. A thin affidavit may have been enough to constitute a “contest” and get him on to the Monday list, but it may be altogether too superficial to convince the Monday judge that he has an arguable answer to the claim. There may even be a real danger of the judge profiling defendants and jumping to a conclusion in the interests of expedition, even a conclusion which rejects sworn testimony because it conforms to a pattern seen in other cases and is therefore likely to be untrue? Bizarrely, a plaintiff may patch gaps in his evidence (often on hearsay evidence) on a similar profiling basis invoking the maxim omnia praesumunterrite esse acta.
It is a strangely distorted view of the respective importance to be attached to the plaintiff’s “entitlement” to summary judgment and the defendant’s “right” to a fair hearing to treat both as on a par, or even to treat the former as superior. Yet every Monday, lawyers for the plaintiff place emphasis on the former and the defendant, as litigant in person, is often unable to figure out what he is supposed to say. Let me spell it out. A plaintiff’s access to justice is not constrained in any way just because the case has to be tried on the standard track. Summary judgment is not even a statutory right; it is a fast track at the discretion of the Court. The defendant’s right to a fair hearing, on the other hand, is superior on all counts: it is a trump card.
LEAVE TO DEFEND
Looked at another way, the defendant’s replying affidavit is his completed application form for permission to be allowed to give his evidence in the box in a hearing with examination and cross examination of witnesses. Of course, a lay litigant does not know this. Nor is he likely to know that the test he must satisfy for leave to defend is that his affidavit sets out “a good arguable case”. If the hearing of the motion is to be the only trial the defendant will get, surely he should know the precise test which the Court will apply before it gives final judgment in favour of the plaintiff? Fail the test, as stated above, and the defendant will be held liable for the plaintiff’s claim.
In the course of his judgment in Aer Rianta CPT v. Ryanair Limited [2002] 1 I.L.R.M. 381, 393, Hardiman J. noted that:-
“At the start of the hearing of the present appeal counsel assured us that there was agreement between them that the test set out in the judgment of this Court in First National Commercial Bank plc v. Anglin [1996] 1 I.R. 75 was the correct test to apply. However, it transpired in the course of the argument that counsel were by no means agreed on what this test meant: each advanced an interpretation of it which, if accepted, would dictate a resolution of the present appeal in favour of his own client.”
Judge Hardiman then sought to reconcile the two views by pointing out that the old formula of a “fair and reasonable probability of the defendant having a real or bona fide defence” was “not the same thing as a defence which will probably succeed or even a defence whose success is not improbable”.
The formula employed in the quotation cited above is not lay litigant friendly. Apparently, it is not counsel friendly either. Even judges have difficulty with it. McKechnie J., then in the High Court, observed in Harrisrange Ltd. v. Duncan [2003] 4 I.R. 1, that Hardiman J’s “conclusion was, I think, that leave to defend should be granted unless it was very clear that the defendant had no defence, not even one which could be described as arguable”.
McKechnie J. then went on to explore the test in the following manner:
“(i) the power to grant summary judgment should be exercised with discernible caution;
(ii)in deciding upon this issue the court should look at the entirety of the situation and consider the particular facts of each individual case, there being several ways in which this may best be done;
(iii)in so doing the court should assess not only the defendant’s response, but also in the context of that response, the cogency of the evidence adduced on behalf of the plaintiff, being mindful at all times of the unavoidable limitations which are inherent on any conflicting affidavit evidence;
(iv)where truly there are no issues or issues of simplicity only or issues easily determinable, then this procedure is suitable for use;
(v)where however, there are issues of fact which, in themselves, are material to success or failure, then their resolution is unsuitable for this procedure;
(vi)where there are issues of law, this summary process may be appropriate but only so if it is clear that fuller argument and greater thought is evidently not required for a better determination of such issues;
(vii)the test to be applied, as now formulated, is whether the defendant has satisfied the court that he has a fair or reasonable probability of having a real or bona fide defence; or as it is sometimes put, ‘is what the defendant says credible?’, which latter phrase I would take as having as against the former an equivalence of both meaning and result;
(viii)this test is not the same as and should be not elevated into a threshold of a defendant having to prove that his defence will probably succeed or that success is not improbable, it being sufficient if there is an arguable defence;
(ix)leave to defend should be granted unless it is very clear that there is no defence;
(x)leave to defend should not be refused only because the court has reason to doubt the bona fides of the defendant or has reason to doubt whether he has a genuine cause of action;
(xi)leave should not be granted where the only relevant averment in the totality of the evidence, is a mere assertion of a given situation which is to form the basis of a defence and finally;
(xii)the overriding determinative factor, bearing in mind the constitutional basis of a person’s right of access to justice either to assert or respond to litigation, is the achievement of a just result whether that be liberty to enter judgment or leave to defend, as the case may be.”
Stated simply, it appears that a defendant will not get a “Plenary” hearing unless he has an arguable case. The basis of an argument could be factual or legal, but he will not be prompted by the judge, no matter how complex the underlying legal considerations. Of course, the judge may feel himself duty bound to take his own counsel and, if he spots a possible basis of defence or counterclaim, simply grant leave to defend without explaining why. We lawyers may be in our comfort zone working with these principles, but in all fairness, how is a lay litigant expected either to know of or translate and apply them to his case? For a defendant appearing in person, this is surely a surreal world: he just wants to get into the witness box and give his story.
FACTUAL MATRIX AND LEGAL PRINCIPLES APPLICABLE
A few examples may shed some light on theory and on the practice.
A personal representative sued in respect of a transaction with the testator of which he had no personal knowledge is entitled to have the debt formally proved. Likewise, a guarantor: in one of the earliest cases (still cited, it should be noted, a century later), on an application for summary judgment on a guarantee, Lloyds Banking Co. v. Ogle, 1876 1 ExD. 262 Bramwell B. ruled that:
“The power to sign judgment was, in my opinion, intended to apply to those cases which almost on the admission of the defendant are undefended, and not to cases in which the defendant might reasonably say ‘I do not know if your case is well founded or not, but I require you to prove it’ . . .
In my opinion, it ought to be a general rule that where there is no acknowledgement of the debt by the defendant, or anything else to show that the defence is for mere purpose of delay, in the case of a guarantor or surety like the defendant, he should not be prevented from going to trial.”
Next, take the question of good consideration for the giving of a guarantee in respect of a third party’s debts. In Provincial Bank of Ireland Ltd. v Donnell, C.A. 1933, (Northern Ireland Law Reports) Andrews L.J. held that:
“. . . an agreement by a creditor that he will forbear to sue . . . is a sufficient consideration . . . So also is actual forbearance at the request, express or implied, of the defendant . . . (e.g.) ‘in consideration of your not suing my husband’.
If, apart from agreement, there was in fact, a forbearance to sue there is not a particle of evidence to show, as is necessary, that such forbearance resulted from any request, express or implied, on the part of the defendant.
Could the consideration be made valuable by reference to ‘advances that may hereafter be made’? . . . It is clear that where there is no agreement binding on the plaintiffs to make the advances, and no advances are in fact made, the guarantee must be construed as conditional and the guarantee fails for want of consideration.”
A third example is in the area of undue influence on a wife who signs a guarantee. The following material is extracted from a student textbook on contract law, just the sort of book a lay litigant might be likely to consult. “Case example”: Barclays Bank plc. v.O’Brien [1993] 4 All ER 417:
“Mrs O’Brien could succeed because, as a wife, she was part of a specially protected class of persons under equity, acting as surety for a debt . . . a surety of this type could not be enforced where it had been gained by the presumed undue influence of the principal debtor . . .
The House of Lords took a different view. Lord Browne Wilkinson rejected the special equity theory because this would inevitably have the effect of making lending institutions reluctant to make loans on the security of domestic residences. In any case he felt that the Court of Appeal was extending the scope of actual undue influence to include wives, for which there was no precedent. Instead, the doctrine of notice should be applied:
•the creditor would be put on notice of possible undue influence in situations where on the face of it the transaction was disadvantageous to the wife, and there was a risk that the husband may have committed a legal or equitable wrong in getting his wife to sign
•unless the creditor took reasonable steps to ensure that the surety was entered into with free will and full knowledge then the creditor would be fixed with constructive notice of the undue influence
•constructive notice could be avoided by warning of the risks involved and advising of the need to take independent legal advice at a meeting not attended by the principal . . .
The categories of undue influence have been identified in two groups, with the second itself being divided into two distinct groups:
•Class 1 – actual undue influence – where the person alleging the undue influence must prove it
•Class 2A – presumed undue influence – where, because of the relationship of the parties involved, the courts will presume that undue influence occurred unless the contrary is proven
•Class 2B – relationships of trust and confidence – where there is no automatic presumption of undue influence but it is accepted that the relationship of the parties is one in which undue influence could arise (the most obvious relationship included in this group, because it was expressly excluded from the traditional class of presumed undue influence, but because also of the levels of trust and confidence that might be expected from it, is that of husband and wife).”
And, lastly, a recent written decision of our own High Court. Allied Irish Banks plc. v. Galvin Developments (Killarney) Limited, Souter Enterprises Limited, Jeremiah Galvin,Colm Galvin, Denis Galvin, John Shee and Joseph Hanrahan [2011] IEHC 314. The extracts are all quotations from the judgment of Finlay Geoghegan J. The editing is by myself.
“The documents signed by the Galvin Brothers on 10th September, 2008, are the documents under which AIB now pursues its claim against GDK and the Galvin Brothers. The facts surrounding the signing of the letters of sanction and guarantees in September 2008 demonstrate a regrettable casualness of AIB, GDK and the Galvin Brothers in relation to the execution of documents.
The consistent practice between AIB, South Mall, and the Galvin Brothers demonstrates the willingness and a practice of the parties to execute and accept documents, the Guarantees, which were not intended to be relied upon in accordance with their express terms having regard to other terms implicitly agreed . . . .
I have concluded that, as a matter of probability, the details in the Schedule to the guarantees, including the date, were inserted after their execution by the Galvin Brothers on 10th September, 2008 . . .
It is now agreed by AIB that the copy of the letter of offer dated 4th September, 2008, purporting to have been accepted and signed by the Galvin Brothers enclosed with the letter of 4th March 2009, is not, in fact, the letter of offer which they did sign on 10th September, 2008 . . . There is no clear explanation of how AIB, in March 2009 and thereafter, had on its records a form of letter of sanction with an acceptance page purporting to have been signed by the Galvin Brothers when it is now agreed that the version they signed is different . . .
In the letters of sanction of September 2008 in respect of each facility, there is a heading ‘Repayment’ and differing provisions as to the repayment of both the capital and interest and normal provision for review or refinance by a specified date. Construing those provisions objectively in accordance with the principles set out by the Supreme Court in Analog Devices B.V. v. Zurich Insurance [2005] 1 I.R. 274, in the relevant factual matrix and having regard, in particular, to the purpose of the individual loans expressed in the letters of sanction, in my judgment, there was express agreement by AIB on repayment terms which did not include the loans being repayable on demand . . .
Where, as on the facts herein, the letter of sanction contains an express provision in relation to the rate of interest payable and contains no reference to the possibility of any differing interest rate being applicable in certain circumstances, it appears to me that insofar as the General Terms and Conditions contain a provision for the charging of interest at any rate other than the interest rate expressly set out in the letter of sanction, that it is in conflict with the terms of the letter of sanction and, accordingly, pursuant to clause 1.1.2 of the General Terms does not apply . . .
There was an established practice of AIB, at its South Mall branch prior to 2007, of requiring the Galvin Brothers to execute unrestricted guarantees of the liabilities of GDK (except as to amount) and agreeing in a letter of sanction to GDK to restrict AIB’s recourse under the guarantees to the Galvin Brothers’ interest in specified lands . . .
The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammar; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean . . .
It is clear that not every statement or promise made in the course of negotiations for a contract may give rise to a finding that a collateral contract exists. To be so treated, a statement must be intended to have contractual effect, see ‘Chitty on Contracts’, 29th Ed., para. 12-004 and cases referred to therein . . . In his seminal article on collateral contracts, Lord Wedderburn also focused on the element of judicial discretion involved in the process:
‘The frequency with which such ‘collateral contracts’ make their appearance . . . depends upon the extent to which the courts are willing to spell them out of a situation where this is a possible, but not a necessary analysis. Their increasing tendency to favour such a view in cases where justice is promoted by so doing, gives added importance to the ‘collateral contract’.”
The Heads of Terms is a commercial agreement and must be construed objectively in accordance with the principles in Analog Devices B.V.
“The Heads of Terms were not intended to constitute an unconditonal binding agreement between the parties to make available or take the facilities referred to therein. Neither, however, construing them in accordance with their terms in the relevant factual matrix were they intended to be devoid of contractual effect . . .
I have concluded on the facts found herein that there existed a collateral contract in the sense of a prior representation by AIB intended to have contractual effect that it would limit its recourse to the Galvin Brothers to 50% of the drawn debt of agreed facilities. . .
The representation by AIB in the letters of sanction to GDK in relation to the historical facilities that it would restrict recourse pursuant to the personal guarantees from the Galvin brothers to their interest in the lands at Cappagh may similarly be analysed as a statement which induced the Galvin brothers to give unrestricted personal guarantees and upon signature thereof became a collateral contract to the unrestricted contracts of personal guarantees from the Galvin Brothers . . .”
THE DEFENDANT’S ACCOUNT AND OTHER MATERIALS
The equivalent UK summary judgment procedure operates under slightly different wording, sometimes reduced to the shorthand of “whether there is a triable issue”.
The first test there is whether there is any real prospect of success (in defending the case). UK courts have explained that “real” means “not fanciful”. Lord Woolf, Master of the Rolls, commented in Swain v. Hillman 2001} 1 AER 91,95, that the rule was “designed to deal with cases that are not fit for trial at all”.
The White Book (2007 Ed.) complains that:
“In practice, it is often more difficult to apply the ‘no real prospect of success’ test on an application for summary judgment than it is to try the case in its entirety”,
and adds that:
“How the Court decides whether a defence is real without conducting a mini trial has led to a series of unsatisfactory cases.”
The UK Rules there add the further test of “whether there ought for some other reason tobe a trial”. This latter test refers to old cases such as Daimler Co. Ltd. v. Continental Tyre& Rubber Co. (Great Britain) Ltd., 1916 2AC 307 (“leave to defend so that thecircumstances could be looked into more closely”).
In Miles v. Bull, [1969] 1 QB 258, Megarry J. found the wording of the second test very wide but they “. . . seemed to have a special significance where relevant facts were under the plaintiff’s control, and the defendant would have to elicit by discovery and cross-examination those which helped her . .
After concluding that a certain transaction had not been shown on the evidence to be a sham, he said that it nevertheless bore something of the appearance of a device. Though a device could be a perfectly genuine transaction, yet ought ‘for some . . . reason’ to be a trial, and that reason was that of justice . . (Abstract courtesy of Oyez practice notes).
The UK’s approach seems to be more free ranging than as applies in this jurisdiction. It appears to be more open to the idea that the defendant may be one or two material facts short of an “arguable” defence and that the Court could itself supply the deficiency on a “what if” basis. The Court, in short, will not shut out the possibility of extra facts emerging in due course, even if the defendant cannot be aware of them now (or is actually aware of them but has not referred to them because he does not realise their legal significance). The Court should consider evidence that could reasonably be available at trial (Royal Brompton Hospital v. Hammond [2001] EWCA Civ 550 CA).
But first we must question whether there is as a matter of law, any admissible evidence before the Court. Suppose the defendant’s statement is unsworn? Is it admissible? (If not, is there any “contest” and shouldn’t the Master simply grant the plaintiff the final judgment it seeks?)
Or should the unsworn statement be read “de bene esse”? A difficulty: if the hearing is in public, might there be no privilege defence in an action for defamation arising out of the reading in public of an unsworn statement which is, technically, not evidence in the case?
Note that the notice of motion made no mention of any need to file a replying affidavit. In fact, it mentioned nothing of practical benefit to the defendant, except that the “application” would be “made” when and where. Can one fault a defendant who turns up with documents which are not properly “exhibited” or who expects to be allowed to explain his case without first having to write it all out? Is he to be granted an adjournment to better prepare? Is he to be advised by either the Master as case manager or the judge on a Monday morning of his option to request an adjournment for that purpose? Even if the lay litigant had checked the Rules of Court, he would not have found any reference to testimony having to be given under oath. Plenty of references to affidavits; no reference to the oath itself.
In the 1858 edition of Taylor on ‘Evidence’ at p. 1112 (Vol. 2), we find this statement (which is not cross-referenced to any cited case law, but is, nevertheless, authoritative):
“Indeed, no person, whatever functions he may have to discharge in relation to the cause in question or whatever be his rank, age, country, or belief, can give testimony upon any trial, civil or criminal, until he have, in one form or other, given an outward pledge that he considers himself responsible to God for the truth of what he is about to narrate.”
And this footnote on the following page:
“In some few of the British Colonies, where the aborigines are ‘destitute of knowledge of God and of any religious belief’ ordinances have been made for the admission of the testimony of such persons without the previous sanction of an oath.”
In Mapp v. Gilhooley [1991] 2 I.R., 253, 262, Finlay C.J. confirms that the requirement has its origins in Common Law, adding, “the broad purpose of the rule is to ensure as far as possible that such viva voce evidence shall be true by the provision of a moral or religious and legal sanction against deliberate untruth”.
This decision is probably not the place to explore the legal position regarding the oath. Its status is a matter of substantive law and only the judges or the legislature can made a change. It is, however, of interest to note the preponderance of judicial opinion in regard to admissibility of evidence in administrative or quasi judicial tribunals, perhaps best summed up in the “substantial evidence” rule found in the US Federal Administrative Procedure Act, and described by Hughes CJ in the Consolidated Edison case [1938] (305 US 197) as, “more than a scintilla of evidence and such relevant evidence as a reasonable man might accept to support a conclusion”. In T.A. Miller Ltd v. Minister of Housing [1968] 1 W.L.R. 992;995 the UK Master of the Rolls ruled that “the rule of thumb by which an adjudicator decides whether to admit or exclude an oral or written statement tendered as evidence should be whether the statement is relevant, reliable and logicallyprobative”.
Reliability is clearly the key consideration underlying the Common Law’s approach to admissability. If a person is prepared to offer his soul as his bond, his evidence (if he is a man of faith) is likely to be more reliable. On the other hand, if every witness is sworn, who knows which of them is truly offering this additional assurance of truth? Perhaps witnesses should just be offered the option of taking the oath and the evidence of each rated as more or less reliable by reference to the solemnity each attaches to the choice he makes.
Reliability is also the issue which causes the judges in their Rules of Court to stipulate, in Order 39, that “the Court may order that any particular fact may be proved by affidavit provided that such an order should not be made where it appears to the Court that the other party bona fide desires the production of a witness for cross examination”.
The general policy is repeated in Order 40 which confirms that on the hearing of every motion etc., although evidence may be on affidavit, the Court may order the attendance of a deponent for cross examination. There is, apparently a slight difference, a more ready acceptance of evidence by affidavit, in the hearing of motions as opposed to the position which pertains at the trial of an action.
This distinction is also to be found in O. 40, r. 4 which confines affidavits to “such facts as the witness is able of his knowledge to prove . . . except on interlocutory motions on which statements as to his belief with the grounds thereof may be admitted”.
There is no definitive ruling as to whether a motion for liberty to enter final judgment is an interlocutory motion. Curiously, plaintiffs’ affidavits are usually full of hearsay, while a defendant who submits hearsay testimony will find the Court reluctant to accept it.
The terms of O. 37 r. 1 seem to treat the motion as neither one nor other (a sui generis application?) which “shall be supported by an affidavit sworn by the plaintiff or by any person who can swear positively to the facts showing that the plaintiff is entitled to the relief claimed and stating that in the belief of the deponent there is no defence to the action.”
Particularly in a situation where the defendant’s hearsay evidence may be rejected as “incredible” one must wonder what role is intended to be played by hearsay evidence to the effect that the plaintiff’s solicitor has advised the plaintiff that the defendant has “no defence to the action”. I have suggested elsewhere (Tattensaufer) that this averment plays a key role when a defendant does not appear to contest the application. The Court insists, in effect, on obtaining indirectly a confirmation from one of its own officers that it is appropriate to proceed to final judgment. Such a confirmation can only be of true value when the Court’s officer, although he is the plaintiff’s solicitor, approaches the file with detachment and objectively as lawyer and looks at both sides of the case. Otherwise, his advice to his client is not worth the paper it is written on, except to satisfy the form (but not the substance) of the judges’ requirements.
An interesting subsidiary question is whether the “defence” to which the rule refers is a defence of the sort envisaged in Aer Rianta v. Ryanair and as described extensively in Harrisrange above cited.
Somewhere along the line, solicitors for the plaintiff have lost touch with their obligation to assess the pros and cons of their client’s case before so advising. Consequently, in many cases such averment is not reliable testimony. Thus, we find the more florid and inventive averments to the effect that the defendant’s entry of appearance is merely for the purpose of delay. Where did this come from? And how could the solicitor know what was in the mind of the defendant? Or is it merely to corroborate the genuineness of the averment that there is no defence? Whatever it is, its inclusion suggests that the solicitor has not properly understood his duty to the Court in this regard. Probably, the Court should call for and inspect the advices.
Additional embellishments have grown like barnacles on this averment over the years. There is no defence “in law or on the merits”, whatever that means. There is no “bona fide” defence? A prejudgment of the defendant’s capacity to avoid the truth, if it suits him? (The solicitor has, or course, no such doubts about his own client).
Lastly, I cannot avoid adding here the comment that, of all deponents, solicitors is the group most frequently found to have only a nodding acquaintance with the truth. Many will not hesitate to swear, in a formulaic way, if that is what the rules require them to affirm, without double-checking as to the true position. Some have, in my opinion, debased the concept of the affidavit and the oath and now treat them respectively with no more formality that they would an application form and a signature. In short, solicitor’s averments are not generally “reliable”.
Given that the scenario we are concerned with in this decision is that which arises when a defendant wishes to contest the claim and has (or intends to) file his own affidavit with regard to the facts, does the Court now simply allow the plaintiff’s solicitor’s opinion on the availability of a defence to fall out of the equation? Is it no longer in the scales? That would be a neat solution, but the damage may have been done: it may linger. Might not the Court also, perhaps unwittingly, view the fact that the defendant has no solicitor as somehow corroborative of the plaintiff’s solicitor’s assessment of no defence?
The disturbing question remains: if it is the task of the plaintiff’s solicitor to filter applications for fast track judgment and only to initiate claims which he is satisfied cannot be defended, a more conscientious attention to his responsibility would stop many such applications before they had even been commenced. I suspect that many solicitors issue a summary summons without first considering whether they will be able, in due course, to advise their client that the defendant has no defence. That is an abuse of the process. However, although the process may be abused in this way, the abuse itself does not infect the hearing so as to make it unfair unless the Court accepts the no defence averment at its face value and weighs it in the scales against the defendant’s perhaps imprecise, halting, or uncertain averments suggesting the contrary? Which should be treated as more “reliable?
Even if it is unclear whether any probative weight still attaches to the plaintiff’s averment (that he is advised that there is no defence) once the defendant attends the hearing, it is certainly clear that the Court should be able to rely on counsel to assist in the task of objectively configuring the facts and law so as to determine whether the defendant has made out a good case for him to be granted leave to defend. Counsel has an overriding obligation to the Court (under the heading ‘Relations between a Barrister and the Court in the Code of Conduct for the Bar of Ireland’), namely:
“5.7 In Civil cases, and subject as hereinafter provided, a Barrister opening the case must ensure that the Court is informed of any relevant decision on a point of law or any legislative provision of which he is aware and which he believes is immediately in point whether it be for or against his contention.”
This is counsel’s obligation under the Bar’s Code of Conduct. Unfortunately, in one case recently (AIB v. John Waters [2010] 820 SP), when I had spotted a clear legal difficulty in regard to consideration moving from the bank to the guarantor and in a situation where the defendant, appearing in person, was clearly unaware of the plaintiff’s difficulty, I invited the plaintiff to make submissions to me in that regard and adjourned the motion for a few weeks to that end, but counsel, instead of honouring the overriding obligation to the Court, accepted instructions from the client bank to appeal the adjournment on the basis that the bank was “concerned about creating a precedent of making legal submissions in the Master’s Court and how the costs of such submissions should be addressed”.
And so here we are, a defendant appearing in person with or without a sworn affidavit. A judge who cannot rely on either the plaintiff’s solicitor or plaintiff’s counsel to inform his assessment of the strength and weaknesses of the defendant’s factual assertions (and possible material omissions) and the applicable law. Consider again the US rule: would an evidentiary hearing serve no useful purpose? The answer is obvious. An evidentiary hearing is the only hearing which would be fair.
“NO GENUINE ISSUE AS TO ANY MATERIAL FACT”.
“NOTHING FOR THE JURY TO DECIDE”.
“A HEARING COULD NOT EFFECT THE DECISION”
Rule 56 of the US Federal Rules of Civil Procedure describe the pre-conditions for a Summary Judgment on motion as follows:
“The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
Succinctly, the legal view in the US is that the summary judgment procedure is not in conflict with due process (in the US meaning jury trial) “only (my emphasis) where thereis nothing from the jury to decide” (Gelhorn ‘Summary Judgment in AdministrativeAdjudication’ 84 Harvard L.Rev. 612). Likewise, in Administrative Law “a rule allowing summary decisions in administrative decision would not improperly deny the right to a hearing (if) it allowed the hearing examiner or agency to dispense with an evidentiaryhearing only (my emphasis again) if the absence of a hearing could not affect the decision”. Gelhorn’s suggested due process limits to summary adjudication by US agencies would not be out of place in the Irish High Court on a Monday morning.
The Irish Supreme Court has historically approached the issue with great unease. Summary judgment is, after all, prima facie in breach of the right to a fair trial. However, instances of defendants who appear in person succeeding on appeal to overturn a summary judgment against them in the High Court are few and far between. The most obvious reason is the reason the defendant is self-representing in the first place: he does not have the means to launch or progress an appeal. It is no answer for the Irish State to submit that the Supreme Court will always hear such an appeal with exceptional patience and sensitivity (which it always does) if the option of appealing is, for obvious practical reasons, effectively closed. The answer must be that the High Court, at first instance, assess all these cases, without exception, in accordance with the directions of the Supreme Court, even when the defendant is ignorant of the relevant case law and dicta.
EXCURSUS ON COSTS
When the new Irish judiciary adopted new Court rules in 1926, they decided on fixing the motion for liberty to enter final judgment as a standard stage in litigating summary summons claims (formerly known as writs of summons specially endorsed). A plaintiff cannot progress his case without first seeking summary judgment in this way. All such claims must be the subject of a motion. Unfortunately, one of the consequences of adopting that procedural model was that plaintiffs could not be penalised in costs for doing so. Up until that change, they could be penalised under the 1905 Rules and the earlier Rules under the 1877 Judicature Act.
Odgers 1906 edition records the position at that time in the following passage:
“If the plaintiff, in the opinion of the Master, knows that the defendant relied on a contention which would entitle him to unconditional leave to defend, the application should be dismissed with costs to be paid forthwith by the plaintiff in order to discourage plaintiffs from making unnecessary applications.”
“Where the plaintiff, in the opinion of the Master, knew that the defendant relied on a contention which would entitle him to unconditional leave to defend, the application may be dismissed with costs to be paid forthwith by the plaintiff.”
In Pocock v. ADAC Ltd. [1952] 1 TLR, 29, 34, Goddard C.J. indicated that “if it is clear that the plaintiff knew there was an arguable defence, the Summons should be dismissed withcosts”.
Now, however, there appears to be no real sanction for groundless applications for summary judgment. Not only that, but, following Masterson v. Scallan [1927] I.R. 453, the rigour which might be thought appropriate for such motions is not to be applied to procedural irregularities on the part of the plaintiff. I am sometimes asked to sanction a plaintiff who has failed to adhere to any timetable for expedition in the filing of supplemental affidavits, but there seems to be little appetite for dismissal of such motions for unwarranted delay on the plaintiff’s part.
In conclusion, the whole procedure may involve a full hearing before the Master followed by a full hearing in the Monday lists, with multiple adjournments in both venues before a case may have to be transferred back to the standard track. This is a wholly unacceptable, clumsy and inefficient use of the Court’s time, and puts both sides to avoidable expense.
Now look at the case of the F brothers. I have changed their names because the case is yet to be heard. The defendants have handed me a document, part typed, part handwritten, which I now reproduce as an appendix. For a fuller appreciation of the Court’s workload in these lay litigant cases, the appendix should be read carefully.
The contents, of course, prompt a sympathetic response on a human level. But on a legal level, the Court must panhandle for the legally significant nuggets asserted. It must be a clinical and dispassionate exercise.
• The bank was bouncing company cheques before the guarantee was signed.
• Pat F. understood that signing was to keep the account operational.
• The document he signed was just a photocopy sheet with the bank official’s name on it.
• He was not told to seek legal advice; not aware he had to.
• Ger did not sign.
• Pat F. told bank official the signature of Kevin was not genuine.
• Ger’s name was scored out and Kevin’s inserted in its place.
• Pat was told if he consented to judgment, Kevin and Ger “would be left alone”.
So, the questions that arise are:
1. Was there ever a guarantee signed?
2. Is it tainted?
3. What consideration did the bank agree to give?
4. Estoppel and/or waiver?
The G brothers got a fair hearing; they had lawyers. The State provided, effectively free of charge, the services of a High Court judge who produced a 30-page 25,000-word judgment. The judge noted:
“The relevant evidence included the oral evidence and witness statements and contemporaneous documents. (The handwritten notes of Mr. Madden and Mr. O’Mahony were produced in evidence and explained by them). The findings of fact are made on an assessment of the evidence tendered in the context of those documents, as well as my observation of the witnesses in giving their evidence.”
One thing is certain. The bank was told by Pat F. that there was a question mark over the signatures on the guarantee. Given that, why did the bank’s solicitors opt for a Summary Summons, which, in due course, would require the solicitors advising the bank that there was no defence? There is no way of avoiding calling a spade a spade. This was abuse of process by the bank. Further, the solicitor, as officer of the Court, signally ignored his duty to the Court and should be sanctioned in costs. Under the equivalent UK rule of Court, the defendant would be awarded his costs “payable forthwith”. It is only by imposing such sanctions in such cases that plaintiffs will think twice about trying to fast track in cases where fast track is not appropriate.
Now, suppose for a moment, that Mr. G., without lawyers appearing on his behalf, had had to represent himself and his brothers at the first stage at the hearing of the motion for liberty to enter final judgment, and had made allegations about the circumstances of their dealings with AIB of the sort found, ultimately, by the Court to be true. Was this story credible? Would the G. brothers have been given leave to defend?
Unlike the G. brothers, the F. brothers have no lawyers. The question is how far the judge and the procedures and practices of the Court should help the F brothers overcome the disadvantage this causes them?
The public has a keen appreciation of what constitutes a fair hearing. Recently they voted against Constitutional change which might have allowed Oireachtas Committees, after due inquiry, to make findings which might affect only the reputations of citizens. Order 37 of the Rules of Court allows the Courts to make findings (“final judgment”) which affect not just reputations, but the livelihoods, property and credit ratings of citizens.
The public probably thinks that any inquiry conducted by a judge will ipso facto be a “due” inquiry. That the Courts set the standards of a fair hearing. That, whether or not he has a lawyer, a party will at least be allowed an opportunity to present his own evidence and confront his opponent’s witnesses. The fast track summary judgment procedure, even though designed by judges, may not meet this standard. It may not be the fair hearing which the Human Rights Convention guarantees.
The hearing of the plaintiff’s application for summary judgment may be the only “hearing” the defendant is given, and at its conclusion, he may be denied “leave to defend” the case. The UK’s annually published Guide on Court Procedure (the ‘White Book’) noted, at p. 569 of the 2007 Ed., Vol. 1, that:
“The disposal of a claim or part of a claim by way of summary judgment may raise issues in relation to the ECHR Article 6 right of access to a Court.”
COLLINS: AN ARGUABLE DEFENCE?
The defendant in this case has filed two affidavits and makes some clear points, and some less clear. He claims that there are discrepancies in the figures between sums mentioned in letters and sums averred to by the plaintiff’s witness. He says that the bank knew, because of a poor payment record on an earlier loan, that he would be “clearly unable” to repay a later loan and that giving him the second loan was “reckless lending”. Further, he asserts that “none of the special conditions” for the second loan “have been satisfied”, and that the bank failed to take steps “to satisfy these special conditions” and “thereby protect the joint interests of the parties”. He submits that “disclosure of the bank files” will be needed to enable him to prove these assertions. He further argues that the bank is “estopped from claiming interest”, but does not specifically relate this back to any one (or more) of the earlier circumstances deposed to.
There is a definite probability that Mr. Collins will be refused leave to defend. His argument about the bank owing him a duty of care not to lend to him when they knew he could not afford it is not a proposition which is stateable in law as no duty of care can override contractual terms freely entered into by persons with full capacity. (Usually, defendants argue that the banks advised that repayments would be no problem for the borrower – this case is unusual). If he asserted that the bank never expected to be paid and never intended to ask for repayment, that might be, prima facie, interesting (although counter-intuitive), but he has not gone that far, and indeed, the exhibited documents suggest otherwise. Anyway, why would the bank give him the money, not expecting to be repaid? (Admittedly, stranger things have happened!) Perhaps there is some significance or interconnection with the first loan (about which Mr. Collins makes no comments). Perhaps not. Are all Mr. Collins’ angles leading to legal dead ends? Is it “very clear that he does not even have an arguable case”? As things stand, yes.
HUMAN RIGHTS
It comes down to this: the argument on a Monday morning is as to whether the defendant has an arguable case. The defendant may know what his case actually is, but he does not know whether it is “arguable” or not. That is a matter for legal submission regarding the net legal effect of the facts asserted by the defendant (if true). The argument about arguability tends, perhaps inevitably, to morph into an argument about probability and credibility. But if the Court is prone to such error, it should be conscious of the obligation to hear the defendant’s testimony viva voce before refusing him leave to defend.
Instinctively, one would think that Human Rights include a right that not only would justice be done, but that it would be seen to be done. On that basis, a refusal to give Mr. Collins leave to defend based merely on a fast track consideration of the affidavits on a Monday morning, and without Mr. Collins himself having an opportunity even to give his own evidence viva voce, would appear to be deficient.
Not necessarily so. As Jacobs and White explain in their book on the European Convention of Human Rights (OUP, 4th Ed., 2006, 176):
“What matters is that each party is afforded a reasonable opportunity to present his case – including his evidence – under conditions that do not place him at a substantial disadvantage vis a vis the other side”. Additionally, the authors observethat “there is no duty on the State, for example, to provide legal aid to an impecunious litigant to such a level as to bring him or her into total parity with a wealthy opponent”. Under the heading ‘Effective Participation’ on p. 180, theauthors note that “it is not, however, sufficient that the criminal defendant or civil party is present in court. He or she must, in addition, be able effectively to participate in the proceedings”.
But, in my view, for a lay litigant the minimum requirement for effective participation is to be allowed an opportunity to give his evidence in the witness stand. That is an absolute sine qua non: it would seem to follow that the test for leave to defend should not be the test dating from 1875 (“is it very clear the defendant does not even have an arguablecase?”) but a new test derived from Human Rights principles: “is it very clear the casecan be fairly decided without an evidentiary hearing?” No floodgate argument should prevail against a defendant’s right to a fair hearing.
The Rules of the Superior Courts do not enjoy the same legal standing as the European Convention on Human Rights Act 2003. The latter is statute. The former is delegated legislation (or “Statutory Instrument”) under statutory powers. By virtue of s. 2(1) of the 2003 Act, the Statute under which the Rules have been made must now be, in effect, reinterpreted “in a manner compatible with the State’s obligations under the Conventionprovisions”. Clearly, any rule of Court which provides for a procedure which is incompatible with the Convention is, therefore, invalid as and from the enactment of the 2003 Act. It is probably unnecessary for the Court to make a declaration of incompatibility under s. 5 of that Act “of its own motion”. A declaration would merely confirm the invalidity.
But in the absence of a declaration, must the Rules of Court continue to be observed as drafted? It is probably not open to the Master of the High Court to make a declaration of incompatibility but, under s. 3 of the Act, I must, as an organ of the State, perform my functions in a manner compatible with the State’s obligations under the Convention provisions. Accordingly, I am removing this case from the fast track and listing it for Plenary hearing.
APPENDIX
Letter (affidavit?) to the Master of the High Court from Pat F. (name changed) dated 20th October, 2011:
“I Pat F. do swear that the information given by me is true to the best of my knowledge and belief.
In 2004, I Pat F. together with my brothers Ger F. and Conal F. set up a company (the company) to undertake the building of one off houses and other construction work for the purpose of employment and income for ourselves and our families. Conal and I were to be in ongoing employment and Ger who had full time employment was to be a silent partner. We then employed another brother Kevin F as a labourer. We continued in business until 2006 when difficulties began. Firstly a VAT bill for the sum of €23,011 in respect of arrears dated the 16th January 2006 which we were struggling to pay. On the 30th April 2006 my brother Conal died of suicide. Eleven days later my son Jamie F. was born. In the following days of his birth Jamie took ill and for a time we were in and out of hospital with him. On the 26th June 2006 he was rushed to Crumlin hospital and was on a life support machine for five days. He was diagnosed with Pertusis and had three holes in his heart, he also had a collapsed lung. We had spent a further two weeks staying with him in the hospital. Soon after I returned from hospital, myself and Kevin continued to work and following a telephone conversation with the AIB bank as they began bouncing cheques etc, I was asked to come in and sign guarantee to keep our account operational. Upon attending the bank on the 29th August 2006 I was presented with a photocopied sheet on which was the bank officials name, no other documents we attached and I wasn’t told to seek legal advice and I wasn’t aware I had to. My basic understanding of signing the form was to keep the account operational and without my signature and my brother Ger’s signature the account would have been foreclosed. As I was under pressure from the Revenue Commissioner and the employment of Kevin and I, I signed it. The bank manager asked me to get Ger to come in to the bank to sign the form but I explained to him that Ger was hard to get as he worked nights and would be asleep during the day so I asked that I take the form home to get him to sign it and we would return it to them. The bank official told me to leave it for now and he would get Ger to sign when he can. Kevin and I continued to work and I lodged sums of money to the back when I was able to try to clear the arrears. Sometime after when the lodgements got smaller as work got quiet I had to let Kevin go as I couldn’t afford to pay him. My account was referred to AIB in Dublin where I came in contact with J.G. a very nice man who was approachable with suggestions to pay the debt off. I then returned home one evening to find a letter from the AIB about the moneys owed. Kevin also received the letter which he was angry about as he never signed the guarantee or had no need to as he was only an employee of the company and it was Ger who was supposed to sign the form. I rang J.G. the following day and told him Kevin never signed the form so he told me he would send me a copy of the guarantee and asked me to check Kevin’s signature on it. I did so and we both agreed it wasn’t his signature. Also in the guarantee schedule part 2 Ger’s name had been scored out and Kevin’s name wrote in its place. I rang J.G. again and told him Kevin confirmed it wasn’t his signature and he never signed anything. He didn’t take the matter any further and just told me to keep paying back the debt. I agreed over the phone with him to pay €1000 per month for the next 4 months and further smaller amounts for a time after that until the business dropped again. I then began to get into financial difficulty again. Attention then turned to my father gifting a site to me for my own dwelling to be built. I was asked to give the bank an undertaking over the site on the monies owed and told to get my solicitor to draw it up. The solicitor refused to do so and advised me not to give them an undertaking. On another occasion I was asked to try and obtain a mortgage on the site from another bank and to pay the AIB their money but I told them I couldn’t pay to keep the business going so I couldn’t afford to pay another bank back a mortgage. I struggled from then on to keep the business going and couldn’t pay anything since because of the debt and a downturn in work. I have been trying with the help of MABS to get the interest of the debt stopped. I have total debts in the region of €100,000 hanging over my head and the company is waiting to be struck off because it has ceased trading due to bad debts.
I also have to add that I take full responsibility for all the moneys owed and would like it if my brothers Kevin and Ger were both kept out of it. I mentioned this to solicitor and was told that if I consented to judgment upon myself they would be both alone (ref. Letter G.).
I have 2 dependent children under the age of six and am in a long term relationship with their mother, we cannot afford to move in together and the loss of my site to the bank would permanently disable me from ever providing them with a home for myself and them. I’m a proud working man and don’t want to be dependent on benefits and want to plan a future for myself and my family so I leave myself at the mercy of the court, and I beg onto thee to show me leniency on this matter and I will comply and trust in your judgment.
CONSTITUTION OF THE IRISH FREE STATE (SAORSTÁT EIREANN) ACT, 1922.
AN ACT TO ENACT A CONSTITUTION FOR THE IRISH FREE STATE (SAORSTÁT EIREANN) AND FOR IMPLEMENTING THE TREATY BETWEEN GREAT BRITAIN AND IRELAND SIGNED AT LONDON ON THE 6TH DAY OF DECEMBER, 1921.
DÁIL EIREANN sitting as a Constituent Assembly in this Provisional Parliament, acknowledging that all lawful authority comes from God to the people and in the confidence that the National life and unity of Ireland shall thus be restored, hereby proclaims the establishment of The Irish Free State (otherwise called Saorstát Eireann) and in the exercise of undoubted right, decrees and enacts as follows:—
The Constitution set forth in the First Schedule hereto annexed shall be the Constitution of The Irish Free State (Saorstát Eireann).
The said Constitution shall be construed with reference to the Articles of Agreement for a Treaty between Great Britain and Ireland set forth in the Second Schedule hereto annexed (hereinafter referred to as “the Scheduled Treaty”) which are hereby given the force of law, and if any provision of the said Constitution or of any amendment thereof or of any law made thereunder is in any respect repugnant to any of the provisions of the Scheduled Treaty, it shall, to the extent only of such repugnancy, be absolutely void and inoperative and the Parliament and the Executive Council of the Irish Free State (Saorstát Eireann) shall respectively pass such further legislation and do all such other things as may be necessary to implement the Scheduled Treaty.
This Act may be cited for all purposes as the Constitution of The Irish Free State (Saorstát Eireann) Act, 1922.
FIRST SCHEDULE ABOVE REFERRED TO. CONSTITUTION OF THE IRISH FREE STATE. (SAORSTÁT EIREANN.)
Article 1. The Irish Free State (otherwise hereinafter called or sometimes called Saorstát Eireann) is a co-equal member of the Community of Nations forming the British Commonwealth of Nations.
Article 2. All powers of government and all authority, legislative, executive, and judicial, in Ireland are derived from the people of Ireland, and the same shall be exercised in the Irish Free State (Saorstát Eireann) through the organisations established by or under, and in accord with, this Constitution.
Article 3. Every person, without distinction of sex, domiciled in the area of the jurisdiction of the Irish Free State (Saorstát Eireann) at the time of the coming into operation of this Constitution, who was born in Ireland or either of whose parents was born in Ireland or who has been ordinarily resident in the area of the jurisdiction of the Irish Free State (Saorstát Eireann) for not less than seven years, is a citizen of the Irish Free State (Saorstát Eireann) and shall within the limits of the jurisdiction of the Irish Free State (Saorstát Eireann) enjoy the privileges and be subject to the obligations of such citizenship: Provided that any such person being a citizen of another State may elect not to accept the citizenship hereby conferred; and the conditions governing the future acquisition and termination of citizenship in the Irish Free State (Saorstát Eireann) shall be determined by law.
Article 4. The National language of the Irish Free State (Saorstát Eireann) is the Irish language, but the English language shall be equally recognised as an official language. Nothing in this Article shall prevent special provisions being made by the Parliament of the Irish Free State (otherwise called and herein generally referred to as the “Oireachtas”) for districts or areas in which only one language is in general use.
Article 5. No title of honour in respect of any services rendered in or in relation to the Irish Free State (Saorstát Eireann) may be conferred on any citizen of the Irish Free State (Saorstát Eireann) except with the approval or upon the advice of the Executive Council of the State.
Article 6. The liberty of the person is inviolable, and no person shall be deprived of his liberty except in accordance with law. Upon complaint made by or on behalf of any person that he is being unlawfully detained, the High Court and any and every judge thereof shall forthwith enquire into the same and may make an order requiring the person in whose custody such person shall be detained to produce the body of the person so detained before such Court or judge without delay, and to certify in writing as to the cause of the detention and such Court or judge shall thereupon order the release of such person unless satisfied that he is being detained in accordance with the law: Provided, however, that nothing in this Article contained shall be invoked to prohibit, control or interfere with any act of the military forces of the Irish Free State (Saorstát Eireann) during the existence of a state of war or armed rebellion.
Article 7. The dwelling of each citizen is inviolable and shall not be forcibly entered except in accordance with law.
Article 8. Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen, and no law may be made either directly or indirectly to endow any religion, or prohibit or restrict the free exercise thereof or give any preference, or impose any disability on account of religious belief or religious status, or affect prejudicially the right of any child to attend a school receiving public money without attending the religious instruction at the school, or make any discrimination as respects State aid between schools under the management of different religious denominations, or divert from any religious denomination or any educational institution any of its property except for the purpose of roads, railways, lighting, water or drainage works or other works of public utility, and on payment of compensation.
Article 9. The right of free expression of opinion as well as the right to assemble peaceably and without arms, and to form associations or unions is guaranteed for purposes not opposed to public morality. Laws regulating the manner in which the right of forming associations and the right of free assembly may be exercised shall contain no political, religious or class distinction.
Article 10. All citizens of the Irish Free State (Saorstát Eireann) have the right to free elementary education.
Article 11. All the lands and waters, mines and minerals, within the territory of the Irish Free State (Saorstát Eireann) 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 Eireann), 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.
Article 12. A Legislature is hereby created, to be known as the Oireachtas. It shall consist of the King and two Houses, the Chamber of Deputies (otherwise called and herein generally referred to as “Dáil Eireann”) and the Senate (otherwise called and herein generally referred to as “Seanad Eireann”). The sole and exclusive power of making laws for the peace, order and good government of the Irish Free State (Saorstát Eireann) is vested in the Oireachtas.
Article 13. The Oireachtas shall sit in or near the city of Dublin or in such other place as from time to time it may determine.
Article 14. All citizens of the Irish Free State (Saorstát Eireann) without distinction of sex, who have reached the age of twenty-one years and who comply with the provisions of the prevailing electoral laws, shall have the right to vote for members of Dáil Eireann, and to take part in the Referendum and Initiative. All citizens of the Irish Free State (Saorstát Eireann) without distinction of sex who have reached the age of thirty years and who comply with the provisions of the prevailing electoral laws, shall have the right to vote for members of Seanad Eireann. No voter may exercise more than one vote at an election to either House, and the voting shall be by secret ballot. The mode and place of exercising this right shall be determined by law.
Article 15. Every citizen who has reached the age of twenty-one years and who is not placed under disability or incapacity by the Constitution or by law shall be eligible to become a member of Dáil Eireann.
Article 16. No person may be at the same time a member both of Dáil Eireann and of Seanad Eireann, and if any person who is already a member of either House is elected to be a member of the other House, he shall forthwith be deemed to have vacated his first seat.
Article 17. The oath to be taken by members of the Oireachtas shall be in the following form:— “I _______________ do solemnly swear true faith and allegiance to the Constitution of the Irish Free State as by law established, and that I will be faithful to H. M. King George V., his heirs and successors by law in virtue of the common citizenship of Ireland with Great Britain and her adherence to and membership of the group of nations forming the British Commonwealth of Nations.” Such oath shall be taken and subscribed by every member of the Oireachtas before taking his seat therein before the Representative of the Crown or some other person authorised by him.
Article 18. Every member of the Oireachtas shall, except in case of treason, felony, or breach of the peace, be privileged from arrest in going to and returning from, and while within the precincts of either House, and shall not, in respect of any utterance in either House, be amenable to any action or proceeding in any Court other than the House itself.
Article 19. All official reports and publications of the Oireachtas or of either House thereof shall be privileged, and utterances made in either House wherever published shall be privileged.
Article 20. Each House shall make its own Rules and Standing Orders, with power to attach penalties for their infringement and shall have power to ensure freedom of debate, to protect its official documents and the private papers of its members, and to protect itself and its members against any person or persons interfering with, molesting or attempting to corrupt its members in the exercise of their duties.
Article 21. Each House shall elect its own Chairman and Deputy Chairman, and shall prescribe their powers, duties, remuneration, and terms of office.
Article 22. All matters in each House shall, save as otherwise provided by this Constitution, be determined by a majority of the votes of the members present other than the Chairman or presiding member, who shall have and exercise a casting vote in the case of an equality of votes. The number of members necessary to constitute a meeting of either House for the exercise of its powers shall be determined by its Standing Orders.
Article 23. The Oireachtas shall make provision for the payment of its members, and may in addition provide them with free travelling facilities to any part of Ireland.
Article 24. The Oireachtas shall hold at least one session each year. The Oireachtas shall be summoned and dissolved by the Representative of the Crown in the name of the King and subject as aforesaid Dáil Eireann shall fix the date of re-assembly of the Oireachtas and the date of the conclusion of the session of each House: Provided that the sessions of Seanad Eireann shall not be concluded without its own consent.
Article 25. Sittings of each House of the Oireachtas shall be public. In cases of special emergency either House may hold a private sitting with the assent of two-thirds of the members present.
Article 26. Dáil Eireann shall be composed of members who represent constituencies determined by law. The number of members shall be fixed from time to time by the Oireachtas, but the total number of members of Dáil Eireann (exclusive of members for the Universities) shall not be fixed at less than one member for each thirty thousand of the population, or at more than one member for each twenty thousand of the population: Provided that the proportion between the number of members to be elected at any time for each constituency and the population of each constituency, as ascertained at the last preceding census, shall, so far as possible, be identical throughout the country. The members shall be elected upon principles of Proportional Representation. The Oireachtas shall revise the constituencies at least once in every ten years, with due regard to changes in distribution of the population, but any alterations in the constituencies shall not take effect during the life of Dáil Eireann sitting when such revision is made.
Article 27. Each University in the Irish Free State (Saorstát Eireann), which was in existence at the date of the coming into operation of this Constitution, shall be entitled to elect three representatives to Dáil Eireann upon a franchise and in a manner to be prescribed by law.
Article 28. At a General Election for Dáil Eireann the polls (exclusive of those for members for the Universities) shall be held on the same day throughout the country, and that day shall be a day not later than thirty days after the date of the dissolution, and shall be proclaimed a public holiday. Dáil Eireann shall meet within one month of such day, and shall, unless earlier dissolved, continue for four years from the date of its first meeting, and not longer. Dáil Eireann may not at any time be dissolved except on the advice of the Executive Council.
Article 29. In case of death, resignation or disqualification of a member of Dáil Eireann, the vacancy shall be filled by election in manner to be determined by law.
Article 30. Seanad Eireann shall be composed of citizens who shall be proposed on the grounds that they have done honour to the Nation by reason of useful public service or that, because of special qualifications or attainments, they represent important aspects of the Nation’s life.
Article 31. The number of members of Seanad Eireann shall be sixty. A citizen to be eligible for membership of Seanad Eireann must be a person eligible to become a member of Dáil Eireann, and must have reached the age of thirty-five years. Subject to any provision for the constitution of the first Seanad Eireann the term of office of a member of Seanad Eireann shall be twelve years.
Article 32. One-fourth of the members of Seanad Eireann shall be elected every three years from a panel constituted as hereinafter mentioned at an election at which the area of the jurisdiction of the Irish Free State (Saorstát Eireann) shall form one electoral area, and the elections shall be held on principles of Proportional Representation.
Article 33. Before each election of members of Seanad Eireann a panel shall be formed consisting of:— (a) Three times as many qualified persons as there are members to be elected, of whom two-thirds shall be nominated by Dáil Eireann voting according to principles of Proportional Representation and one-third shall be nominated by Seanad Eireann voting according to principles of Proportional Representation; and (b) Such persons who have at any time been members of Seanad Eireann (including members about to retire) as signify by notice in writing addressed to the President of the Executive Council their desire to be included in the panel. The method of proposal and selection for nomination shall be decided by Dáil Eireann and Seanad Eireann respectively, with special reference to the necessity for arranging for the representation of important interests and institutions in the country: Provided that each proposal shall be in writing and shall state the qualifications of the person proposed and that no person shall be proposed without his own consent. As soon as the panel has been formed a list of the names of the members of the panel arranged in alphabetical order with their qualifications shall be published.
Article 34. In case of the death, resignation or disqualification of a member of Seanad Eireann his place shall be filled by a vote of Seanad Eireann. Any member of Seanad Eireann so chosen shall retire from office at the conclusion of the three years period then running and the vacancy thus created shall be additional to the places to be filled under Article 32 of this Constitution. The term of office of the members chosen at the election after the first fifteen elected shall conclude at the end of the period or periods at which the member or members of Seanad Eireann, by whose death or withdrawal the vacancy or vacancies was or were originally created, would be due to retire: Provided that the sixteenth member shall be deemed to have filled the vacancy first created in order of time and so on.
Article 35. Dáil Eireann shall in relation to the subject matter of Money Bills as hereinafter defined have legislative authority exclusive of Seanad Eireann. A Money Bill means a Bill which contains only provisions dealing with all or any of the following subjects, namely, the imposition, repeal, remission, alteration or regulation of taxation; the imposition for the payment of debt or other financial purposes of charges on public moneys or the variation or repeal of any such charges; supply; the appropriation, receipt, custody, issue or audit of accounts of public money; the raising or guarantee of any loan or the repayment thereof; subordinate matters incidental to those subjects or any of them. In this definition the expressions “taxation,” “public money” and “loan” respectively do not include any taxation, money or loan raised by local authorities or bodies for local purposes. The Chairman of Dáil Eireann shall certify any Bill which in his opinion is a Money Bill to be a Money Bill, but, if within three days after a Bill has been passed by Dáil Eireann two-fifths of the members of either House by notice in writing addressed to the Chairman of the House of which they are members so require, the question whether the Bill is or is not a Money Bill shall be referred to a Committee of Privileges consisting of three members elected by each House with a Chairman who shall be the senior judge of the Supreme Court able and willing to act, and who, in the case of an equality of votes, but not otherwise, shall be entitled to vote. The decision of the Committee on the question shall be final and conclusive.
Article 36. Dáil Eireann shall as soon as possible after the commencement of each financial year consider the Estimates of receipts and expenditure of the Irish Free State (Saorstát Eireann) for that year, and, save in so far as may be provided by specific enactment in each case, the legislation required to give effect to the Financial Resolutions of each year shall be enacted within that year.
Article 37. Money shall not be appropriated by vote, resolution or law, unless the purpose of the appropriation has in the same session been recommended by a message from the Representative of the Crown acting on the advice of the Executive Council.
Article 38. Every Bill initiated in and passed by Dáil Eireann shall be sent to Seanad Eireann and may, unless it be a Money Bill, be amended in Seanad Eireann and Dáil Eireann shall consider any such amendment; but a Bill passed by Dáil Eireann and considered by Seanad Eireann shall, not later than two hundred and seventy days after it shall have been first sent to Seanad Eireann, or such longer period as may be agreed upon by the two Houses, be deemed to be passed by both Houses in the form in which it was last passed by Dáil Eireann: Provided that every Money Bill shall be sent to Seanad Eireann for its recommendations and at a period not longer than twenty-one days after it shall have been sent to Seanad Eireann, it shall be returned to Dáil Eireann which may pass it, accepting or rejecting all or any of the recommendations of Seanad Eireann, and as so passed or if not returned within such period of twenty-one days shall be deemed to have been passed by both Houses. When a Bill other than a Money Bill has been sent to Seanad Eireann a Joint Sitting of the Members of both Houses may on a resolution passed by Seanad Eireann be convened for the purpose of debating, but not of voting upon, the proposals of the Bill or any amendment of the same.
Article 39. A Bill may be initiated in Seanad Eireann and if passed by Seanad Eireann shall be introduced into Dáil Eireann. If amended by Dáil Eireann the Bill shall be considered as a Bill initiated in Dáil Eireann. If rejected by Dáil Eireann it shall not be introduced again in the same session, but Dáil Eireann may reconsider it on its own motion.
Article 40. A Bill passed by either House and accepted by the other House shall be deemed to be passed by both Houses.
Article 41. So soon as any Bill shall have been passed or deemed to have been passed by both Houses, the Executive Council shall present the same to the Representative of the Crown for the signification by him, in the King’s name, of the King’s assent, and such Representative may withhold the King’s assent or reserve the Bill for the signification of the King’s pleasure: Provided that the Representative of the Crown shall in the withholding of such assent to or the reservation of any Bill, act in accordance with the law, practice, and constitutional usage governing the like withholding of assent or reservation in the Dominion of Canada. A Bill reserved for the signification of the King’s Pleasure shall not have any force unless and until within one year from the day on which it was presented to the Representative of the Crown for the King’s Assent, the Representative of the Crown signifies by speech or message to each of the Houses of the Oireachtas, or by proclamation, that it has received the Assent of the King in Council. An entry of every such speech, message or proclamation shall be made in the Journal of each House and a duplicate thereof duly attested shall be delivered to the proper officer to be kept among the Records of the Irish Free State (Saorstát Eireann).
Article 42. As soon as may be after any law has received the King’s assent, the clerk, or such officer as Dáil Eireann may appoint for the purpose, shall cause two fair copies of such law to be made, one being in the Irish language and the other in the English language (one of which copies shall be signed by the Representative of the Crown to be enrolled for record in the office of such officer of the Supreme Court as Dáil Eireann may determine), and such copies shall be conclusive evidence as to the provisions of every such law, and in case of conflict between the two copies so deposited, that signed by the Representative of the Crown shall prevail.
Article 43. The Oireachtas shall have no power to declare acts to be infringements of the law which were not so at the date of their commission.
Article 44. The Oireachtas may create subordinate legislatures with such powers as may be decided by law.
Article 45. The Oireachtas may provide for the establishment of Functional or Vocational Councils representing branches of the social and economic life of the Nation. A law establishing any such Council shall determine its powers, rights and duties, and its relation to the government of the Irish Free State (Saorstát Eireann).
Article 46. The Oireachtas has the exclusive right to regulate the raising and maintaining of such armed forces as are mentioned in the Scheduled Treaty in the territory of the Irish Free State (Saorstát Eireann) and every such force shall be subject to the control of the Oireachtas.
Article 47. Any Bill passed or deemed to have been passed by both Houses may be suspended for a period of ninety days on the written demand of two-fifths of the members of Dáil Eireann or of a majority of the members of Seanad Eireann presented to the President of the Executive Council not later than seven days from the day on which such Bill shall have been so passed or deemed to have been so passed. Such a Bill shall in accordance with regulations to be made by the Oireachtas be submitted by Referendum to the decision of the people if demanded before the expiration of the ninety days either by a resolution of Seanad Eireann assented to by three-fifths of the members of Seanad Eireann, or by a petition signed by not less than one-twentieth of the voters then on the register of voters, and the decision of the people by a majority of the votes recorded on such Referendum shall be conclusive. These provisions shall not apply to Money Bills or to such Bills as shall be declared by both Houses to be necessary for the immediate preservation of the public peace, health or safety.
Article 48. The Oireachtas may provide for the Initiation by the people of proposals for laws or constitutional amendments. Should the Oireachtas fail to make such provision within two years, it shall on the petition of not less than seventy five thousand voters on the register, of whom not more than fifteen thousand shall be voters in any one constituency, either make such provisions or submit the question to the people for decision in accordance with the ordinary regulations governing the Referendum. Any legislation passed by the Oireachtas providing for such Initiation by the people shall provide (1) that such proposals may be initiated on a petition of fifty thousand voters on the register, (2) that if the Oireachtas rejects a proposal so initiated it shall be submitted to the people for decision in accordance with the ordinary regulations governing the Referendum; and (3) that if the Oireachtas enacts a proposal so initiated, such enactment shall be subject to the provisions respecting ordinary legislation or amendments of the Constitution as the case may be.
Article 49. Save in the case of actual invasion, the Irish Free State (Saorstát Eireann) shall not be committed to active participation in any war without the assent of the Oireachtas.
Article 50. Amendments of this Constitution within the terms of the Scheduled Treaty may be made by the Oireachtas, but no such amendment, passed by both Houses of the Oireachtas, after the expiration of a period of eight years from the date of the coming into operation of this Constitution, shall become law, unless the same shall, after it has been passed or deemed to have been passed by the said two Houses of the Oireachtas, have been submitted to a Referendum of the people, and unless a majority of the voters on the register shall have recorded their votes on such Referendum, and either the votes of a majority of the voters on the register, or two-thirds of the votes recorded, shall have been cast in favour of such amendment. Any such amendment may be made within the said period of eight years by way of ordinary legislation and as such shall be subject to the provisions of Article 47 hereof.
Article 51. The Executive Authority of the Irish Free State (Saorstát Eireann) is hereby declared to be vested in the King, and shall be exercisable, in accordance with the law, practice and constitutional usage governing the exercise of the Executive Authority in the case of the Dominion of Canada, by the Representative of the Crown. There shall be a Council to aid and advise in the government of the Irish Free State (Saorstát Eireann) to be styled the Executive Council. The Executive Council shall be responsible to Dáil Eireann, and shall consist of not more than seven nor less than five Ministers appointed by the Representative of the Crown on the nomination of the President of the Executive Council.
Article 52. Those Ministers who form the Executive Council shall all be members of Dáil Eireann and shall include the President of the Council, the Vice-President of the Council and the Minister in charge of the Department of Finance.
Article 53. The President of the Council shall be appointed on the nomination of Dáil Eireann. He shall nominate a Vice-President of the Council, who shall act for all purposes in the place of the President, if the President shall die, resign, or be permanently incapacitated, until a new President of the Council shall have been elected. The Vice-President shall also act in the place of the President during his temporary absence. The other Ministers who are to hold office as members of the Executive Council shall be appointed on the nomination of the President, with the assent of Dáil Eireann, and he and the Ministers nominated by him shall retire from office should he cease to retain the support of a majority in Dáil Eireann, but the President and such Ministers shall continue to carry on their duties until their successors shall have been appointed: Provided, however, that the Oireachtas shall not be dissolved on the advice of an Executive Council which has ceased to retain the support of a majority in Dáil Eireann.
Article 54. The Executive Council shall be collectively responsible for all matters concerning the Departments of State administered by Members of the Executive Council. The Executive Council shall prepare Estimates of the receipts and expenditure of the Irish Free State (Saorstát Eireann) for each financial year, and shall present them to Dáil Eireann before the close of the previous financial year. The Executive Council shall meet and act as a collective authority.
Article 55. Ministers who shall not be members of the Executive Council may be appointed by the Representative of the Crown, and shall comply with the provisions of Article 17 of this Constitution. Every such Minister shall be nominated by Dáil Eireann on the recommendation of a Committee of Dáil Eireann chosen by a method to be determined by Dáil Eireann, so as to be impartially representative of Dáil Eireann. Should a recommendation not be acceptable to Dáil Eireann, the Committee may continue to recommend names until one is found acceptable. The total number of Ministers, including the Ministers of the Executive Council, shall not exceed twelve.
Article 56. Every Minister who is not a member of the Executive Council shall be the responsible head of the Department or Departments under his charge, and shall be individually responsible to Dáil Eireann alone for the administration of the Department or Departments of which he is the head: Provided that should arrangements for Functional or Vocational Councils be made by the Oireachtas these Ministers or any of them may, should the Oireachtas so decide, be members of, and be recommended to Dáil Eireann by, such Councils. The term of office of any Minister, not a member of the Executive Council, shall be the term of Dáil Eireann existing at the time of his appointment, but he shall continue in office until his successor shall have been appointed, and no such Minister shall be removed from office during his term otherwise than by Dáil Eireann itself, and then for stated reasons, and after the proposal to remove him has been submitted to a Committee, chosen by a method to be determined by Dáil Eireann, so as to be impartially representative of Dáil Eireann, and the Committee has reported thereon.
Article 57. Every Minister shall have the right to attend and be heard in Seanad Eireann.
Article 58. The appointment of a member of Dáil Eireann to be a Minister shall not entail upon him any obligation to resign his seat or to submit himself for re-election.
Article 59. Ministers shall receive such remuneration as may from time to time be prescribed by law, but the remuneration of any Minister shall not be diminished during his term of office.
Article 60. The Representative of the Crown, who shall be styled the Governor-General of the Irish Free State (Saorstát Eireann) shall be appointed in like manner as the Governor-General of Canada and in accordance with the practice observed in the making of such appointments. His salary shall be of the like amount as that now payable to the Governor-General of the Commonwealth of Australia and shall be charged on the public funds of the Irish Free State (Saorstát Eireann) and suitable provision shall be made out of those funds for the maintenance of his official residence and establishment.
Article 61. All revenues of the Irish Free State (Saorstát Eireann) from whatever source arising, shall, subject to such exception as may be provided by law, form one fund, and shall be appropriated for the purposes of the Irish Free State (Saorstát Eireann) in the manner and subject to the charges and liabilities imposed by law.
Article 62. Dáil Eireann shall appoint a Comptroller and Auditor-General to act on behalf of the Irish Free State (Saorstát Eireann). He shall control all disbursements and shall audit all accounts of moneys administered by or under the authority of the Oireachtas and shall report to Dáil Eireann at stated periods to be determined by law.
Article 63. The Comptroller and Auditor-General shall not be removed except for stated misbehaviour or incapacity on resolutions passed by Dáil Eireann and Seanad Eireann. Subject to this provision, the terms and conditions of his tenure of office shall be fixed by law. He shall not be a member of the Oireachtas, nor shall he hold any other office or position of emolument.
Article 64. The judicial power of the Irish Free State (Saorstát Eireann) shall be exercised and justice administered in the public Courts established by the Oireachtas by judges appointed in manner hereinafter provided. These Courts shall comprise Courts of First Instance and a Court of Final Appeal to be called the Supreme Court. The Courts of First Instance shall include a High Court invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal, and also Courts of local and limited jurisdiction, with a right of appeal as determined by law.
Article 65. The judicial power of the High Court shall extend to the question of the validity of any law having regard to the provisions of the Constitution. In all cases in which such matters shall come into question, the High Court alone shall exercise original jurisdiction.
Article 66. The Supreme Court of the Irish Free State (Saorstát Eireann) shall, with such exceptions (not including cases which involve questions as to the validity of any law) and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court. The decision of the Supreme Court shall in all cases be final and conclusive, and shall not be reviewed or capable of being reviewed by any other Court, Tribunal or Authority whatsoever: Provided that nothing in this Constitution shall impair the right of any person to petition His Majesty for special leave to appeal from the Supreme Court to His Majesty in Council or the right of His Majesty to grant such leave.
Article 67. The number of judges, the constitution and organisation of, and distribution of business and jurisdiction among, the said Courts and judges, and all matters of procedure shall be as prescribed by the laws for the time being in force and the regulations made thereunder.
Article 68. The judges of the Supreme Court and of the High Court and of all other Courts established in pursuance of this Constitution shall be appointed by the Representative of the Crown on the advice of the Executive Council. The judges of the Supreme Court and of the High Court shall not be removed except for stated misbehaviour or incapacity, and then only by resolutions passed by both Dáil Eireann and Seanad Eireann. The age of retirement, the remuneration and the pension of such judges on retirement and the declarations to be taken by them on appointment shall be prescribed by law. Such remuneration may not be diminished during their continuance in office. The terms of appointment of the judges of such other courts as may be created shall be prescribed by law.
Article 69. All judges shall be independent in the exercise of their functions, and subject only to the Constitution and the law. A judge shall not be eligible to sit in the Oireachtas, and shall not hold any other office or position of emolument.
Article 70. No one shall be tried save in due course of law, and extraordinary courts shall not be established, save only such Military Tribunals as may be authorised by law for dealing with Military offenders against military law. The jurisdiction of Military Tribunals shall not be extended to or exercised over the civil population save in time of war, or armed rebellion, and for acts committed in time of war or armed rebellion, and in accordance with the regulations to be prescribed by law. Such jurisdiction shall not be exercised in any area in which all civil courts are open or capable of being held, and no person shall be removed from one area to another for the purpose of creating such jurisdiction.
Article 71. A member of the armed forces of the Irish Free State (Saorstát Eireann) not on active service shall not be tried by any Court Martial or other Military Tribunal for an offence cognisable by the Civil Courts, unless such offence shall have been brought expressly within the jurisdiction of Courts Martial or other Military Tribunal by any code of laws or regulations for the enforcement of military discipline which may be hereafter approved by the Oireachtas.
Article 72. No person shall be tried on any criminal charge without a jury save in the case of charges in respect of minor offences triable by law before a Court of Summary Jurisdiction and in the case of charges for offences against military law triable by Court Martial or other Military Tribunal.
TRANSITORY PROVISIONS.
Article 73. 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 Eireann) 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 shall have been repealed or amended by enactment of the Oireachtas.
Article 74. Nothing in this Constitution shall affect any liability to pay any tax or duty payable in respect of the financial year current at the date of the coming into operation of this Constitution or any preceding financial year, or in respect of any period ending on or before the last day of the said current financial year, or payable on any occasion happening within that or any preceding year, or the amount of such liability; and during the said current financial year all taxes and duties and arrears thereof shall continue to be assessed, levied and collected in like manner in all respects as immediately before this Constitution came into operation, subject to the like adjustments of the proceeds collected as were theretofore applicable; and for that purpose the Executive Council shall have the like powers and be subject to the like liabilities as the Provisional Government. Goods transported during the said current financial year from or to the Irish Free State (Saorstát Eireann) to or from any part of Great Britain or the Isle of Man shall not, except so far as the Executive Council may otherwise direct, in respect of the forms to be used and the information to be furnished, be treated as goods exported or imported, as the case may be. For the purpose of this Article, the expression “financial year” means, as respects income tax (including super-tax) the year of assessment, and as respects other taxes and duties, the year ending on the thirty-first day of March.
Article 75. Until Courts have been established for the Irish Free State (Saorstát Eireann) in accordance with this Constitution, the Supreme Court of Judicature, County Courts, Courts of Quarter Sessions and Courts of Summary Jurisdiction, as at present existing, shall for the time being continue to exercise the same jurisdiction as heretofore, and any judge or justice, being a member of any such Court, holding office at the time when this Constitution comes into operation, shall for the time being continue to be a member thereof and hold office by the like tenure and upon the like terms as heretofore, unless, in the case of a judge of the said Supreme Court or of a County Court, he signifies to the Representative of the Crown his desire to resign. Any vacancies in any of the said Courts so continued may be filled by appointment made in like manner as appointments to judgeships in the Courts established under this Constitution: Provided that the provisions of Article 66 of this Constitution as to the decisions of the Supreme Court established under this Constitution shall apply to decisions of the Court of Appeal continued by this Article.
Article 76. If any judge of the said Supreme Court of Judicature or of any of the said County Courts on the establishment of Courts under this Constitution, is not with his consent appointed to be a judge of any such Court, he shall, for the purpose of Article 10 of the Scheduled Treaty, be treated as if he had retired in consequence of the change of Government effected in pursuance of the said Treaty, but the rights so conferred shall be without prejudice to any rights or claims that he may have against the British Government.
Article 77. Every existing officer of the Provisional Government at the date of the coming into operation of this Constitution (not being an officer whose services have been lent by the British Government to the Provisional Government) shall on that date be transferred to and become an officer of the Irish Free State (Saorstát Eireann), and shall hold office by a tenure corresponding to his previous tenure.
Article 78. Every such existing officer who was transferred from the British Government by virtue of any transfer of services to the Provisional Government shall be entitled to the benefit of Article 10 of the Scheduled Treaty.
Article 79. The transfer of the administration of any public service, the administration of which was not before the date of the coming into operation of this Constitution transferred to the Provisional Government, shall be deferred until the 31st day of March, 1923, or such earlier date as may, after one month’s previous notice in the Official Gazette, be fixed by the Executive Council; and such of the officers engaged in the administration of those services at the date of transfer as may be determined in the manner hereinafter appearing shall be transferred to and become officers of the Irish Free State (Saorstát Eireann); and Article 77 of this Constitution shall apply as if such officers were existing officers of the Provisional Government who had been transferred to that Government from the British Government. The officers to be so transferred in respect of any services shall be determined in like manner as if the administration of the services had before the coming into operation of the Constitution been transferred to the Provisional Government.
Article 80. As respects departmental property, assets, rights and liabilities, the Government of the Irish Free State (Saorstát Eireann) shall be regarded as the successors of the Provisional Government, and, to the extent to which functions of any department of the British Government become functions of the Government of the Irish Free State (Saorstát Eireann), as the successors of such department of the British Government.
Article 81. After the date on which this Constitution comes into operation the House of the Parliament elected in pursuance of the Irish Free State (Agreement) Act, 1922 (being the constituent assembly for the settlement of this Constitution), may, for a period not exceeding one year from that date, but subject to compliance by the members thereof with the provisions of Article 17 of this Constitution, exercise all the powers and authorities conferred on Dáil Eireann by this Constitution, and the first election for Dáil Eireann under Articles 26, 27 and 28 hereof shall take place as soon as possible after the expiration of such period.
Article 82. Notwithstanding anything contained in Articles 14 and 33 hereof, the first Seanad Eireann shall be constituted immediately after the coming into operation of this Constitution in the manner following, that is to say:— (a) The first Seanad Eireann shall consist of sixty members, of whom thirty shall be elected and thirty shall be nominated. (b) The thirty nominated members of Seanad Eireann shall be nominated by the President of the Executive Council who shall, in making such nominations, have special regard to the providing of representation for groups or parties not then adequately represented in Dáil Eireann. (c) The thirty elected members of Seanad Eireann shall be elected by Dáil Eireann voting on principles of Proportional Representation. (d) Of the thirty nominated members, fifteen to be selected by lot shall hold office for the full period of twelve years, the remaining fifteen shall hold office for the period of six years. (e) Of the thirty elected members the first fifteen elected shall hold office for the period of nine years, the remaining fifteen shall hold office for the period of three years. (f) At the termination of the period of office of any such members, members shall be elected in their place in manner provided by Article 32 of this Constitution. (g) Casual vacancies shall be filled in manner provided by Article 34 of this Constitution.
Article 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 sixth day of December, Nineteen hundred and twenty-two, by Proclamation of His Majesty, and this Constitution shall come into operation on the issue of such Proclamation.
SECOND SCHEDULE ABOVE REFERRED TO. ARTICLES OF AGREEMENT FOR A TREATY BETWEEN GREAT BRITAIN AND IRELAND.
Ireland shall have the same constitutional status in the Community of Nations known as the British Empire as the Dominion of Canada, the Commonwealth of Australia, the Dominion of New Zealand, and the Union of South Africa, with a Parliament having powers to make laws for the peace, order and good government of Ireland, and an Executive responsible to that Parliament, and shall be styled and known as the Irish Free State.
Subject to the provisions hereinafter set out the position of the Irish Free State in relation to the Imperial Parliament and Government and otherwise shall be that of the Dominion of Canada, and the law, practice and constitutional usage governing the relationship of the Crown or the representative of the Crown and of the Imperial Parliament to the Dominion of Canada shall govern their relationship to the Irish Free State.
The representative of the Crown in Ireland shall be appointed in like manner as the Governor-General of Canada and in accordance with the practice observed in the making of such appointments.
The oath to be taken by Members of the Parliament of the Irish Free State shall be in the following form:— “I ________ do solemnly swear true faith and allegiance to the Constitution of the Irish Free State as by law established and that I will be faithful to H.M. King George V., his heirs and successors by law, in virtue of the common citizenship of Ireland with Great Britain and her adherence to and membership of the group of nations forming the British Commonwealth of Nations.”
The Irish Free State shall assume liability for the service of the Public Debt of the United Kingdom as existing at the date hereof and towards the payment of war pensions as existing at that date in such proportion as may be fair and equitable, having regard to any just claims on the part of Ireland by way of set off or counter-claim, the amount of such sums being determined in default of agreement by the arbitration of one or more independent persons being citizens of the British Empire.
Until an arrangement has been made between the British and Irish Governments whereby the Irish Free State undertakes her own coastal defence, the defence by sea of Great Britain and Ireland shall be undertaken by His Majesty’s Imperial Forces. But this shall not prevent the construction or maintenance by the Government of the Irish Free State of such vessels as are necessary for the protection of the Revenue or the Fisheries. The foregoing provisions of this Article shall be reviewed at a Conference of Representatives of the British and Irish Governments to be held at the expiration of five years from the date hereof with a view to the undertaking by Ireland of a share in her own coastal defence.
The Government of the Irish Free State shall afford to His Majesty’s Imperial Forces:— (a) In time of peace such harbour and other facilities as are indicated in the Annex hereto, or such other facilities as may from time to time be agreed between the British Government and the Government of the Irish Free State; and (b) In time of war or of strained relations with a Foreign Power such harbour and other facilities as the British Government may require for the purpose of such defence as aforesaid.
With a view to securing the observance of the principle of international limitation of armaments, if the Government of the Irish Free State establishes and maintains a military defence force, the establishments thereof shall not exceed in size such proportion of the military establishments maintained in Great Britain as that which the population of Ireland bears to the population of Great Britain.
The ports of Great Britain and the Irish Free State shall be freely open to the ships of the other country on payment of the customary port and other dues.
The Government of the Irish Free State agrees to pay fair compensation on terms not less favourable than those accorded by the Act of 1920 to judges, officials, members of Police Forces and other Public Servants who are discharged by it or who retire in consequence of the change of government effected in pursuance hereof. Provided that this agreement shall not apply to members of the Auxiliary Police Force or to persons recruited in Great Britain for the Royal Irish Constabulary during the two years next preceding the date hereof. The British Government will assume responsibility for such compensation or pensions as may be payable to any of these excepted persons.
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, and no election shall be held for the return of members to serve in the Parliament of the Irish Free State for constituencies in Northern Ireland, unless a resolution is passed by both Houses of the Parliament of Northern Ireland in favour of the holding of such elections before the end of the said month.
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. Provided that if such an address is so presented a Commission consisting of three persons, one to be appointed by the Government of the Irish Free State, one to be appointed by the Government of Northern Ireland and one, who shall be Chairman, to be appointed by the British Government shall determine in accordance with the wishes of the inhabitants, so far as may be compatible with economic and geographic conditions, the boundaries between Northern Ireland and the rest of Ireland, and for the purposes of the Government of Ireland Act, 1920, and of this instrument, the boundary of Northern Ireland shall be such as may be determined by such Commission.
For the purpose of the last foregoing article, the powers of the Parliament of Southern Ireland under the Government of Ireland Act, 1920, to elect members of the Council of Ireland shall after the Parliament of the Irish Free State is constituted be exercised by that Parliament.
After the expiration of the said month, if no such address as is mentioned in Article 12 hereof is presented, the Parliament and Government of Northern Ireland shall continue to exercise as respects Northern Ireland the powers conferred on them by the Government of Ireland Act, 1920, but the Parliament and Government of the Irish Free State shall in Northern Ireland have in relation to matters in respect of which the Parliament of Northern Ireland has not power to make laws under that Act (including matters which under the said Act are within the jurisdiction of the Council of Ireland) the same powers as in the rest of Ireland subject to such other provisions as may be agreed in manner hereinafter appearing.
At any time after the date hereof the Government of Northern Ireland and the provisional Government of Southern Ireland hereinafter constituted may meet for the purpose of discussing the provisions subject to which the last foregoing article is to operate in the event of no such address as is therein mentioned being presented, and those provisions may include:— (a) Safeguards with regard to patronage in Northern Ireland; (b) Safeguards with regard to the collection of revenue in Northern Ireland; (c) Safeguards with regard to import and export duties affecting the trade or industry of Northern Ireland; (d) Safeguards for minorities in Northern Ireland; (e) The settlement of the financial relations between Northern Ireland and the Irish Free State. (f) The establishment and powers of a local militia in Northern Ireland and the relation of the Defence Forces of the Irish Free State and of Northern Ireland respectively; and if at any such meeting provisions are agreed to, the same shall have effect as if they were included amongst the provisions subject to which the Powers of the Parliament and Government of the Irish Free State are to be exercisable in Northern Ireland under Article 14 hereof.
Neither the Parliament of the Irish Free State nor the Parliament of Northern Ireland shall make any law so as either directly or indirectly to endow any religion or prohibit or restrict the free exercise thereof or give any preference or impose any disability on account of religious belief or religious status or affect prejudicially the right of any child to attend a school receiving public money without attending the religious instruction at the school or make any discrimination as respects state aid between schools under the management of different religious denominations or divert from any religious denomination or any educational institution any of its property except for public utility purposes and on payment of compensation.
By way of provisional arrangement for the administration of Southern Ireland during the interval which must elapse between the date hereof and the constitution of a Parliament and Government of the Irish Free State in accordance therewith, steps shall be taken forthwith for summoning a meeting of members of Parliament elected for constituencies in Southern Ireland since the passing of the Government of Ireland Act, 1920, and for constituting a provisional Government, and the British Government shall take the steps necessary to transfer to such provisional Government the powers and machinery requisite for the discharge of its duties, provided that every member of such provisional Government shall have signified in writing his or her acceptance of this instrument. But this arrangement shall not continue in force beyond the expiration of twelve months from the date hereof.
This instrument shall be submitted forthwith by His Majesty’s Government for the approval of Parliament and by the Irish signatories to a meeting summoned for the purpose of the members elected to sit in the House of Commons of Southern Ireland, and if approved shall be ratified by the necessary legislation.
In the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred,
We, the people of Éire,
Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, Who sustained our fathers through centuries of trial,
Gratefully remembering their heroic and unremitting struggle to regain the rightful independence of our Nation,
And seeking to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations,
Do hereby adopt, enact, and give to ourselves this Constitution.
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 It is the entitlement and birthright of every person born in the island of Ireland, which includes its islands and seas, to be part of the Irish Nation. That is also the entitlement of all persons otherwise qualified in accordance with law to be citizens of Ireland. Furthermore, the Irish nation cherishes its special affinity with people of Irish ancestry living abroad who share its cultural identity and heritage.
Article 3 1 It is the firm will of the Irish Nation, in harmony and friendship, to unite all the people who share the territory of the island of Ireland, in all the diversity of their identities and traditions, recognising that a united Ireland shall be brought about only by peaceful means with the consent of a majority of the people, democratically expressed, in both jurisdictions in the island. Until then, the laws enacted by the Parliament established by this Constitution shall have the like area and extent of application as the laws enacted by the Parliament that existed immediately before the coming into operation of this Constitution. 2 Institutions with executive powers and functions that are shared between those jurisdictions may be established by their respective responsible authorities for stated purposes and may exercise powers and functions in respect of all or any part of the island.
The State
Article 4 The name of the State is Éire, or, in the English language, Ireland.
Article 5 Ireland is a sovereign, independent, democratic state.
Article 6 1 All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good. 2 These powers of government are exercisable only by or on the authority of the organs of State established by this Constitution.
Article 7 The national flag is the tricolour of green, white and orange.
Article 8 1 The Irish language as the national language is the first official language. 2 The English language is recognised as a second official language. 3 Provision may, however, be made by law for the exclusive use of either of the said languages for any one or more official purposes, either throughout the State or in any part thereof.
Article 9 1 1° On the coming into operation of this Constitution any person who was a citizen of Saorstát Éireann immediately before the coming into operation of this Constitution shall become and be a citizen of Ireland. 2° The future acquisition and loss of Irish nationality and citizenship shall be determined in accordance with law. 3° No person may be excluded from Irish nationality and citizenship by reason of the sex of such person. 2 1° Notwithstanding any other provision of this Constitution, a person born in the island of Ireland, which includes its islands and seas, who does not have, at the time of the birth of that person, at least one parent who is an Irish citizen or entitled to be an Irish citizen is not entitled to Irish citizenship or nationality, unless provided for by law. 2° This section shall not apply to persons born before the date of the enactment of this section, 3 Fidelity to the nation and loyalty to the State are fundamental political duties of all citizens.
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. 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.
Article 11 All revenues of the State from whatever source arising shall, subject to such exception as may be provided by law, form one fund, and shall be appropriated for the purposes and in the manner and subject to the charges and liabilities determined and imposed by law.
The President
Article 12 1 There shall be a President of Ireland (Uachtarán na hÉireann), hereinafter called the President, who shall take precedence over all other persons in the State and who shall exercise and perform the powers and functions conferred on the President by this Constitution and by law. 2 1° The President shall be elected by direct vote of the people. 2° Every citizen who has the right to vote at an election for members of Dáil Éireann shall have the right to vote at an election for President. 3° The voting shall be by secret ballot and on the system of proportional representation by means of the single transferable vote. 3 1° The President shall hold office for seven years from the date upon which he enters upon his office, unless before the expiration of that period he dies, or resigns, or is removed from office, or becomes permanently incapacitated, such incapacity being established to the satisfaction of the Supreme Court consisting of not less than five judges. 2° A person who holds, or who has held, office as President, shall be eligible for re-election to that office once, but only once. 3° An election for the office of President shall be held not later than, and not earlier than the sixtieth day before, the date of the expiration of the term of office of every President, but in the event of the removal from office of the President or of his death, resignation, or permanent incapacity established as aforesaid (whether occurring before or after he enters upon his office), an election for the office of President shall be held within sixty days after such event. 4 1° Every citizen who has reached his thirty-fifth year of age is eligible for election to the office of President. 2° Every candidate for election, not a former or retiring President, must be nominated either by: i not less than twenty persons, each of whom is at the time a member of one of the Houses of the Oireachtas, or ii by the Councils of not less than four administrative Counties (including County Boroughs) as defined by law. 3° No person and no such Council shall be entitled to subscribe to the nomination of more than one candidate in respect of the same election. 4° Former or retiring Presidents may become candidates on their own nomination. 5° Where only one candidate is nominated for the office of President it shall not be necessary to proceed to a ballot for his election. 5 Subject to the provisions of this Article, elections for the office of President shall be regulated by law. 6 1° The President shall not be a member of either House of the Oireachtas. 2° If a member of either House of the Oireachtas be elected President, he shall be deemed to have vacated his seat in that House. 3° The President shall not hold any other office or position of emolument. 7 The first President shall enter upon his office as soon as may be after his election, and every subsequent President shall enter upon his office on the day following the expiration of the term of office of his predecessor or as soon as may be thereafter or, in the event of his predecessor’s removal from office, death, resignation, or permanent incapacity established as provided by section 3 hereof, as soon as may be after the election. 8 The President shall enter upon his office by taking and subscribing publicly, in the presence of members of both Houses of the Oireachtas, of Judges of the Supreme Court and of the High Court, and other public personages, the following declaration: “In the presence of Almighty God I do solemnly and sincerely promise and declare that I will maintain the Constitution of Ireland and uphold its laws, that I will fulfil my duties faithfully and conscientiously in accordance with the Constitution and the law, and that I will dedicate my abilities to the service and welfare of the people of Ireland. May God direct and sustain me.” 9 The President shall not leave the State during his term of office save with the consent of the Government. 10 1° The President may be impeached for stated misbehaviour. 2° The charge shall be preferred by either of the Houses of the Oireachtas, subject to and in accordance with the provisions of this section. 3° A proposal to either House of the Oireachtas to prefer a charge against the President under this section shall not be entertained unless upon a notice of motion in writing signed by not less than thirty members of that House. 4° No such proposal shall be adopted by either of the Houses of the Oireachtas save upon a resolution of that House supported by not less than two-thirds of the total membership thereof. 5° When a charge has been preferred by either House of the Oireachtas, the other House shall investigate the charge, or cause the charge to be investigated. 6° The President shall have the right to appear and to be represented at the investigation of the charge. 7° If, as a result of the investigation, a resolution be passed supported by not less than two-thirds of the total membership of the House of the Oireachtas by which the charge was investigated, or caused to be investigated, declaring that the charge preferred against the President has been sustained and that the misbehaviour, the subject of the charge, was such as to render him unfit to continue in office, such resolution shall operate to remove the President from his office. 11 1° The President shall have an official residence in or near the City of Dublin. 2° The President shall receive such emoluments and allowances as may be determined by law. 3° The emoluments and allowances of the President shall not be diminished during his term of office.
Article 13 1 1° The President shall, on the nomination of Dáil Éireann, appoint the Taoiseach, that is, the head of the Government or Prime Minister. 2° The President shall, on the nomination of the Taoiseach with the previous approval of Dáil Éireann, appoint the other members of the Government. 3° The President shall, on the advice of the Taoiseach, accept the resignation or terminate the appointment of any member of the Government. 2 1° Dáil Éireann shall be summoned and dissolved by the President on the advice of the Taoiseach. 2° The President may in his absolute discretion refuse to dissolve Dáil Éireann on the advice of a Taoiseach who has ceased to retain the support of a majority in Dáil Éireann. 3° The President may at any time, after consultation with the Council of State, convene a meeting of either or both of the Houses of the Oireachtas. 3 1° Every Bill passed or deemed to have been passed by both Houses of the Oireachtas shall require the signature of the President for its enactment into law. 2° The President shall promulgate every law made by the Oireachtas. 4 The supreme command of the Defence Forces is hereby vested in the President. 5 1° The exercise of the supreme command of the Defence Forces shall be regulated by law. 2° All commissioned officers of the Defence Forces shall hold their commissions from the President. 6 The right of pardon and the power to commute or remit punishment imposed by any court exercising criminal jurisdiction are hereby vested in the President, but such power of commutation or remission may also be conferred by law on other authorities. 7 1° The President may, after consultation with the Council of State, communicate with the Houses of the Oireachtas by message or address on any matter of national or public importance. 2° The President may, after consultation with the Council of State, address a message to the Nation at any time on any such matter. 3° Every such message or address must, however, have received the approval of the Government. 8 1° The President shall not be answerable to either House of the Oireachtas or to any court for the exercise and performance of the powers and functions of his office or for any act done or purporting to be done by him in the exercise and performance of these powers and functions. 2° The behaviour of the President may, however, be brought under review in either of the Houses of the Oireachtas for the purposes of section 10 of Article 12 of this Constitution, or by any court, tribunal or body appointed or designated by either of the Houses of the Oireachtas for the investigation of a charge under section 10 of the said Article. 9 The powers and functions conferred on the President by this Constitution shall be exercisable and performable by him only on the advice of the Government, save where it is provided by this Constitution that he shall act in his absolute discretion or after consultation with or in relation to the Council of State, or on the advice or nomination of, or on receipt of any other communication from, any other person or body. 10 Subject to this Constitution, additional powers and functions may be conferred on the President by law. 11 No power or function conferred on the President by law shall be exercisable or performable by him save only on the advice of the Government.
Article 14 1 In the event of the absence of the President, or his temporary incapacity, or his permanent incapacity established as provided by section 3 of Article 12 hereof, or in the event of his death, resignation, removal from office, or failure to exercise and perform the powers and functions of his office or any of them, or at any time at which the office of President may be vacant, the powers and functions conferred on the President by or under this Constitution shall be exercised and performed by a Commission constituted as provided in section 2 of this Article. 2 1° The Commission shall consist of the following persons, namely, the Chief Justice, the Chairman of Dáil Éireann (An Ceann Comhairle), and the Chairman of Seanad Éireann. 2° The President of the High Court shall act as a member of the Commission in the place of the Chief Justice on any occasion on which the office of Chief Justice is vacant or on which the Chief Justice is unable to act. 3° The Deputy Chairman of Dáil Éireann shall act as a member of the Commission in the place of the Chairman of Dáil Éireann on any occasion on which the office of Chairman of Dáil Éireann is vacant or on which the said Chairman is unable to act. 4° The Deputy Chairman of Seanad Éireann shall act as a member of the Commission in the place of the Chairman of Seanad Éireann on any occasion on which the office of Chairman of Seanad Éireann is vacant or on which the said Chairman is unable to act. 3 The Commission may act by any two of their number and may act notwithstanding a vacancy in their membership. 4 The Council of State may by a majority of its members make such provision as to them may seem meet for the exercise and performance of the powers and functions conferred on the President by or under this Constitution in any contingency which is not provided for by the foregoing provisions of this Article. 5 1° The provisions of this Constitution which relate to the exercise and performance by the President of the powers and functions conferred on him by or under this Constitution shall subject to the subsequent provisions of this section apply to the exercise and performance of the said powers and functions under this Article. 2° In the event of the failure of the President to exercise or perform any power or function which the President is by or under this Constitution required to exercise or perform within a specified time, the said power or function shall be exercised or performed under this Article, as soon as may be after the expiration of the time so specified.
The National Parliament Constitution and Powers
Article 15 1 1° The National Parliament shall be called and known, and is in this Constitution generally referred to, as the Oireachtas. 2° The Oireachtas shall consist of the President and two Houses, viz.: a House of Representatives to be called Dáil Éireann and a Senate to be called Seanad Éireann. 3° The Houses of the Oireachtas shall sit in or near the City of Dublin or in such other place as they may from time to time determine. 2 1° The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State. 2° Provision may however be made by law for the creation or recognition of subordinate legislatures and for the powers and functions of these legislatures. 3 1° The Oireachtas may provide for the establishment or recognition of functional or vocational councils representing branches of the social and economic life of the people. 2° A law establishing or recognising any such council shall determine its rights, powers and duties, and its relation to the Oireachtas and to the Government. 4 1° The Oireachtas shall not enact any law which is in any respect repugnant to this Constitution or any provision thereof. 2° Every law enacted by the Oireachtas which is in any respect repugnant to this Constitution or to any provision thereof, shall, but to the extent only of such repugnancy, be invalid. 5 1° The Oireachtas shall not declare acts to be infringements of the law which were not so at the date of their commission. 2° The Oireachtas shall not enact any law providing for the imposition of the death penalty. 6 1° The right to raise and maintain military or armed forces is vested exclusively in the Oireachtas. 2° No military or armed force, other than a military or armed force raised and maintained by the Oireachtas, shall be raised or maintained for any purpose whatsoever. 7 The Oireachtas shall hold at least one session every year. 8 1° Sittings of each House of the Oireachtas shall be public. 2° In cases of special emergency, however, either House may hold a private sitting with the assent of two-thirds of the members present. 9 1° Each House of the Oireachtas shall elect from its members its own Chairman and Deputy Chairman, and shall prescribe their powers and duties. 2° The remuneration of the Chairman and Deputy Chairman of each House shall be determined by law. 10 Each House shall make its own rules and standing orders, with power to attach penalties for their infringement, and shall have power to ensure freedom of debate, to protect its official documents and the private papers of its members, and to protect itself and its members against any person or persons interfering with, molesting or attempting to corrupt its members in the exercise of their duties. 11 1° All questions in each House shall, save as otherwise provided by this Constitution, be determined by a majority of the votes of the members present and voting other than the Chairman or presiding member. 2° The Chairman or presiding member shall have and exercise a casting vote in the case of an equality of votes. 3° The number of members necessary to constitute a meeting of either House for the exercise of its powers shall be determined by its standing orders. 12 All official reports and publications of the Oireachtas or of either House thereof and utterances made in either House wherever published shall be privileged. 13 The members of each House of the Oireachtas shall, except in case of treason as defined in this Constitution, felony or breach of the peace, be privileged from arrest in going to and returning from, and while within the precincts of, either House, and shall not, in respect of any utterance in either House, be amenable to any court or any authority other than the House itself. 14 No person may be at the same time a member of both Houses of the Oireachtas, and, if any person who is already a member of either House becomes a member of the other House, he shall forthwith be deemed to have vacated his first seat. 15 The Oireachtas may make provision by law for the payment of allowances to the members of each House thereof in respect of their duties as public representatives and for the grant to them of free travelling and such other facilities (if any) in connection with those duties as the Oireachtas may determine.
Dáil Éireann
Article 16 1 1° Every citizen without distinction of sex who has reached the age of twenty-one years, and who is not placed under disability or incapacity by this Constitution or by law, shall be eligible for membership of Dáil Éireann. 2° i All citizens, and ii such other persons in the State as may be determined by law, without distinction of sex who have reached the age of eighteen years who are not disqualified by law and comply with the provisions of the law relating to the election of members of Dáil Éireann, shall have the right to vote at an election for members of Dáil Éireann. 3° No law shall be enacted placing any citizen under disability or incapacity for membership of Dáil Éireann on the ground of sex or disqualifying any citizen or other person from voting at an election for members of Dáil Éireann on that ground. 4° No voter may exercise more than one vote at an election for Dáil Éireann, and the voting shall be by secret ballot. 2 1° Dáil Éireann shall be composed of members who represent constituencies determined by law. 2° The number of members shall from time to time be fixed by law, but the total number of members of Dáil Éireann shall not be fixed at less than one member for each thirty thousand of the population, or at more than one member for each twenty thousand of the population. 3° The ratio between the number of members to be elected at any time for each constituency and the population of each constituency, as ascertained at the last preceding census, shall, so far as it is practicable, be the same throughout the country. 4° The Oireachtas shall revise the constituencies at least once in every twelve years, with due regard to changes in distribution of the population, but any alterations in the constituencies shall not take effect during the life of Dáil Éireann sitting when such revision is made. 5° The members shall be elected on the system of proportional representation by means of the single transferable vote. 6° No law shall be enacted whereby the number of members to be returned for any constituency shall be less than three. 3 1° Dáil Éireann shall be summoned and dissolved as provided by section 2 of Article 13 of this Constitution. 2° A general election for members of Dáil Éireann shall take place not later than thirty days after a dissolution of Dáil Éireann. 4 1° Polling at every general election for Dáil Éireann shall as far as practicable take place on the same day throughout the country. 2° Dáil Éireann shall meet within thirty days from that polling day. 5 The same Dáil Éireann shall not continue for a longer period than seven years from the date of its first meeting: a shorter period may be fixed by law. 6 Provision shall be made by law to enable the member of Dáil Éireann who is the Chairman immediately before a dissolution of Dáil Éireann to be deemed without any actual election to be elected a member of Dáil Éireann at the ensuing general election. 7 Subject to the foregoing provisions of this Article, elections for membership of Dáil Éireann, including the filling of casual vacancies, shall be regulated in accordance with law.
Article 17 1 1° As soon as possible after the presentation to Dáil Éireann under Article 28 of this Constitution of the Estimates of receipts and the Estimates of expenditure of the State for any financial year, Dáil Éireann shall consider such Estimates. 2° Save in so far as may be provided by specific enactment in each case, the legislation required to give effect to the Financial Resolutions of each year shall be enacted within that year. 2 Dáil Éireann shall not pass any vote or resolution, and no law shall be enacted, for the appropriation of revenue or other public moneys unless the purpose of the appropriation shall have been recommended to Dáil Éireann by a message from the Government signed by the Taoiseach.
Seanad Éireann
Article 18 1 Seanad Éireann shall be composed of sixty members, of whom eleven shall be nominated members and forty-nine shall be elected members. 2 A person to be eligible for membership of Seanad Éireann must be eligible to become a member of Dáil Éireann. 3 The nominated members of Seanad Éireann shall be nominated, with their prior consent, by the Taoiseach who is appointed next after the re-assembly of Dáil Éireann following the dissolution thereof which occasions the nomination of the said members. 4 1° The elected members of Seanad Éireann shall be elected as follows:— i Three shall be elected by the National University of Ireland. ii Three shall be elected by the University of Dublin. iii Forty-three shall be elected from panels of candidates constituted as hereinafter provided. 2° Provision may be made by law for the election, on a franchise and in the manner to be provided by law, by one or more of the following institutions, namely: i the universities mentioned in subsection 1° of this section, ii any other institutions of higher education in the State, of so many members of Seanad Éireann as may be fixed by law in substitution for an equal number of the members to be elected pursuant to paragraphs i and ii of the said subsection 1°. A member or members of Seanad Éireann may be elected under this subsection by institutions grouped together or by a single institution. 3° Nothing in this Article shall be invoked to prohibit the dissolution by law of a university mentioned in subsection 1° of this section. 5 Every election of the elected members of Seanad Éireann shall be held on the system of proportional representation by means of the single transferable vote, and by secret postal ballot. 6 The members of Seanad Éireann to be elected by the Universities shall be elected on a franchise and in the manner to be provided by law. 7 1° Before each general election of the members of Seanad Éireann to be elected from panels of candidates, five panels of candidates shall be formed in the manner provided by law containing respectively the names of persons having knowledge and practical experience of the following interests and services, namely:– i National Language and Culture, Literature, Art, Education and such professional interests as may be defined by law for the purpose of this panel; ii Agriculture and allied interests, and Fisheries; iii Labour, whether organised or unorganised; iv Industry and Commerce, including banking, finance, accountancy, engineering and architecture; v Public Administration and social services, including voluntary social activities. 2° Not more than eleven and, subject to the provisions of Article 19 hereof, not less than five members of Seanad Éireann shall be elected from any one panel. 8 A general election for Seanad Éireann shall take place not later than ninety days after a dissolution of Dáil Éireann, and the first meeting of Seanad Éireann after the general election shall take place on a day to be fixed by the President on the advice of the Taoiseach. 9 Every member of Seanad Éireann shall, unless he previously dies, resigns, or becomes disqualified, continue to hold office until the day before the polling day of the general election for Seanad Éireann next held after his election or nomination. 10 1° Subject to the foregoing provisions of this Article elections of the elected members of Seanad Éireann shall be regulated by law. 2° Casual vacancies in the number of the nominated members of Seanad Éireann shall be filled by nomination by the Taoiseach with the prior consent of persons so nominated. 3° Casual vacancies in the number of the elected members of Seanad Éireann shall be filled in the manner provided by law.
Article 19 Provision may be made by law for the direct election by any functional or vocational group or association or council of so many members of Seanad Éireann as may be fixed by such law in substitution for an equal number of the members to be elected from the corresponding panels of candidates constituted under Article 18 of this Constitution.
Legislation
Article 20 1 Every Bill initiated in and passed by Dáil Éireann shall be sent to Seanad Éireann and may, unless it be a Money Bill, be amended in Seanad Éireann and Dáil Éireann shall consider any such amendment. 2 1° A Bill other than a Money Bill may be initiated in Seanad Éireann, and if passed by Seanad Éireann, shall be introduced in Dáil Éireann. 2° A Bill initiated in Seanad Éireann if amended in Dáil Éireann shall be considered as a Bill initiated in Dáil Éireann. 3 A Bill passed by either House and accepted by the other House shall be deemed to have been passed by both Houses.
Money Bills
Article 21 1 1° Money Bills shall be initiated in Dáil Éireann only. 2° Every Money Bill passed by Dáil Éireann shall be sent to Seanad Éireann for its recommendations. 2 1° Every Money Bill sent to Seanad Éireann for its recommendations shall, at the expiration of a period not longer than twenty-one days after it shall have been sent to Seanad Éireann, be returned to Dáil Éireann, which may accept or reject all or any of the recommendations of Seanad Éireann. 2° If such Money Bill is not returned by Seanad Éireann to Dáil Éireann within such twenty-one days or is returned within such twenty-one days with recommendations which Dáil Éireann does not accept, it shall be deemed to have been passed by both Houses at the expiration of the said twenty-one days.
Article 22 1 1° A Money Bill means a Bill which contains only provisions dealing with all or any of the following matters, namely, the imposition, repeal, remission, alteration or regulation of taxation; the imposition for the payment of debt or other financial purposes of charges on public moneys or the variation or repeal of any such charges; supply; the appropriation, receipt, custody, issue or audit of accounts of public money; the raising or guarantee of any loan or the repayment thereof; matters subordinate and incidental to these matters or any of them. 2° In this definition the expressions “taxation”, “public money” and “loan” respectively do not include any taxation, money or loan raised by local authorities or bodies for local purposes. 2 1° The Chairman of Dáil Éireann shall certify any Bill which, in his opinion, is a Money Bill to be a Money Bill, and his certificate shall, subject to the subsequent provisions of this section, be final and conclusive. 2° Seanad Éireann, by a resolution, passed at a sitting at which not less than thirty members are present, may request the President to refer the question whether the Bill is or is not a Money Bill to a Committee of Privileges. 3° If the President after consultation with the Council of State decides to accede to the request he shall appoint a Committee of Privileges consisting of an equal number of members of Dáil Éireann and of Seanad Éireann and a Chairman who shall be a Judge of the Supreme Court: these appointments shall be made after consultation with the Council of State. In the case of an equality of votes but not otherwise the Chairman shall be entitled to vote. 4° The President shall refer the question to the Committee of Privileges so appointed and the Committee shall report its decision thereon to the President within twenty-one days after the day on which the Bill was sent to Seanad Éireann. 5° The decision of the Committee shall be final and conclusive. 6° If the President after consultation with the Council of State decides not to accede to the request of Seanad Éireann, or if the Committee of Privileges fails to report within the time hereinbefore specified the certificate of the Chairman of Dáil Éireann shall stand confirmed.
Time for Consideration of Bills
Article 23 1 This Article applies to every Bill passed by Dáil Éireann and sent to Seanad Éireann other than a Money Bill or a Bill the time for the consideration of which by Seanad Éireann shall have been abridged under Article 24 of this Constitution. 1° Whenever a Bill to which this Article applies is within the stated period defined in the next following sub-section either rejected by Seanad Éireann or passed by Seanad Éireann with amendments to which Dáil Éireann does not agree or is neither passed (with or without amendment) nor rejected by Seanad Éireann within the stated period, the Bill shall, if Dáil Éireann so resolves within one hundred and eighty days after the expiration of the stated period be deemed to have been passed by both Houses of the Oireachtas on the day on which the resolution is passed. 2° The stated period is the period of ninety days commencing on the day on which the Bill is first sent by Dáil Éireann to Seanad Éireann or any longer period agreed upon in respect of the Bill by both Houses of the Oireachtas. 2 1° The preceding section of this Article shall apply to a Bill which is initiated in and passed by Seanad Éireann, amended by Dáil Éireann, and accordingly deemed to have been initiated in Dáil Éireann. 2° For the purpose of this application the stated period shall in relation to such a Bill commence on the day on which the Bill is first sent to Seanad Éireann after having been amended by Dáil Éireann.
Article 24 1 If and whenever on the passage by Dáil Éireann of any Bill, other than a Bill expressed to be a Bill containing a proposal to amend the Constitution, the Taoiseach certifies by messages in writing addressed to the President and to the Chairman of each House of the Oireachtas that, in the opinion of the Government, the Bill is urgent and immediately necessary for the preservation of the public peace and security, or by reason of the existence of a public emergency, whether domestic or international, the time for the consideration of such Bill by Seanad Éireann shall, if Dáil Éireann so resolves and if the President, after consultation with the Council of State, concurs, be abridged to such period as shall be specified in the resolution. 2 Where a Bill, the time for the consideration of which by Seanad Éireann has been abridged under this Article, (a) is, in the case of a Bill which is not a Money Bill, rejected by Seanad Éireann or passed by Seanad Éireann with amendments to which Dáil Éireann does not agree or neither passed nor rejected by Seanad Éireann, or (b) is, in the case of a Money Bill, either returned by Seanad Éireann to Dáil Éireann with recommendations which Dáil Éireann does not accept or is not returned by Seanad Éireann to Dáil Éireann, within the period specified in the resolution, the Bill shall be deemed to have been passed by both Houses of the Oireachtas at the expiration of that period. 3 When a Bill the time for the consideration of which by Seanad Éireann has been abridged under this Article becomes law it shall remain in force for a period of ninety days from the date of its enactment and no longer unless, before the expiration of that period, both Houses shall have agreed that such law shall remain in force for a longer period and the longer period so agreed upon shall have been specified in resolutions passed by both Houses.
Signing and Promulgation of Laws
Article 25 1 As soon as any Bill, other than a Bill expressed to be a Bill containing a proposal for the amendment of this Constitution, shall have been passed or deemed to have been passed by both Houses of the Oireachtas, the Taoiseach shall present it to the President for his signature and for promulgation by him as a law in accordance with the provisions of this Article. 2 1° Save as otherwise provided by this Constitution, every Bill so presented to the President for his signature and for promulgation by him as a law shall be signed by the President not earlier than the fifth and not later than the seventh day after the date on which the Bill shall have been presented to him. 2° At the request of the Government, with the prior concurrence of Seanad Éireann, the President may sign any Bill the subject of such request on a date which is earlier than the fifth day after such date as aforesaid. 3 Every Bill the time for the consideration of which by Seanad Éireann shall have been abridged under Article 24 of this Constitution shall be signed by the President on the day on which such Bill is presented to him for signature and promulgation as a law. 4 1° Every Bill shall become and be law as on and from the day on which it is signed by the President under this Constitution, and shall, unless the contrary intention appears, come into operation on that day. 2° Every Bill signed by the President under this Constitution shall be promulgated by him as a law by the publication by his direction of a notice in the Iris Oifigiúil stating that the Bill has become law. 3° Every Bill shall be signed by the President in the text in which it was passed or deemed to have been passed by both Houses of the Oireachtas, and if a Bill is so passed or deemed to have been passed in both the official languages, the President shall sign the text of the Bill in each of those languages. 4° Where the President signs the text of a Bill in one only of the official languages, an official translation shall be issued in the other official language. 5° As soon as may be after the signature and promulgation of a Bill as a law, the text of such law which was signed by the President or, where the President has signed the text of such law in each of the official languages, both the signed texts shall be enrolled for record in the office of the Registrar of the Supreme Court, and the text, or both the texts, so enrolled shall be conclusive evidence of the provisions of such law. 6° In case of conflict between the texts of a law enrolled under this section in both the official languages, the text in the national language shall prevail. 5 1° It shall be lawful for the Taoiseach, from time to time as occasion appears to him to require, to cause to be prepared under his supervision a text (in both the official languages) of this Constitution as then in force embodying all amendments theretofore made therein. 2° A copy of every text so prepared, when authenticated by the signatures of the Taoiseach and the Chief Justice, shall be signed by the President and shall be enrolled for record in the office of the Registrar of the Supreme Court. 3° The copy so signed and enrolled which is for the time being the latest text so prepared shall, upon such enrolment, be conclusive evidence of this Constitution as at the date of such enrolment and shall for that purpose supersede all texts of this Constitution of which copies were so enrolled. 4° In case of conflict between the texts of any copy of this Constitution enrolled under this section, the text in the national language shall prevail.
Article 26
This Article applies to any Bill passed or deemed to have been passed by both Houses of the Oireachtas other than a Money Bill, or a Bill expressed to be a Bill containing a proposal to amend the Constitution, or a Bill the time for the consideration of which by Seanad Éireann shall have been abridged under Article 24 of this Constitution.
1° The President may, after consultation with the Council of State, refer any Bill to which this Article applies to the Supreme Court for a decision on the question as to whether such Bill or any specified provision or provisions of such Bill is or are repugnant to this Constitution or to any provision thereof. 2° Every such reference shall be made not later than the seventh day after the date on which such Bill shall have been presented by the Taoiseach to the President for his signature. 3° The President shall not sign any Bill the subject of a reference to the Supreme Court under this Article pending the pronouncement of the decision of the Court.
1° The Supreme Court consisting of not less than five judges shall consider every question referred to it by the President under this Article for a decision, and, having heard arguments by or on behalf of the Attorney General and by counsel assigned by the Court, shall pronounce its decision on such question in open court as soon as may be, and in any case not later than sixty days after the date of such reference. 2° The decision of the majority of the judges of the Supreme Court shall, for the purposes of this Article, be the decision of the Court and shall be pronounced by such one of those judges as the Court shall direct, and no other opinion, whether assenting or dissenting, shall be pronounced nor shall the existence of any such other opinion be disclosed.
1° In every case in which the Supreme Court decides that any provision of a Bill the subject of a reference to the Supreme Court under this Article is repugnant to this Constitution or to any provision thereof, the President shall decline to sign such Bill. 2° If, in the case of a Bill to which Article 27 of this Constitution applies, a petition has been addressed to the President under that Article, that Article shall be complied with. 3° In every other case the President shall sign the Bill as soon as may be after the date on which the decision of the Supreme Court shall have been pronounced.
Reference of Bills to the People
Article 27
This Article applies to any Bill, other than a Bill expressed to be a Bill containing a proposal for the amendment of this Constitution, which shall have been deemed, by virtue of Article 23 hereof, to have been passed by both Houses of the Oireachtas.
A majority of the members of Seanad Éireann and not less than one-third of the members of Dáil Éireann may by a joint petition addressed to the President by them under this Article request the President to decline to sign and promulgate as a law any Bill to which this article applies on the ground that the Bill contains a proposal of such national importance that the will of the people thereon ought to be ascertained.
Every such petition shall be in writing and shall be signed by the petitioners whose signatures shall be verified in the manner prescribed by law.
Every such petition shall contain a statement of the particular ground or grounds on which the request is based, and shall be presented to the President not later than four days after the date on which the Bill shall have been deemed to have been passed by both Houses of the Oireachtas.
1° Upon receipt of a petition addressed to him under this Article, the President shall forthwith consider such petition and shall, after consultation with the Council of State, pronounce his decision thereon not later than ten days after the date on which the Bill to which such petition relates shall have been deemed to have been passed by both Houses of the Oireachtas. 2° If the Bill or any provision thereof is or has been referred to the Supreme Court under Article 26 of this Constitution, it shall not be obligatory on the President to consider the petition unless or until the Supreme Court has pronounced a decision on such reference to the effect that the said Bill or the said provision thereof is not repugnant to this Constitution or to any provision thereof, and, if a decision to that effect is pronounced by the Supreme Court, it shall not be obligatory on the President to pronounce his decision on the petition before the expiration of six days after the day on which the decision of the Supreme Court to the effect aforesaid is pronounced.
1° In every case in which the President decides that a Bill the subject of a petition under this Article contains a proposal of such national importance that the will of the people thereon ought to be ascertained, he shall inform the Taoiseach and the Chairman of each House of the Oireachtas accordingly in writing under his hand and Seal and shall decline to sign and promulgate such Bill as a law unless and until the proposal shall have been approved either i by the people at a Referendum in accordance with the provisions of section 2 of Article 47 of this Constitution within a period of eighteen months from the date of the President’s decision, or ii by a resolution of Dáil Éireann passed within the said period after a dissolution and re-assembly of Dáil Éireann. 2° Whenever a proposal contained in a Bill the subject of a petition under this Article shall have been approved either by the people or by a resolution of Dáil Éireann in accordance with the foregoing provisions of this section, such Bill shall as soon as may be after such approval be presented to the President for his signature and promulgation by him as a law and the President shall thereupon sign the Bill and duly promulgate it as a law.
In every case in which the President decides that a Bill the subject of a petition under this Article does not contain a proposal of such national importance that the will of the people thereon ought to be ascertained, he shall inform the Taoiseach and the Chairman of each House of the Oireachtas accordingly in writing under his hand and Seal, and such Bill shall be signed by the President not later than eleven days after the date on which the Bill shall have been deemed to have been passed by both Houses of the Oireachtas and shall be duly promulgated by him as a law.
The Government
Article 28
The Government shall consist of not less than seven and not more than fifteen members who shall be appointed by the President in accordance with the provisions of this Constitution.
The executive power of the State shall, subject to the provisions of this Constitution, be exercised by or on the authority of the Government.
1° War shall not be declared and the State shall not participate in any war save with the assent of Dáil Éireann. 2° In the case of actual invasion, however, the Government may take whatever steps they may consider necessary for the protection of the State, and Dáil Éireann if not sitting shall be summoned to meet at the earliest practicable date. 3° Nothing in this Constitution other than Article 15.5.2° shall be invoked to invalidate any law enacted by the Oireachtas which is expressed to be for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion, or to nullify any act done or purporting to be done in time of war or armed rebellion in pursuance of any such law. In this sub-section “time of war” includes a time when there is taking place an armed conflict in which the State is not a participant but in respect of which each of the Houses of the Oireachtas shall have resolved that, arising out of such armed conflict, a national emergency exists affecting the vital interests of the State and “time of war or armed rebellion” includes such time after the termination of any war, or of any such armed conflict as aforesaid, or of an armed rebellion, as may elapse until each of the Houses of the Oireachtas shall have resolved that the national emergency occasioned by such war, armed conflict, or armed rebellion has ceased to exist.
1° The Government shall be responsible to Dáil Éireann. 2° The Government shall meet and act as a collective authority, and shall be collectively responsible for the Departments of State administered by the members of the Government. 3° The confidentiality of discussions at meetings of the Government shall be respected in all circumstances save only where the High Court determines that disclosure should be made in respect of a particular matter – i in the interests of the administration of justice by a Court, or ii by virtue of an overriding public interest, pursuant to an application in that behalf by a tribunal appointed by the Government or a Minister of the Government on the authority of the Houses of the Oireachtas to inquire into a matter stated by them to be of public importance. 4° The Government shall prepare Estimates of the Receipts and Estimates of the Expenditure of the State for each financial year, and shall present them to Dáil Éireann for consideration.
1° The head of the Government, or Prime Minister, shall be called, and is in this Constitution referred to as, the Taoiseach. 2° The Taoiseach shall keep the President generally informed on matters of domestic and international policy.
1° The Taoiseach shall nominate a member of the Government to be the Tánaiste. 2° The Tánaiste shall act for all purposes in the place of the Taoiseach if the Taoiseach should die, or become permanently incapacitated, until a new Taoiseach shall have been appointed. 3° The Tánaiste shall also act for or in the place of the Taoiseach during the temporary absence of the Taoiseach.
1° The Taoiseach, the Tánaiste and the member of the Government who is in charge of the Department of Finance must be members of Dáil Éireann. 2° The other members of the Government must be members of Dáil Éireann or Seanad Éireann, but not more than two may be members of Seanad Éireann.
Every member of the Government shall have the right to attend and be heard in each House of the Oireachtas.
1° The Taoiseach may resign from office at any time by placing his resignation in the hands of the President. 2° Any other member of the Government may resign from office by placing his resignation in the hands of the Taoiseach for submission to the President. 3° The President shall accept the resignation of a member of the Government, other than the Taoiseach, if so advised by the Taoiseach. 4° The Taoiseach may at any time, for reasons which to him seem sufficient, request a member of the Government to resign; should the member concerned fail to comply with the request, his appointment shall be terminated by the President if the Taoiseach so advises.
The Taoiseach shall resign from office upon his ceasing to retain the support of a majority in Dáil Éireann unless on his advice the President dissolves Dáil Éireann and on the reassembly of Dáil Éireann after the dissolution the Taoiseach secures the support of a majority in Dáil Éireann.
1° If the Taoiseach at any time resigns from office the other members of the Government shall be deemed also to have resigned from office, but the Taoiseach and the other members of the Government shall continue to carry on their duties until their successors shall have been appointed. 2° The members of the Government in office at the date of a dissolution of Dáil Éireann shall continue to hold office until their successors shall have been appointed.
The following matters shall be regulated in accordance with law, namely, the organization of, and distribution of business amongst, Departments of State, the designation of members of the Government to be the Ministers in charge of the said Departments, the discharge of the functions of the office of a member of the Government during his temporary absence or incapacity, and the remuneration of the members of the Government.
Local Government
Article 28A
The State recognises the role of local government in providing a forum for the democratic representation of local communities, in exercising and performing at local level powers and functions conferred by law and in promoting by its initiatives the interests of such communities.
There shall be such directly elected local authorities as may be determined by law and their powers and functions shall, subject to the provisions of this Constitution, be so determined and shall be exercised and performed in accordance with law.
Elections for members of such local authorities shall be held in accordance with law not later than the end of the fifth year after the year in which they were last held.
Every citizen who has the right to vote at an election for members of Dáil Éireann and such other persons as may be determined by law shall have the right to vote at an election for members of such of the local authorities referred to in section 2 of this Article as shall be determined by law.
Casual vacancies in the membership of local authorities referred to in section 2 of this Article shall be filled in accordance with law.
International Relations
Article 29
Ireland affirms its devotion to the ideal of peace and friendly co-operation amongst nations founded on international justice and morality.
Ireland affirms its adherence to the principle of the pacific settlement of international disputes by international arbitration or judicial determination.
Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other States.
1° The executive power of the State in or in connection with its external relations shall in accordance with Article 28 of this Constitution be exercised by or on the authority of the Government. 2° For the purpose of the exercise of any executive function of the State in or in connection with its external relations, the Government may to such extent and subject to such conditions, if any, as may be determined by law, avail of or adopt any organ, instrument, or method of procedure used or adopted for the like purpose by the members of any group or league of nations with which the State is or becomes associated for the purpose of international co-operation in matters of common concern. 3° The State may become a member of the European Atomic Energy Community (established by Treaty signed at Rome on the 25th day of March, 1957). 4° Ireland affirms its commitment to the European Union within which the member states of that Union work together to promote peace, shared values and the well-being of their peoples. 5° The State may ratify the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon on the 13th day of December 2007 (“Treaty of Lisbon”), and may be a member of the European Union established by virtue of that Treaty. 6° No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State, before, on or after the entry into force of the Treaty of Lisbon, that are necessitated by the obligations of membership of the European Union referred to in subsection 5° of this section or of the European Atomic Energy Community, or prevents laws enacted, acts done or measures adopted by— i the said European Union or the European Atomic Energy Community, or institutions thereof, ii the European Communities or European Union existing immediately before the entry into force of the Treaty of Lisbon, or institutions thereof, or iii bodies competent under the treaties referred to in this section, from having the force of law in the State. 7° State may exercise the options or discretions— i to which Article 20 of the Treaty on European Union relating to enhanced cooperation applies, ii under Protocol No. 19 on the Schengen acquis integrated into the framework of the European Union annexed to that treaty and to the Treaty on the Functioning of the European Union (formerly known as the Treaty establishing the European Community), and iii under Protocol No. 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, so annexed, including the option that the said Protocol No. 21 shall, in whole or in part, cease to apply to the State, but any such exercise shall be subject to the prior approval of both Houses of the Oireachtas. 8° The State may agree to the decisions, regulations or other acts— i under the Treaty on European Union and the Treaty on the Functioning of the European Union authorising the Council of the European Union to act other than by unanimity, ii under those treaties authorising the adoption of the ordinary legislative procedure, and iii under subparagraph (d) of Article 82.2, the third subparagraph of Article 83.1 and paragraphs 1 and 4 of Article 86 of the Treaty on the Functioning of the European Union, relating to the area of freedom, security and justice, but the agreement to any such decision, regulation or act shall be subject to the prior approval of both Houses of the Oireachtas. 9° The State shall not adopt a decision taken by the European Council to establish a common defence pursuant to Article 42 of the Treaty on European Union where that common defence would include the State.
1° Every international agreement to which the State becomes a party shall be laid before Dáil Éireann. 2° The State shall not be bound by any international agreement involving a charge upon public funds unless the terms of the agreement shall have been approved by Dáil Éireann. 3° This section shall not apply to agreements or conventions of a technical and administrative character.
No international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas.
1° The State may consent to be bound by the British-Irish Agreement done at Belfast on the 10th day of April, 1998, hereinafter called the Agreement. 2° Any institution established by or under the Agreement may exercise the powers and functions thereby conferred on it in respect of all or any part of the island of Ireland notwithstanding any other provision of this Constitution conferring a like power or function on any person or any organ of State appointed under or created or established by or under this Constitution. Any power or function conferred on such an institution in relation to the settlement or resolution of disputes or controversies may be in addition to or in substitution for any like power or function conferred by this Constitution on any such person or organ of State as aforesaid.
The State may exercise extra-territorial jurisdiction in accordance with the generally recognised principles of international law.
The State may ratify the Rome Statute of the International Criminal Court done at Rome on the 17th day of July, 1998.
The State may ratify the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union done at Brussels on the 2nd day of March 2012. No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State that are necessitated by the obligations of the State under that Treaty or prevents laws enacted, acts done or measures adopted by bodies competent under that Treaty from having the force of law in the State.
The Attorney General
Article 30
There shall be an Attorney General who shall be the adviser of the Government in matters of law and legal opinion, and shall exercise and perform all such powers, functions and duties as are conferred or imposed on him by this Constitution or by law.
The Attorney General shall be appointed by the President on the nomination of the Taoiseach.
All crimes and offences prosecuted in any court constituted under Article 34 of this Constitution other than a court of summary jurisdiction shall be prosecuted in the name of the People and at the suit of the Attorney General or some other person authorised in accordance with law to act for that purpose.
The Attorney General shall not be a member of the Government.
1° The Attorney General may at any time resign from office by placing his resignation in the hands of the Taoiseach for submission to the President. 2° The Taoiseach may, for reasons which to him seem sufficient, request the resignation of the Attorney General. 3° In the event of failure to comply with the request, the appointment of the Attorney General shall be terminated by the President if the Taoiseach so advises. 4° The Attorney General shall retire from office upon the resignation of the Taoiseach, but may continue to carry on his duties until the successor to the Taoiseach shall have been appointed.
Subject to the foregoing provisions of this Article, the office of Attorney General, including the remuneration to be paid to the holder of the office, shall be regulated by law.
The Council of State
Article 31
There shall be a Council of State to aid and counsel the President on all matters on which the President may consult the said Council in relation to the exercise and performance by him of such of his powers and functions as are by this Constitution expressed to be exercisable and performable after consultation with the Council of State, and to exercise such other functions as are conferred on the said Council by this Constitution.
The Council of State shall consist of the following members: i As ex-officio members: the Taoiseach, the Tánaiste, the Chief Justice, the President of the High Court, the Chairman of Dáil Éireann, the Chairman of Seanad Éireann, and the Attorney General. ii Every person able and willing to act as a member of the Council of State who shall have held the office of President, or the office of Taoiseach, or the office of Chief Justice, or the office of President of the Executive Council of Saorstát Éireann. iii Such other persons, if any, as may be appointed by the President under this Article to be members of the Council of State.
The President may at any time and from time to time by warrant under his hand and Seal appoint such other persons as, in his absolute discretion, he may think fit, to be members of the Council of State, but not more than seven persons so appointed shall be members of the Council of State at the same time.
Every member of the Council of State shall at the first meeting thereof which he attends as a member take and subscribe a declaration in the following form: “In the presence of Almighty God I do solemnly and sincerely promise and declare that I will faithfully and conscientiously fulfil my duties as a member of the Council of State.”
Every member of the Council of State appointed by the President, unless he previously dies, resigns, becomes permanently incapacitated, or is removed from office, shall hold office until the successor of the President by whom he was appointed shall have entered upon his office.
Any member of the Council of State appointed by the President may resign from office by placing his resignation in the hands of the President.
The President may, for reasons which to him seem sufficient, by an order under his hand and Seal, terminate the appointment of any member of the Council of State appointed by him.
Meetings of the Council of State may be convened by the President at such times and places as he shall determine.
Article 32
The President shall not exercise or perform any of the powers or functions which are by this Constitution expressed to be exercisable or performable by him after consultation with the Council of State unless, and on every occasion before so doing, he shall have convened a meeting of the Council of State and the members present at such meeting shall have been heard by him.
The Comptroller and Auditor General
Article 33
There shall be a Comptroller and Auditor General to control on behalf of the State all disbursements and to audit all accounts of moneys administered by or under the authority of the Oireachtas.
The Comptroller and Auditor General shall be appointed by the President on the nomination of Dáil Éireann.
The Comptroller and Auditor General shall not be a member of either House of the Oireachtas and shall not hold any other office or position of emolument.
The Comptroller and Auditor General shall report to Dáil Éireann at stated periods as determined by law.
1° The Comptroller and Auditor General shall not be removed from office except for stated misbehaviour or incapacity, and then only upon resolutions passed by Dáil Éireann and by Seanad Éireann calling for his removal. 2° The Taoiseach shall duly notify the President of any such resolutions as aforesaid passed by Dáil Éireann and by Seanad Éireann and shall send him a copy of each such resolution certified by the Chairman of the House of the Oireachtas by which it shall have been passed. 3° Upon receipt of such notification and of copies of such resolutions, the President shall forthwith, by an order under his hand and Seal, remove the Comptroller and Auditor General from office.
Subject to the foregoing, the terms and conditions of the office of Comptroller and Auditor General shall be determined by law.
The Courts
Article 34
Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.
The Courts shall comprise Courts of First Instance and a Court of Final Appeal.
1° The Courts of First Instance shall include a High Court invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal. 2° Save as otherwise provided by this Article, the jurisdiction of the High Court shall extend to the question of the validity of any law having regard to the provisions of this Constitution, and no such question shall be raised (whether by pleading, argument or otherwise) in any Court established under this or any other Article of this Constitution other than the High Court or the Supreme Court. 3° No Court whatever shall have jurisdiction to question the validity of a law, or any provision of a law, the Bill for which shall have been referred to the Supreme Court by the President under Article 26 of this Constitution, or to question the validity of a provision of a law where the corresponding provision in the Bill for such law shall have been referred to the Supreme Court by the President under the said Article 26. 4° The Courts of First Instance shall also include Courts of local and limited jurisdiction with a right of appeal as determined by law.
1° The Court of Final Appeal shall be called the Supreme Court. 2° The president of the Supreme Court shall be called the Chief Justice. 3° The Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law. 4° No law shall be enacted excepting from the appellate jurisdiction of the Supreme Court cases which involve questions as to the validity of any law having regard to the provisions of this Constitution. 5° The decision of the Supreme Court on a question as to the validity of a law having regard to the provisions of this Constitution shall be pronounced by such one of the judges of that Court as that Court shall direct, and no other opinion on such question, whether assenting or dissenting, shall be pronounced, nor shall the existence of any such other opinion be disclosed. 6° The decision of the Supreme Court shall in all cases be final and conclusive.
1° Every person appointed a judge under this Constitution shall make and subscribe the following declaration: “In the presence of Almighty God I do solemnly and sincerely promise and declare that I will duly and faithfully and to the best of my knowledge and power execute the office of Chief Justice (or as the case may be) without fear or favour, affection or ill-will towards any man, and that I will uphold the Constitution and the laws. May God direct and sustain me.” 2° This declaration shall be made and subscribed by the Chief Justice in the presence of the President, and by each of the other judges of the Supreme Court, the judges of the High Court and the judges of every other Court in the presence of the Chief Justice or the senior available judge of the Supreme Court in open court. 3° The declaration shall be made and subscribed by every judge before entering upon his duties as such judge, and in any case not later than ten days after the date of his appointment or such later date as may be determined by the President. 4° Any judge who declines or neglects to make such declaration as aforesaid shall be deemed to have vacated his office.
Article 35
The judges of the Supreme Court, the High Court and all other Courts established in pursuance of Article 34 hereof shall be appointed by the President.
All judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law.
No judge shall be eligible to be a member of either House of the Oireachtas or to hold any other office or position of emolument.
1° A judge of the Supreme Court or the High Court shall not be removed from office except for stated misbehaviour or incapacity, and then only upon resolutions passed by Dáil Éireann and by Seanad Éireann calling for his removal. 2° The Taoiseach shall duly notify the President of any such resolutions passed by Dáil Éireann and by Seanad Éireann, and shall send him a copy of every such resolution certified by the Chairman of the House of the Oireachtas by which it shall have been passed. 3° Upon receipt of such notification and of copies of such resolutions, the President shall forthwith, by an order under his hand and Seal, remove from office the judge to whom they relate.
1° The remuneration of judges shall not be reduced during their continuance in office save in accordance with this section. 2° The remuneration of judges is subject to the imposition of taxes, levies or other charges that are imposed by law on persons generally or persons belonging to a particular class. 3° Where, before or after the enactment of this section, reductions have been or are made by law to the remuneration of persons belonging to classes of persons whose remuneration is paid out of public money and such law states that those reductions are in the public interest, provision may also be made by law to make proportionate reductions to the remuneration of judges.
Article 36
Subject to the foregoing provisions of this Constitution relating to the Courts, the following matters shall be regulated in accordance with law, that is to say:– i the number of judges of the Supreme Court, and of the High Court, the remuneration, age of retirement and pensions of such judges, ii the number of the judges of all other Courts, and their terms of appointment, and iii the constitution and organization of the said Courts, the distribution of jurisdiction and business among the said Courts and judges, and all matters of procedure.
Article 37
Nothing in this Constitution shall operate to invalidate the exercise of limited functions and powers of a judicial nature, in matters other than criminal matters, by any person or body of persons duly authorised by law to exercise such functions and powers, notwithstanding that such person or such body of persons is not a judge or a court appointed or established as such under this Constitution.
No adoption of a person taking effect or expressed to take effect at any time after the coming into operation of this Constitution under laws enacted by the Oireachtas and being an adoption pursuant to an order made or an authorisation given by any person or body of persons designated by those laws to exercise such functions and powers was or shall be invalid by reason only of the fact that such person or body of persons was not a judge or a court appointed or established as such under this Constitution.
Trial of Offences
Article 38
No person shall be tried on any criminal charge save in due course of law.
Minor offences may be tried by courts of summary jurisdiction.
1° 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. 2° The constitution, powers, jurisdiction and procedure of such special courts shall be prescribed by law.
1° Military tribunals may be established for the trial of offences against military law alleged to have been committed by persons while subject to military law and also to deal with a state of war or armed rebellion. 2° A member of the Defence Forces not on active service shall not be tried by any courtmartial or other military tribunal for an offence cognisable by the civil courts unless such offence is within the jurisdiction of any courtmartial or other military tribunal under any law for the enforcement of military discipline.
Save in the case of the trial of offences under section 2, section 3 or section 4 of this Article no person shall be tried on any criminal charge without a jury.
The provisions of Articles 34 and 35 of this Constitution shall not apply to any court or tribunal set up under section 3 or section 4 of this Article.
Article 39
Treason shall consist only in levying war against the State, or assisting any State or person or inciting or conspiring with any person to levy war against the State, or attempting by force of arms or other violent means to overthrow the organs of government established by this Constitution, or taking part or being concerned in or inciting or conspiring with any person to make or to take part or be concerned in any such attempt.
Fundamental Rights
Personal Rights
Article 40
All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.
1° Titles of nobility shall not be conferred by the State. 2° No title of nobility or of honour may be accepted by any citizen except with the prior approval of the Government.
1° The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen. 2° The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen. 3° The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right. This subsection shall not limit freedom to travel between the State and another state. This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state.
1° No citizen shall be deprived of his personal liberty save in accordance with law. 2° Upon complaint being made by or on behalf of any person to the High Court or any judge thereof alleging that such person is being unlawfully detained, the High Court and any and every judge thereof to whom such complaint is made shall forthwith enquire into the said complaint and may order the person in whose custody such person is detained to produce the body of such person before the High Court on a named day and to certify in writing the grounds of his detention, and the High Court shall, upon the body of such person being produced before that Court and after giving the person in whose custody he is detained an opportunity of justifying the detention, order the release of such person from such detention unless satisfied that he is being detained in accordance with the law. 3° Where the body of a person alleged to be unlawfully detained is produced before the High Court in pursuance of an order in that behalf made under this section and that Court is satisfied that such person is being detained in accordance with a law but that such law is invalid having regard to the provisions of this Constitution, the High Court shall refer the question of the validity of such law to the Supreme Court by way of case stated and may, at the time of such reference or at any time thereafter, allow the said person to be at liberty on such bail and subject to such conditions as the High Court shall fix until the Supreme Court has determined the question so referred to it. 4° The High Court before which the body of a person alleged to be unlawfully detained is to be produced in pursuance of an order in that behalf made under this section shall, if the President of the High Court or, if he is not available, the senior judge of that Court who is available so directs in respect of any particular case, consist of three judges and shall, in every other case, consist of one judge only. 5° Nothing in this section, however, shall be invoked to prohibit, control, or interfere with any act of the Defence Forces during the existence of a state of war or armed rebellion. 6° Provision may be made by law for the refusal of bail by a court to a person charged with a serious offence where it is reasonably considered necessary to prevent the commission of a serious offence by that person.
The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.
1° The State guarantees liberty for the exercise of the following rights, subject to public order and morality: – i The right of the citizens to express freely their convictions and opinions. The education of public opinion being, however, a matter of such grave import to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State. The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law. ii The right of the citizens to assemble peaceably and without arms. Provision may be made by law to prevent or control meetings which are determined in accordance with law to be calculated to cause a breach of the peace or to be a danger or nuisance to the general public and to prevent or control meetings in the vicinity of either House of the Oireachtas. iii The right of the citizens to form associations and unions. Laws, however, may be enacted for the regulation and control in the public interest of the exercise of the foregoing right. 2° Laws regulating the manner in which the right of forming associations and unions and the right of free assembly may be exercised shall contain no political, religious or class discrimination.
The Family
Article 41
1° The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law. 2° The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.
1° In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved. 2° The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.
1° The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack. 2° A Court designated by law may grant a dissolution of marriage where, but only where, it is satisfied that – i at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years, ii there is no reasonable prospect of a reconciliation between the spouses, iii such provision as the Court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law, and iv any further conditions prescribed by law are complied with. 3° No person whose marriage has been dissolved under the civil law of any other State but is a subsisting valid marriage under the law for the time being in force within the jurisdiction of the Government and Parliament established by this Constitution shall be capable of contracting a valid marriage within that jurisdiction during the lifetime of the other party to the marriage so dissolved.
Education
Article 42
The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.
Parents shall be free to provide this education in their homes or in private schools or in schools recognised or established by the State.
1° The State shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State, or to any particular type of school designated by the State. 2° The State shall, however, as guardian of the common good, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social.
The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation.
In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.
Private Property
Article 43
1° The State acknowledges that man, in virtue of his rational being, has the natural right, antecedent to positive law, to the private ownership of external goods. 2° The State accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath, and inherit property.
1° The State recognises, however, that the exercise of the rights mentioned in the foregoing provisions of this Article ought, in civil society, to be regulated by the principles of social justice. 2° The State, accordingly, may as occasion requires delimit by law the exercise of the said rights with a view to reconciling their exercise with the exigencies of the common good.
Religion
Article 44
The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion.
1° Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen. 2° The State guarantees not to endow any religion. 3° The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status. 4° Legislation providing State aid for schools shall not discriminate between schools under the management of different religious denominations, nor be such as to affect prejudicially the right of any child to attend a school receiving public money without attending religious instruction at that school. 5° Every religious denomination shall have the right to manage its own affairs, own, acquire and administer property, movable and immovable, and maintain institutions for religious or charitable purposes. 6° The property of any religious denomination or any educational institution shall not be diverted save for necessary works of public utility and on payment of compensation.
Directive Principles of Social Policy
Article 45
The principles of social policy set forth in this Article are intended for the general guidance of the Oireachtas. The application of those principles in the making of laws shall be the care of the Oireachtas exclusively, and shall not be cognisable by any Court under any of the provisions of this Constitution.
The State shall strive to promote the welfare of the whole people by securing and protecting as effectively as it may a social order in which justice and charity shall inform all the institutions of the national life.
The State shall, in particular, direct its policy towards securing:– i That the citizens (all of whom, men and women equally, have the right to an adequate means of livelihood) may through their occupations find the means of making reasonable provision for their domestic needs. ii That the ownership and control of the material resources of the community may be so distributed amongst private individuals and the various classes as best to subserve the common good. iii That, especially, the operation of free competition shall not be allowed so to develop as to result in the concentration of the ownership or control of essential commodities in a few individuals to the common detriment. iv That in what pertains to the control of credit the constant and predominant aim shall be the welfare of the people as a whole. v That there may be established on the land in economic security as many families as in the circumstances shall be practicable.
1° The State shall favour and, where necessary, supplement private initiative in industry and commerce. 2° The State shall endeavour to secure that private enterprise shall be so conducted as to ensure reasonable efficiency in the production and distribution of goods and as to protect the public against unjust exploitation.
1° The State pledges itself to safeguard with especial care the economic interests of the weaker sections of the community, and, where necessary, to contribute to the support of the infirm, the widow, the orphan, and the aged. 2° The State shall endeavour to ensure that the strength and health of workers, men and women, and the tender age of children shall not be abused and that citizens shall not be forced by economic necessity to enter avocations unsuited to their sex, age or strength.
Amendment of the Constitution
Article 46
Any provision of this Constitution may be amended, whether by way of variation, addition, or repeal, in the manner provided by this Article.
Every proposal for an amendment of this Constitution shall be initiated in Dáil Éireann as a Bill, and shall upon having been passed or deemed to have been passed by both Houses of the Oireachtas, be submitted by Referendum to the decision of the people in accordance with the law for the time being in force relating to the Referendum.
Every such Bill shall be expressed to be “An Act to amend the Constitution”.
A Bill containing a proposal or proposals for the amendment of this Constitution shall not contain any other proposal.
A Bill containing a proposal for the amendment of this Constitution shall be signed by the President forthwith upon his being satisfied that the provisions of this Article have been complied with in respect thereof and that such proposal has been duly approved by the people in accordance with the provisions of section 1 of Article 47 of this Constitution and shall be duly promulgated by the President as a law.
The Referendum
Article 47
Every proposal for an amendment of this Constitution which is submitted by Referendum to the decision of the people shall, for the purpose of Article 46 of this Constitution, be held to have been approved by the people, if, upon having been so submitted, a majority of the votes cast at such Referendum shall have been cast in favour of its enactment into law.
1° Every proposal, other than a proposal to amend the Constitution, which is submitted by Referendum to the decision of the people shall be held to have been vetoed by the people if a majority of the votes cast at such Referendum shall have been cast against its enactment into law and if the votes so cast against its enactment into law shall have amounted to not less than thirty-three and one-third per cent. of the voters on the register. 2° Every proposal, other than a proposal to amend the Constitution, which is submitted by Referendum to the decision of the people shall for the purposes of Article 27 hereof be held to have been approved by the people unless vetoed by them in accordance with the provisions of the foregoing sub-section of this section.
Every citizen who has the right to vote at an election for members of Dáil Éireann shall have the right to vote at a Referendum.
Subject as aforesaid, the Referendum shall be regulated by law.
Repeal of Constitution of Saorstát Éireann and Continuance of Laws
Article 48
The Constitution of Saorstát Éireann in force immediately prior to the date of the coming into operation of this Constitution and the Constitution of the Irish Free State (Saorstát Éireann) Act, 1922, in so far as that Act or any provision thereof is then in force shall be and are hereby repealed as on and from that date.
Article 49
All powers, functions, rights and prerogatives whatsoever exercisable in or in respect of Saorstát Éireann immediately before the 11th day of December, 1936, whether in virtue of the Constitution then in force or otherwise, by the authority in which the executive power of Saorstát Éireann was then vested are hereby declared to belong to the people.
It is hereby enacted that, save to the extent to which provision is made by this Constitution or may hereafter be made by law for the exercise of any such power, function, right or prerogative by any of the organs established by this Constitution, the said powers, functions, rights and prerogatives shall not be exercised or be capable of being exercised in or in respect of the State save only by or on the authority of the Government.
The Government shall be the successors of the Government of Saorstát Éireann as regards all property, assets, rights and liabilities.
Article 50
Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in Saorstát Éireann immediately prior to 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 shall have been repealed or amended by enactment of the Oireachtas.
Laws enacted before, but expressed to come into force after, the coming into operation of this Constitution, shall, unless otherwise enacted by the Oireachtas, come into force in accordance with the terms thereof.
Cast your minds back to 2001 and the first Nice Treaty referendum. Ireland held a unique position in that it required a referendum in order for it to pass legal requirements; unique in the sense that the rest of the rest of European citizenry were being denied a vote on the matter: A lot of europeans closely observed the referendum because failure to be ratified would scupper the deal for everyone. The government was confident, there were smiles & premature handshakes as it was considered a done-deal given how pro european we all were at the time.
The first Nice Treaty referendum in June 2001 was defeated (by 54% to 46%). A core issue in the “No” campaign was militarisation—specifically, fears that the treaty’s provisions for enhanced EU cooperation in security and defence would undermine Irish neutrality and could lead to conscription or entanglement in a “European army.”
The result of the referendum was announced, Panic hit Dublin and Brussels. The smiles vanished; replaced with distraught faces, The air of confindences became a tangled web of excuses and explanations. They were wrong! the people were not on board, they had no mandate form the people. To secure a ‘Yes’ vote, they produced the Seville Declaration (2002)—a “solemn” guarantee that Irish neutrality was untouched. The treaty, they swore, “did not prejudice” our defence policy. With that fig leaf, and a huge campaign of further assurances and veiled threats, the second referendum in October 2002 passed., I refused to vote in the 2nd referendum & haven’t since, how are we supposed to take that seriously? if ye don’t vote the way i want you to, i’ll make ye do it again, as transparent as our “don’t like social/political change? just form another coalition” system of governance.
Below is a list outlining the depth of Dublin & Brussels Solemn assurances…..
1, European Defence Agency (EDA) Framework Participation – Formal participation from its establishment in 2004.
2. EU Battlegroups Framework – First Irish contribution to an EU Battlegroup in 2006.
3. Treaty of Lisbon – Ratified 2009 (Solidified EU mutual defence clause – Article 42.7 TEU, and enhanced PESCO framework).
4. UK-Ireland Memorandum of Understanding on Defence Cooperation – Signed 2015 (Updated 2023)
5. NATO Partnership for Peace (PfP) Planning and Review Process (PARP) – Continuous, but deepened formal participation in capability alignment from 2015 onward.
6. Permanent Structured Cooperation (PESCO) – Ireland joined at its launch, ratified participation 2017.
7. EU Cyber Defence Policy Framework & Participation in NATO Cooperative Cyber Defence Centre of Excellence – Formal participation from 2018.
8. Participation in EU Military Missions (e.g., EUTM Mali, EUCAP Sahel Mali, EU NAVFOR Atalanta) – Various ratifications via Dáil motions 2008–Present.
9. EU Strategic Compass – Approved 2022 (Ireland aligned, though not a separate ratification).
all of this against the obvious wishes of the irish people, how many of you were aware this was even happening?
I think that in the minds of many of us , the EU has unmasked itself, Von der leyen & kallas are openly war mongering, if only to mask the EU’s incompetence to prevent the war ever happening,the EU was essentially a very visible by-stander at that time. We all heard Victoria Nuland proclaim “Fuck the EU” this was just another US coup/govt change in order to irritate/weaken the Russians (widely stated & accepted), it would be reasonable to assume the EU had very little to do with this, weren’t informed, so rather than lose face, To avoid looking obsolete & clueless to the rest of the world, the europeans decided to adopt the resulting chaos as its own crusade to save face. i had been following the war in Donbass thanks to a very brave British journalist, Graham Phillips, i believe he’s on some terrorist list in Britain now because his 2014 reporting is incompatible with 2022 British propaganda.
So with the militirisation of von der leyens 4th reich (so fitting she has a thick german accent, it really just puts a bow on things for me) going on in the background where is the opposition, the Dail debates, the reassurances to honour their “solemn declaration” to the people of Ireland? where is the objections to the war they’re currently & very publicly planning, a war started as a result of very public US interference. Ukraine lost it’s sovereignty in 2014, If Victoria Nuland arbitrarily choosing its leader on a casual phone call doesn’t convince you,you lack even a glimmer of deductive reasoning.
Irish fears of future Militairisation have been realised, the people were correct, Europe is openly goose-stepping into war,A few weeks ago we had to suffer the amazing ignorance of Kaja Kallas, who lectured us that Ireland had had it too easy for too long. 800 years under the gentle embrace of the Brits? I won’t waste my breath listing the reasons that’s the most historically illiterate statement ever uttered by an EU leader. In fairness she’s not out of place she fits perfectly among that gaggle of gobshites in the Commission.
What if this war actually starts?, how would Ireland react? I spent 21 years in the Defence Forces’s & nothing i say here is to disparage my comrades retired or serving, but the Irish army is a joke. It’s not our fault, we all tried our best; the worst of us probably gave more than the state deserved, as an institution it is completely irredeemable. The history of the institution would be comical if it weren’t so true, The first thing you should know is that the Dept of Defence & the Defence forces were on opposing sides during the war of independence, it’s not often spoken about & the state can never forgive the DF’s for it, there’s a long history of contempt for the working class troops, troops returning from Congo had to endure being outcasts in order to save the department heads/politicians, let us not forget the Lariam scandal whereby the Dept of Defence forced Troops to take a drug known to have serious psychological side effects ;at the same time making a conscious decision to prescribe a safer alternative to their officers, there are many more scandals that will have their day in the sunlight. So structurally we have nothing to build on, if war happens what few Irish troops exist will be turned over to British formations, mostly because it’s an easy fix & when things inevitably go wrong they can blame the brits.
Interestingly i did read somewhere a long time ago that Irish Neuatrality was created by Mi6 because it couldn’t defend Ireland during WW2, i’ve looked into this & can find no mention of Neutrality prior to WW2, it doesn’t exist as an official policy or legislation that we could point to, not enshrined in a constitution, all we have are the restrictions in the treaty to ensure we couldn’t defend ourselves, is that Neutrality?
To be clear when i’m talking about the civil service (talking about the civil service is taboo), i’m talking about the higher echelons, those with generations of family history, those bred to take the reigns from their parents; ye know…… Civil service Nepo-babies.
The Truth is that Britain was never going to accept a militirised Ireland next door; the west brits that run the state trust us even less, We are & will remain the old enemy; Our Buttons & cap badge are old IRA insignia, we wear it with pride. We don’t share history with the Department, they were on the other side. in all my years in the DF’s we were employed in an ATCP (aid to the civil power)role; we weren’t equipped or trained to defend the Island, we were specifically employed as a sort of Internal security force, in theory we were the immediate armed responce to insurrection etc The problem was that the Department feared that in a real situation we might have turned on them, I believe they were right, if they had ever put us in the position between our neighbours & them, it wouldn’t have gone well for them.
The old colonial institutions can’t wait to return us to the British embrace but they risk yet another rebellion, why would they arm & organise us for what they fear may be inevitable, in fact an announcement that Irish troops are to be added to British formations would also spark revolt, Ireland is not free or sovereign, we are held in flux, under the surface the old war is still raging in the minds of the old colonial boys.
The next time it feels like the government hates you & are not acting in our best interests, The next time they betray a “solemn” assurance ,remember, they have a different agenda, they were on the other side!
So No, don’t expect Ireland’s army to enlarge any time soon, don’ t expect air defence, or strike weapons; We aren’t trusted!
CronyIsland 