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!
When the Irish media and establishment call someone “far right,” they aren’t describing ideology. They are using a term that political scientists themselves admit is often just a way to “disqualify and stigmatize all forms of partisan nationalism.” In other words: it’s a smear, a Psy-op. And in Ireland, it’s being deployed by the same colonial class that has been smearing Irish resistance for centuries.
I’m around longer than the internet. I already knew the history of the far right in Europe, and I already saw what the Irish establishment was doing—throwing around a baseless label to stigmatise anyone who dared to challenge their rule. Most Irish people recognise this. We laugh when the term is used, because it’s so obvious, so ridiculous.
If we ignore the political ad hominems and simply look at actions, it is the establishment’s own actions that fit the historical definition of the far right. They are projecting. They are the ones attacking the status quo with radical ideology. They are the ones threatening violence—through courts and gardaí—to censor speech in one way or compel it in another.
Who are these people? They are the class who ran Britain’s colonial administration in Ireland. They have only contempt for our historical heroes like Pearse and Collins. For the most part, they were the only educated people in Ireland. If you’ve ever heard of hedge schools, you’ll know the British made education illegal for the Irish. Trinity and UCD didn’t lose any students to the Famine. While the country was devastated, those institutions were untouched and unmoved. By the law of the time, these people were not even considered Irish—they wouldn’t have been let in the door.
EPIC LIES–
A UCD Lecturer Rewrites History
Recently I watched a lecturer from University College Dublin stand in front of the Epic Museum and tell tourists that the Irish nation was complicit in British slavery in the Caribbean. Her evidence: a single British Colonial settler who owned slaves in the 1600s. A man who’d be turning in his grave at the thought of being describe as Irish!
She omitted the ethnic cleansing happening in Ireland at that same time. She omitted that Cromwell was shipping Irish men, women, and children to the Caribbean as property. She omitted that when Irish prisoners had children with Africans, those children were born into slavery—a fact recent DNA confirms.
This is what tourists hear when they visit Ireland. And it comes from an institution founded to serve the British colonial administration.
You’ve no doubt heard the twisted narrative that Irish prisoners sent to the Caribbean became “indentured servants,” as if that somehow erases the reality. Nobody can substantiate the difference between the two fortunes. Meanwhile, the British medical journal of the time defined the Irish as a sub‑species—literal vermin.
Why is the context of ethnic cleansing and genocide completely ignored? When Irish prisoners started mutinies and breakouts alongside their African counterparts, that history is buried. When those Irish men had children with African women, even if we accept the “indentured servant” fiction, those children were born into slavery. Recent DNA revelations in the US confirm it. Where are the stories of Irish “indentured servants” returning home with the fruits of their labour?
There was no land‑clearing genocide, slaughter, and subjugation, according to this version of history. It was apparently a massive apprenticeship scheme in the Caribbean, provided by benevolent overlords. It would be funny if it weren’t so serious. The hypocrisy of the old British colonial establishment in Ireland lecturing the Irish nation on anything is beyond belief.
The Colonial Institutions That Never Left
Imagine the irony: the old British white supremacist class—the “Dublin 4” set, the old colonial institutions—lecturing the Irish nation on white supremacy. These institutions were literally founded on it.
If you’re not from Dublin, you may not realise the significance of crossing the Liffey—socially, culturally, and politically. There are two very distinct accents in Dublin for a reason. Our history is the shared history of the oppressed Irish nation. Their history is the management of the colonial empire in Ireland. They were the very first shoots of British colonialism, designed for the purpose of keeping the Irish down generation after generation. An apartheid colonial state that, through chronic nepotism, hasn’t changed much in the hundred years of so‑called independence.
They couldn’t let go of their colonial mindset. And they’re not very diverse.
File Photo Rough Sleepers and homeless figure are up as a statement on March homeless figures was released today. End. 1/1/2018. New Years day Rough Sleeper. A person is pictured in a sleeping bag outside the GPO in Dublin city centre today. Photo:Leah Farrell/RollingNews.ie
Undermining Nationalism & a proponent for Austerity, this isn’t conspiracy, this is the historic basis for the policy.
Sutherland was outspoken on globalization, European unity, and migration, often emphasizing economic benefits while critiquing nationalism.On migration: In a 2012 UK House of Lords testimony, he stated that the EU should “undermine” national homogeneity to promote multiculturalism, arguing: “Individuals should have freedom of choice” to work or study abroad, and migration is a “crucial dynamic for economic growth.” He co-authored a 2012 op-ed with EU Commissioner Cecilia Malmström: “Europe faces an immigration predicament… Europe can never have enough entrepreneurs.”
Who Gets Housed? Who Gets Pushed Out?
These institutions have flourished while young working‑class people are allowed—sometimes incentivised—to leave the country in droves. Our people scattered to the corners of the globe. When Irish people leave, there is no safety net at their destination. No policy gives them preferential treatment or helps them up.
Why does the state continue to force young Irish men and women to leave while welcoming foreigners with open arms? The state spends billions on immigrants but does nothing to stem emigration or provide homes for its own people. Wave after wave, Irish people demonstrate that all they ever needed was an opportunity at home. Why are Irish working‑class kids less deserving? According to whom?
Where are the youth training schemes and job placements for our young before you start foreign diversity hires? These are our children. This is the nation.
We all know where the money in Ireland is being made, and by whom. It’s that same “Dublin 4” set. Our colonial caretakers projecting their own historical guilt onto the rest of us. Sorry—that’s not going to wash.
To be honest most Irish people had forgotten or ignored the old colonial class we thought they had naturalised but obviously they haven’t, they have unmasked themselves & their anti Irish agenda, they are the far right in Ireland!
Diaspora We’re constantly beaten with this rhetoric about the Irish diaspora leaving and therefore we gave up our right to self determination and a culture of our own.
Not by fuckin’ choice, the Irish were driven from their homeland by British colonials, the descendants of whom are the ones who make up todays establishment, They are the people pushing the migration agenda. West-Brits! Looney lefties spawned by those same British academic institutions who now claim to be more Irish than the Irish themselves.
Irish people are not anti English, we’re anti British. We’re not racists people have been coming and going for years without a word said. Many settled migrants see what’s happing & support us. Don’t take us for fools, We see the difference. Tiocfaidh ar la
I am writing this in response to an article published in the SUNDAY TIMES, dated 26 July 2015 by Conor Brady, titled “Tide turns as political system struggles to keep its head above water”
If I were a reader from outside the state and dependent on the author for an accurate account of what was going on, I might be forgiven if I ended up with the conclusion that Democracy and the Citizenry of this state were being terrorized by an army of 100,000 fascists who beat & coerce poor gardai & beleaguered politicians who have only the purest intentions. “Foul mouthed protestors” compared to O’Duffys blueshirts is a reversal of the fact, that description is far more fitting of Kenny & his blue shirted gardai, to say this state operates on anything other than coercion would be hard to substantiate.
Rather than following the lead of current distorted empty rhetoric, I intend to demonstrate the fallacy that the author and other members of the choir have allowed themselves, to demonstrate there is no rule of the majority, no rule of law and that the word democracy is used to legitimize a so called elite minority of dictators and cronies.
Irish water and the water charges were established under demands from the Troika and not a sudden realisation that our water system needed to be overhauled, let us be clear on that. We would have to question the competence of any government who claims water shortages in a country which gets 2000mm of rainfall annually. Water charges came about as a direct result of a contentious and ill advised Bailout, A Bailout which covered the bad borrowings of the golden circle and reckless lending of private commercial banks, none of which was the fault of the public at large. Indeed the bailout did nothing to relieve the plight of Irish citizens. The majority who while coping with the loss of Billions of euro’s from circulation and the economic collapse it caused, now have the reckless borrowings of others heaped on top of them. This was a massive misappropriation of both authority and resources.
Despite what seems like an eternity of lies, threats and coercion, the greater majority of citizens do not accept this liability despite the choirs plea’s and threats to get on board, “No way they won’t pay” They are not a fringe element as suggested, they are the greater majority, I was under the impression that Democracy represented the majority? Not in Ireland it seems and not according to the author of the article. Kelly continues with his “You’ll pay one way or another” tactic. In modern stable and civilized societies we expect to be able to look to the law and the courts for direction and an avenue to challenge the fairness and logic of imposition…. But not in Ireland. Despite the fact there is no lawful precedent for individuals or a population to suffer un-consensual surety for the bad debts of other private individuals, there was an arbitrary decision taken based on nothing but bankers lies and unaccountable governance. Upon a challenge lodged by David Hall with the High court, the presiding justice refused to hear his case based on the constitutional position that citizens have no say, they cannot challenge the state, their only right is to vote, which they then did.
The current coalition party’s were elected on a magic carpet of lies and empty promises; they played on the public sentiment and once behind the barricades of office disclosed the farce of Irish democracy for what it is. So despite granting the current coalition its wishes on the promise of change, these parties and individuals who took up office carried on these contentious policies in spite of clear mandate. What manner of Democracy is this?
The constitution creates the terms and conditions of governance, a constitution which was opposed by every party in the country bar Dev’s fianna fail in 1937, it created an absolute authority no different than Mussolini’s Italy and Hitlers Germany in legal structure, both of which were popular prior to the outbreak of WW2. The constitution created a Defacto state devoid of substantive law or lawful redress against its agents actions, it is claimed that this was necessary to provide the protection of adequate public services, running water, hospitals, schools, refuse collection etc, services that are now being privatised and put outside the reach of many contrary to public requirement. In fact all the social reasons for granting such a authority have been privatised away.
Law only applies to the citizenry, only we are liable for our actions in the “best little country to do business in”.
The DPP holds a monopoly on prosecution in this state under the dictate of the constitutional authority granted by the Attorney General. The law does not apply to everyone equally. The DPP stands today as an obstruction of justice and the reason there are so many ombudsmen and tribunals. The DPP acts as legal counsel for the gardai and state, It makes no apologies for refusing to prosecute its own. Recently we saw a claim of rape against a garda being dismissed by the DPP, not a judge. In the lower courts recently, presiding justices acted as defence for one garda who had no tax or insurance on his private vehicle, and a second justice acting as defence for a garda pissed out of her mind breaking red lights and swerving dangerously. Penalty points don’t apply if “you know someone”. According to Clare Daly a member of the public was summarily executed by a member of the gardai and his colleague who reported it told to pretend he hadn’t seen it, Sorted! All were acting in their private capacity at the time sending loud messages that for all intent & purpose they are above the law.
Some of us will remember the threats of the GRA at croke park a few years ago, threats to withhold discretionary enforcement of certain legislation, the states revenue stream. This stated position saw them turn their backs on both the public and fellow public service counterparts. Gardai are the tool of an undemocratic government & they know it. They exercise a discretion without fear of liability. A necessary evil to protect the status quo.
Despite the fact that Ireland is a signatory to the European charter of human rights, citizens have no way of enforcing those rights, they are unconstitutional, instead the court views them only as arbitrary favours (ex-gratia) under appeal, maybe, if you are lucky.
Why would we respect laws which are not applied equally, when by virtue of nothing more than their own collective interest, some are elevated above them?
We must wonder about that circle of people who dictate and pontificate how we must all suffer while they insulate themselves from the effects of austerity and law, Howlin pleads helplessness in the face of ever increasing government pay & pensions while others face destitution and neglect. The lengths the state has gone to to insulate landlords from water charges and falsely prop up rents instantly suggests that the majority of them are within government itself, all branches no doubt. Those in offices of government can’t help but make themselves comfortable while they make the “difficult decisions” for everyone else.
In summary I believe the Irish public have shown huge restraint in the face of all this hypocrisy, the lip service provided by the high court to the right of protest is regularly and arbitrarily breached by gardai, over-riding the high court by arresting protestors and releasing them without charge, never fearing claims of wrongful arrest or personal liability,. There is no guarantee of due process or fair treatment in the courts, No absolute right of Habeas corpus, only 2 weeks ago a man was dragged from the district court under an allegation he was recording, later he appeared back before the court clothes ripped & his face bruised, he was held in contempt and when habeas corpus was applied for they claimed they couldn’t find him. The Master of the high court has ruled on the abuse of the civil process &widespread denial of due process even to the point of referring an incident of it to the DPP, of course an injunction spared the office the mild embarrassment of its own refusal to act, all rights even basic commercial rights are arbitrary and on a whim. Courts uphold internal policies of foreign entities rather than the rule of law.
So why would we continue to pay homage to this farce described as fairness and democracy, I’ve stopped protesting, I don’t sign petitions and I will not rely on political parties to bring about change, It is the system and presumptions of governance which must change to meet the demands from the public now, Old parties in new suits aren’t fooling anyone but the establishment wont suffer real change, they are intent on causing another rebellion to mark the centenary of the last. Indeed we might wonder what has changed since then?
However there is hope, in this age of information the pen is mightier than the bayonet, I realise that the current constitution was adopted under popular vote, that it requires majority registration to hold any legitimacy of consent. I and many of my friends and family have deregistered, we have removed our consent, It is a growing idea whose time has come, I don’t dictate to others to follow my lead, it is only important that people know they have the RIGHT to do so. Both the state and Europe will have to be very careful when considering its impositions on the Irish public in the future. We will be governed by consent and not coercion. While this may turn the establishment’s blood cold, they are masters of their own demise. This is the true tide of change; we have little to lose and everything to gain, they have seen to it.
Perhaps instead of watching the “political system struggle to keep its head above water” we should do the right thing and push it under.
Well the Irish political news website has made a big splash on the scene, exposing political corruption, mismanagement & lies. The new kids on the block have thousands of adoring fans, they’re cutting through quagmires where the establishment media just won’t go! But i have a question
What’s the fuckin’ point Lads?
I turned 53 last week, I’m not smart or well educated, maybe I’ve lived to see too many rotations of the political carousel, maybe too many times i’ve seen corruption scandals lead to absolutely no consequence, I’ve grown a little cynical over the years but that doesn’t mean i don’t know what’s going on,I’m sure I’m not alone in this but I already know the outcome of these very credible revelations. This is not a jab at the people over at the ditch, it’s a stab at the establishment, a stab at Irish society & what we are willing to acknowledge & consent to.
Spoiler Alert! I am no sort of writer so i’m not going to string this out for you. Any amount of scandals no matter how earth shattering are NOT going to lead to any consequence BECAUSE THERE IS NO MECHANISM TO HOLD THE ESTABLISHMENT ACCOUNTABLE! Paying attention to scandals whilst also being aware there can be no possible consequence is the equivalent of a Doctor obsessively mopping reoccurring blood spots on the floor while failing to notice his patient bleeding out.
Corrupt self serving weasels attaining political office are to be expected, that’s why there is supposed to be an army of highly paid highly qualified civil servants & legal experts/courts there to regulate the system on our behalf. The last time someone tried to introduce an anti corruption bill, the whole thing was stone walled & eventually the Attorney General muttered something about it being unconstitutional. Why would our constitution seek to protect corruption? A constitution that denies equality of law, denies basic civil rights, denies unfettered access to the courts & an unchallengable monopoly on prosecution, It’s as if the constitution was a conspiracy, written by a group of loyalist civil servants but to what end? The ’37 constitution created unaccountable rulers not democratic representatives.
Ye see the embarrassing fact for the Irish establishment is that when a whistle blower does come forward it only highlights the nature of our system of government, of which the politicians are a tiny minority. They have to try get Tusla to shut them up with fake paedo allegations, anyone who has caused the state any ire knows that the branches of the state will all descend on you at once. What are they hiding? what are they protecting? Why does it behave in this manner?I still feel the shame in my gut every time that German banker (Jonathan Sugarman) who went all wiki leaks on our banking system during the financial crash is mentioned, he risked everything to tell us the truth & was forced to watch the guilty be ring-fenced by the state as a protected species.No good deed is allowed go unpunished in this Phony Republic
For me i barely pay attention to the minutia of the political scandals, I’m more focused on the system that repeatedly enables & protects the corruption, the politicians fed to you on a platter have done nothing wrong, everything is working as intended. There will be no consequence! If there is no anti corruption bill then there is absolutely nothing illegal about it.
When I see “investigative journalists”tackle something that will result in change i will get excited but until then it’s just another pied piper parade leading emotional idiots into yet another cul-ds-sac. Groundhog day!
From a humble citizen’s unqualified perspective, Ryan V AG is central to this article/essay, in which the big takeaway is that no rights are absolute. That ruling is often referred to when explaining the incompatibility of ECHR with Irish law; while Ireland is a signatory to both the UN and EU charters on human rights, Co- Guarantor of the citizens in N. Irelands rights, it claims the charters are repugnant to our constitution. Ryan V AG also outlines the discretion that the judiciary have to apply one-time arbitrary rights which set no precedent and end in ex-gratia settlements, in other cases European rulings have been spressed by the supreme court. In comparison with our EU and US counterparts, Irish citizens appear to have the legal status of Indentured Servants in relation to the state. Where I come from “Unenumerated Rights” would be referred to as “lucky bag rights” dispensed at will.
Our cousins in the US would say that their bill of rights is the restraint on government. “Absolute power corrupts absolutely” there is no such restraint on Government in Ireland, even the basic rights granted by the British enacted 1922 constitution were removed. The restraint against inventing new special purpose court, the right to a fair trial, habeas corpus, elements considered the basis of any civil society are not rights per se in Ireland. Should we expect the citizens of Northern Ireland to accept those terms in any future United Ireland? The DPP holds a monopoly on criminal prosecution and there are very few avenues of civil recourse against the state for a citizen, what avenues do exist appear far more like cul-de-sacs.“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.” Helen Whately Legal Researcher, Office of the Director of Public Prosecutions.
Having received its Royal Charter from Henry VIII, Kings Inn will soon be 500 years old. The court services celebrated their bicentenary in 1998. Indeed, most Irish establishments have their roots based in British rule, which we inherited during the handover as a result of the treaty, Has the philosophy of these institutions changed to any great degree and is it evident in our written law & interpreted through the courts?I read a book authored by a Trinity student titled “The Civil Service and The Revolution” where it tackles the two contradictory accounts of the process by which an Irish State replaced the British State in Ireland. He quotes Kevin O’Higgins, a minister in the Provisional Government, describing himself in 1922 as standing amongst the ruins of the British empire in Ireland while contrasting it with “the magisterial calm of Joseph Brennan, who had been a senior civil servant in Dublin at the handover” describing, “no immediate disturbance of any fundamental kind in the daily work of the average Civil Servant”. It was business as usual, and I am sure that our judiciary would have a similar tale to tell. Is this why, as we approach the state’s first centenary, and 223 years of Irish courts operating, that the Irish judiciary to this day are not capable of defining even the most basic rights required by civil societies all around us. What rights that are attributed to the citizen in the ’37 constitution come with a disclaimer. In a paper written by Susan Denham, she speaks about the group of civil servants and barristers who wrote the constitution. I believe most had served in the British administration prior to 1922, and the group was headed by a man named Hearne. So, the preamble holds no relief, it may be viewed as men’s rea by some. Irish people did not thrust the constitution onto an unwitting establishment. In fact, they’re not qualified to interpret its contents. That privilege is the reserve of the courts, and the courts cannot be held to anything they say on any given day.
Unenumerated Rights – Sustainable in Modern Ireland? I think a more pertinent question would be how will anyone justify any of this as the broader public becomes aware in this age of information? Is there justification? Are Irish people less worthy of rights? What does this say about our Judiciary and wider legal fraternity?
Civil Liability of Prosecutors under Irish Law1This paper was prepared by Helen Whately, Legal Researcher, Office of the Director of Public Prosecutions, in response to a questionnaire from the Prosecutor General of the Republic of Hungary in 2008.
A conference was held in March 2010, entitled “Civil Liability of Prosecution Services and Individual Prosecutors” to discuss responses from various jurisdictions to the questionnaire. The paper was revised after the Conference and submitted for publication in the final report on the review process.
Introduction 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. Irish law is subservient to a written Constitution, which guarantees the rights and freedoms of Irish citizens, among others. Ireland is also a party to the European Convention on Human Rights, which was incorporated into Irish law by the European Convention on Human Rights Act 2003. However the Convention was incorporated at a sub constitutional level: legislation cannot be struck down by the courts simply by virtue of it being incompatible with the Convention and compensation for any violations of Convention rights will not be paid as of right but on an ex gratia basis. In order to evaluate the liability of public prosecutors in Ireland one must consider the nature of the Office and its role in the Irish criminal justice system. The Evolution of the Irish ProsecutorThe Constitution of Ireland, adopted in 1937, provides for an Attorney General “who shall be the advisor of the Government in matters of law and legal opinion”. The Constitution also provided for the prosecution of all indictable crime in the name of the People at the suit of the Attorney General or some other person authorised in accordance with law to act for that purpose. From 1937 to 1974 the Attorney General continued to exercise both these functions. In addition to exercising the function as legal advisor to the government, the Attorney General had, and continues to have, a function to act as representative of the public in legal proceedings for the assertion of protection of public rights.
The Prosecution of Offences Act, 1974, effected a transfer to the newly created Office of Director of Public Prosecutions of “all the functions capable of being performed in relation to criminal matters and in relation to election petitions and referendum petitions by the Attorney General” immediately before the commencements of that Act. Section 2(5) of the 1974 Act dictates that the Director “shall be independent in the performance of his functions”. While the Act provides that the Director and the Attorney General “shall consult together from time to time in relation to matters pertaining to the functions of the Director” the Attorney General has no power to give an instruction to the Director. Any examination of the liability of the Office of the Director of Public Prosecution in civil law must be viewed in light of this independence. The Office of the Director of Public Prosecution exercises its functions on behalf of the State and not individual complainants. As a result of this the Office originally maintained a policy of not giving reasons to victims for decisions taken not to prosecute. However this policy is currently under review; in October 2008 the Office began a pilot scheme whereby reasons for a decision not to prosecute would be provided in cases where there has been a fatality. In implementing any policy change, the Office must be aware of the rights of a suspect, such as the presumption of innocence and the right to a good name. Therefore should the review lead to a widespread policy change on this issue, it is likely that the Office’s duty towards those accused or suspected of a crime will come to the fore.
Statute Law Statutory Remedy for Miscarriages of JusticeThe Criminal Procedure Act 1993 introduced a statutory right to compensation where it is established that a newly discovered fact shows that there has been a miscarriage of justice by virtue of a conviction. Section 2 of the Act confers jurisdiction on Court of Criminal Appeal to quash a conviction or review a sentence imposed in a previously and finally decided case where the convicted person claims that a new or newly-discovered facts shows that there has been a miscarriage of justice in relation to the conviction or that the sentence imposed was excessive. Section 9 (1) details the conditions necessary for the payment of compensation: (1) Where a person has been convicted of an offence and either— (a) (i) his conviction has been quashed by the Court on an application under section 2 or on appeal, or he has been acquitted in any re-trial, and(ii) the Court or the court of re-trial, as the case may be, has certified that a newly-discovered fact shows that there has been a miscarriage of justice, or (b) (i) he has been pardoned as a result of a petition under section 7, and
(ii) the Minister for Justice is of opinion that a newly-discovered fact shows that there has been a miscarriage of justice, the Minister shall, subject to subsections
(2) and (3), pay compensation to the convicted person or, if he is dead, to his legal personal representatives unless the non-disclosure of the fact in time is wholly or partly attributable to the convicted person. It will be noted that a plaintiff must have been convicted before any right to compensation arises. Therefore an acquittal at trial will not give rise to any such claim. Subsection 2 of section 9 dictates that an individual may apply for compensation under the Act orinstitute an action for damages arising out of the conviction; this would suggest that one cannot do both. Section 9(4) dictates that the Minister for Justice, Equality and Law Reform shall determine the amount of compensation payable. Any person dissatisfied with the amount of compensation may apply to the High Court to determine the appropriate amount; section 9(5) states that the award of the High Court shall be final. Section 9 was successfully invoked in the case of Francis Shortt v. The Commissioner of an Gárda Síochána Ireland and the Attorney General3. The applicant’s conviction was declared a miscarriage of justice in 20024. It appeared that he had been convicted on the perjured evidence of two unscrupulous Gardaí wishing to further their careers. After successfully appealing his claim for damages to the Supreme Court the applicant was awarded €4,623,871.00. Compensation under the Criminal Procedure Act 1993 is not merely available where there has been misconduct on the part of any State agent. In the case of DPP v. Hannon5 the applicant was convicted of sexual assault and common assault allegedly perpetrated against his ten year old neighbour. Nine years after the alleged offence the complainant admitted to Gardaí that the offence had not occurred at all and that she had fabricated the entire incident. It was argued on behalf of the Office of the DPP that the applicant was not entitled to damages because there was no culpability on the part of the State or its agents. The Court of Criminal Appeal rejected this contention noting that international obligations required compensation where a miscarriage of justice has occurred; a requirement that there be evidence of state culpability before the right to compensation arose was not in keeping with such obligations. The case of an innocent person wrongly convicted was clearly found to be a miscarriage of justice. Tort Law There is limited opportunity under statute, outlined above, for an individual to make a claim for compensation against the State for wrongs committed in the criminal justice sphere. We must therefore turn to Irish tort law to determine whether any further rights to open a civil lawsuit exist. At the outset it should be noted that in case of Byrne v. Ireland6the Supreme Court rejected the State’s contention that it was immune from tortuous liability; the State was found to be a juristic person who would be vicariously liable for the negligent acts of its servants committed in the course of employment. The plaintiff, therefore, succeeded in her action for damages for injuries sustained when she fell into a trench dug on the authority of the Minister for Posts and Telegraphs. The Court further held that the Attorney General is the appropriate person to represent the State against such a claim for damages. The concept of vicarious liability suffers from difficulties of interpretation: who is a servant and when are their actions in the course of employment? However the Irish courts have declared a number of actors to be state servants, for example judges, Gardaí7 and members of the defence forces have all been so classified. Therefore it would seem that public prosecutors could be so viewed. We will now turn to specific areas of tort law that may be of assistance to a civil litigant. Malicious Prosecution
The tort of malicious prosecution was developed at a time when prosecutions were initiated by private individuals, which necessitated a remedy against such prosecutions brought with ulterior motives. To successfully prove the tort the plaintiff must show that:
(i) the criminal proceedings terminated in his favour;
(ii) the defendant instituted and/or participated in the proceedings maliciously;
(iii) there was no reasonable or probable cause for such proceedings;
(iv) the plaintiff suffered damage.
8A crucial feature of this tort is the need for an acquittal; if the applicant has been convicted no action will lie, irrespective of the presence of evidence that such a conviction was obtained illegally. Quill9 notes that privileges afforded in the interest of public policy will not apply in malicious prosecution actions, nor will public prosecutors be immune from such actions. In the case of McIntyre v. Lewis10the applicant was assaulted by two Gardaí, arrested and brought to the garda station where he was informed that he was being prosecuted for assault. The applicant succeeded in his action for malicious prosecution and false imprisonment in the High Court. On appeal it was argued that he had not adequately proved that there was an absence of a “reasonable and probable cause” for bringing the assault charge. Hederman J. in the Supreme Court rejected this argument and approved the following charge of the trial judge: I have already shown you how closely false imprisonment and assault relate to each other in the nature of the action and what happened. But malicious prosecution has another element in it and that is invoking a purported authority and abusing it; using it where they have no right to be using it, abusing the authority of the courts for the purpose of bringing about a prosecution and the consequences of that. And that’s why that’s a completely different element and the onus there is on the plaintiff to show that if he is to get any damages under that heading, that in fact the Gardaí did abuse their position and they brought a prosecution against him for a completely wrongful motive and in the circumstances in which there was no reasonable cause to bring it at all. Hederman J. added that in this case the simple fact that had to be decided was who had committed the assault; once it was found that the Gardaí had in fact committed the assault there was no need for the plaintiff to go further and “prove a negative”: the absence of a reasonable and probable cause for bringing the charges. The Supreme Court upheld the findings in this case but reduced the award. 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. In the absence of any direct case law, the Irish courts have been unclear as to the liability of the Office of the Director of Public Prosecutions for malicious prosecution actions. In the case of JF v. DPP11, Hardiman J. noted obiter that in malicious prosecution cases the courts have taken a practical view of the tort to fit complainants within the definition of “prosecutors”. He stated as follows:
Because the Director of Public Prosecutions or, occasionally, another public official, has a monopoly of prosecutions on indictment in Ireland, the complainant in such a case never functions as the prosecutor. Nevertheless, the law of tort acts realistically in regarding the complainant as the institutor of criminal proceedings and I believe that he should be so regarded for the purpose of this litigation as well. As such institutor, his position is far more closely analogous to a plaintiff in civil proceedings than to a witness who just happened to be there. By setting the criminal law in motion he plainly forfeited a degree of privacy, although in many situations his identity will be protected from disclosure to the public at large. A person accusing another of an offence involving disgrace, loss of liberty, loss of reputation and professional oblivion, cannot expect to control the degree to which relevant information about him will be shared with the person whom he accuses. He is not merely the institutor of the proceedings: he is himself the object of the alleged offence. His veracity and accuracy is central both to the criminal proceedings and to the contention at the centre of the case against the applicant’s claim for judicial review.
It would appear, therefore, that as members of the Gardaí may be held liable for malicious prosecution along with individual complainants, it may be possible that a public prosecutor could be similarly found liable, provided there is sufficient evidence of malice. Developments in the relation to the duty of disclosure on the Office of the Director of Public Prosecution will be relevant in this regard as it would be very difficult for a plaintiff to establish malice if they cannot get access to documents relating to the decision to prosecute. As the Irish courts have accepted that decisions of the DPP are only judicially reviewable in exceptional circumstances it is likely that any request for information surrounding such a decision would be considered with caution.
12NegligenceIn order to succeed in an action for negligence a plaintiff must show that they were owed a duty of care by the defendant arising from: the proximity of the parties; the foreseeability of the damage; and the absence of any compelling exemptions based on public policy. They must further show that such a duty was breached causing damage. In general the judiciary have been reluctant to accept that the Director of Public Prosecutions, or the Gardaí, owe any duty of care to individuals. This reluctance stems from the public interest in the prosecution of crime and the public detriment which may ensue from attaching such a duty. The issue was discussed in the case of W. v. Ireland (No. 2)
13. The applicant in this case, claimed that the Attorney General breached his duty of care and/or his constitutional duty along with statutory duties owed by failing to process speedily the extradition of Father Brendan Smyth to face charges of sexual assault against the applicant. Costello P. rejected the existence of any such duty, making the following observations: Turning, then, to the facts of this case it seems to me that the denial of a right of claim for damages for negligence on the grounds of public policy arises from the functions which the Attorney General is called upon to perform in the public interest and the consequences for his ability properly to perform them, should the alleged duty exist. By conferring an important role on him in the extradition process, the Oireachtas has involved him in a significant way in ensuring that proper compliance with the State’s international obligations in the field of extradition is achieved. The Act requires him to weigh the information made available to him relating both to the intention to prosecute the person named in the warrant, and also the evidence on which the intention to prosecute is based, and should the information he obtains not be sufficient, he is required to request further information. If in carrying out this function, he is also under a duty of care to the victim of the crime referred to in the warrant not to delay, there is a risk, which I do not think it is in the public interest he should be asked to run, that a conflict may arise between the proper exercise of his public function and the common law duty of care to the victim which might result in an improper exercise of his statutory functions.
There are further compelling reasons why, in the public interest, the duty claimed by the plaintiff in this action should not be allowed. If a duty under the Act of 1965 exists it must logically follow (a) that the Attorney General would be under a similar duty in respect of any prosecutorial functions conferred on him by s. 5 of the Prosecution of Offences Act, 1974 and (b) that in exercising his prosecutorial functions under that Act, the Director of Public Prosecutions would owe a like duty to all victims of crimes in the cases in which he is considering the institution of prosecution. Because of the inhibiting effect on the proper exercise by the Attorney General and the Director of Public Prosecutions of their prosecutorial functions, it would be contrary to the public interest that a duty of care at common law be imposed on them. So to conclude is not to submit to a “flood gates” argument of doubtful validity, it is to accept the logical consequences, should the duty of care at common law be imposed in the execution by the Attorney General of his functions under the Act of 1965. Presumably similar policy considerations would apply to individuals suspected or accused of criminal behaviour. However in light of the European Court of Human Rights decision of Osman v. UK14 such a public policy exclusion may be regarded as disproportionate. In this case the Court found that an exclusionary rule that prohibited actions against the police by the victims of crime for negligent investigation on the grounds of public policy was contrary to Article 6 of the Convention. The Irish Supreme Court displayed a greater willingness to review the workings of the DPP’s Office in the case of Eviston v. DPP15. In this case the Supreme Court held that the decision to prosecute the applicant, where she had been previously been informed that she would not be so prosecuted, was a breach of fair procedures. In the circumstances the Court found that the applicant’s prosecution could not continue. The approach in Eviston has remained exceptional and so would seem not to be indicative of a more watchful role on the part of the judiciary. In the case of J.M v. DPP16McCarthy J. in the High Court outlined that the case of Eviston itself articulated a rule that the Director is entitled to review his decision and that all citizens are now deemed to have knowledge of the existence of this rule. As a result the case before him could be distinguished from that of Eviston, with the effect that the applicant was not entitled to and order of prohibition. It should be noted that the question of duty of care in the sphere of criminal investigations has arisen in the Irish courts. Mr James Livingstone claimed that the Gardaí were guilty of negligence and breach of duty in their management of the investigation into the murder of his wife. He alleged that the Gardaí had an irrational fixation that he was the killer which caused him to be “pilloried” as a murderer causing him great damage. However as the matter was settled, with no admission of liability, an opportunity to examine the application of the tort of negligence to the criminal process was missed. In light of the above developments it remains an open question whether a duty of care to those accused or suspected of crime will be recognised at some future date. Other Applicable Torts
It should be noted that a broad range of torts have been argued in actions where individuals seek damages for acts committed during criminal investigations. In addition to the torts of malicious prosecution and negligence, applicants have claimed that they have been victims of defamation, false imprisonment and trespass to goods. As mentioned above, the applicant in McIntyre v. Lewis was awarded damages for false imprisonment against the Gardaí who assaulted and then arrested him. In Dowman v. Ireland17the State was held vicariously liable in an action for false imprisonment when the Gardaí unlawfully arrested the plaintiff.As the Director of Public Prosecution is independent of the Gardaí and exercises no control over their actions, it would be unlikely that prosecutors could be held liable for such false imprisonment. It would seem unlikely that an action for defamation could lie against the DPP by virtue of the fact that under Irish defamation law, an absolute privilege attaches to all statements which are made in the course of the administration of justice and a qualified privilege attaches to actions committed or statements uttered under legal duty. Therefore, in the absence of malice it would seem that statements emanating from the Office would be privileged and therefore immune from suit. The tort of trespass to goods may also be claimed where an individual has been deprived of their property in the course of criminal investigation. However, such an action has a limited prospect of success due to the fact that such acts will not be tortuous where they have been committed with lawful authority. Irish criminal law allows extensive powers of search and seizure, which makes success in such a claim unlikely where the investigation of a crime is concerned.
In the case of Jennings v. Quinn18O’Keefe J. recognised the public interest in allowing the Gardaí a wide power of seizure in relation to goods that may have evidential value in support of criminal charges or which may be stolen property. However, should an individual successfully claim that the seizure was committed without lawful authority an action against the Gardaí may lie. Civil Action for Breach of Constitutional LawFinally, it has been argued that a right to damages should arise based on the concept of a tort of breach of constitutional rights. Such an argument stems from the judgment of Walsh J. in Byrne where he stated: Where the people by the Constitution create rights against the State or impose duties upon the State, a remedy to enforce these must be deemed to be also available. Following on from this in the case of Meskell v. CIÉ19 Walsh J. stated that: It has been said on a number of occasions in this Court…that a right guaranteed by the Constitution or granted by the Constitution can be protected by action or enforced by action even though such action may not fit into any of the ordinary forms of action in either common law or equity and that the constitutional right carries within it its own right to a remedy or for the enforcement of it. Therefore, if a person has suffered damage by virtue of a breach of a constitutional right or the infringement of a constitutional right, that person is entitled to seek redress against the person or persons who have infringed that right. It was feared that such a broad statement would lead distinct torts to be subsumed into this general action, however in practice this did not occur. In the case of W v. Ireland (No.2), discussed above, Costello J. held that such an action for damages would only arise where existing statutory or common law did not already provide a remedy for the breach in question. Costello J. added that a failure of the action at common law would not, of itself, indicate that the plaintiff’s constitutional rights are not adequately protected. Hogan and Whyte have observed: …
[T]he courts have tended to take the view that the law of tort generally provides adequate protection for personal rights and that it is only in those cases where common law remedies are inadequate or non-existent that an action based directly on the Constitution would arise.20The right to sue for damages for a breach of a constitutional right is not confined to action against the State or state agents, but has been found to exist against a private individual or entity.21It would seem that provided the Irish judiciary exercise the caution demonstrated in the W case by refusing to extend the action more generally, that no action would lie in the circumstances outlined in the questionnaire. This is due to the fact that an individual who has been falsely accused, detained, prosecuted or deprived of their property would be covered under defamation, habeas corpus, malicious prosecution and trespass on property respectively.
Summary
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. There may be extreme cases where misconduct makes it imperative that a civil remedy be afforded such as the McIntyre or Shortt or McBrearty cases. However, the courts are likely to avoid any broad statements of duty; limiting such actions to cases with clear evidence of malicious motives. As a result of recent high profile settlements it is likely that a greater number of cases will be taken against the Gardaí in the future; whether such actions will extend to prosecutors remains to be seen.
CronyIsland 