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Denis O'Brien claims Dil remarks

breached his rights to privacy


Tuesday, November 29, 2016

Denis OBrien has claimed remarks made in the Dil about


his personal banking affairs effectively determined a court
case he had initiated against RT.
The High Court has begun hearing his legal action against a
number of TDs and the Dil Committee on Procedure and
Privileges.
He claims his rights to privacy and access to the courts were
breached after his dealings with the IBRC were disclosed
during a Dil debate in May 2015.
By doing so, he believes the temporary injunction he had
been granted against the publication of such confidential
information became worthless.
The hearing is due to take up to eight days. Mr OBrien is
expected to give evidence on Thursday.

http://www.irishexaminer.com/breakin
gnews/ireland/denis-obrien-claimsdail-remarks-breached-his-rights-toprivacy-766272.html
Teacher strike: Document hammered
out in the early hours set to go to union
committee
Tuesday, November 29, 2016

There are hopes that new proposals could bring about a


breakthrough in the secondary school teachers dispute.
A campaign of industrial action that closed hundreds of
schools was suspended earlier this month to facilitate new
talks, which ended in the early hours of this morning.
A document focusing on pay levels and working hours
flexibility has now been hammered out.
The ASTI will now put the deal to its 23-member standing
committee, and then to its 180-member central executive
committee.
Past proposals have previously fallen at one or other
committee stage.
One of the main sticking points for the ASTI has been the
restoration of pay for new teachers, which is due to be done
under the Lansdowne Road Agreement; teachers want it to
happen now.
Minister for Education Richard Bruton would not say what
kind of deal is on the table.
"These talks are continuing, and the best way to hopefully
ensure a good outcome is to respect the privacy of that

process," he said.

The Government has been accused of deciding not to put


contingency plans in place to keep schools open during ASTI
industrial action in order to bring the dispute "to a head",
writes Elaine Loughlin, Political reporter.
Both Fianna Fil leader Michal Martin and Sinn Fin
president Gerry Adams called on the Taoiseach to make it
clear that there will be a pathway to full pay restoration of
public sector workers.
While AAA-PBP Richard Boyd Barrett demanded a "proper
debate" in the Dil tomorrow on the teachers dispute which
he described as an "urgent crisis".

Speaking during Leaders Questions in the Dil this afternoon,


Mr Martin said: "I believe it was within the capacity of
management to keep schools open but my suspicion is that
the Department and the Government decided to bring the
dispute to a head and allow the teachers to go out.
"That is my suspicion and that is why there was no will to
keep the schools open and to sort out the supervision and
substitution issue, particularly for the exam students."
Responding Enda Kenny said he did not accept that the
Government, the Minister and the Department were "lax" in
not dealing with the dispute.
"This has dragged on for quite some time but the one hour
not being worked results from a unilateral decision made by
the ASTI that has affected its own members to their
detriment.
The Taoiseach denied that the government had "locked"
teachers out of schools.
He said there was "money on the table" which could lead to
a "speedy conclusion" of the dispute over supervision and
substitution.

But Mr Martin said there has been failure to engage "early


and effectively" with secondary school teachers which has
led to the withdrawal of cover by ASTI members and strike
action over pay restoration.
"For some reason, the Government has not publicly
committed to a pathway towards equal pay for newly
qualified teachers, which would go a long way towards
dealing with that issue," Mr Martin told the Dil.
"We are now in a situation in which feelings are becoming
more entrenched and resolving the dispute could become
more difficult."
Mr Martin added that students are "the real victims" of this
industrial dispute.
"We know of the centrality of the leaving certificate and of
how difficult and challenging it is for any student in his or her
leaving certificate year. The absence of contingency planning
led to yesterday's closures. Teachers turned up, but the
gates were locked."
Secondary students across the country are heading back to
school today as the ASTI has suspended its industrial action.
Last night the union accepted an invitation from the
Teachers' Conciliation Council to attend talks with the
Department of Education.
Those talks will be aimed at resolving the dispute over pay
and conditions.
Members will be available for teaching, supervision and
substitution duties for the duration of the discussions, which
are expected to continue until the end of November.
Education Minister Richard Bruton has welcomed the
decision.
Around 500 schools were closed on Monday and Tuesday as
school management said they could not open for health and
safety reasons without adequate cover for supervision and
substitution duties.

ASTI General Secretary Kieran Christie said they chose to


suspend the industrial action as a mark of good faith.
"The suspension of the industrial action has to be seen as a
constructive move on our partWe would expect
reciprocation and that the talks would bear fruit and
dividends for our members)," he said.

Around 400 schools will stay shut tomorrow as the row


between secondary teachers and the Government continues.
200,000 students were affected by a day of strike today.
With ASTI teachers withdrawing from supervision duties
tomorrow many schools will again have to close.

These teachers at St Aidan's CBS in Whitehall in Dublin think


the dispute will continue for a while: "Unless the
Government starts acting maturely and engaging with the
process and talking to us and talking to our leadership, I
dont see an end in sight.
"Its very sad and its very demoralising."
Another said: Giving the lack of urgency in Government
seems to me that theyre quite happy to let it drag on, so
unfortunately I suspect it will.

here has been a breakthrough in the teachers' dispute.

The union involved, the ASTI, has accepted an invitation to


talks with the Teachers' Conciliation Council.
ASTI members will be available for teaching and supervision
and substitution duties tomorrow and for the duration of the
talks.
Teachers representatives say they now expect that all
second-level schools will be open tomorrow.

Around 500 schools were closed today due to the ASTI


action.
The disputes centre on pay scales for new entrants, and for
payment for supervision and substitution duties.

State bids to extend surveillance powers


Tuesday, November 29, 2016

Government proposals to widen surveillance powers of state


agencies aim to extend a deeply flawed system, a leading
digital rights group has said.

Justice Minister Frances Fitzgerald intends to bring in


changes to legislation to expand surveillance powers to
include the internet, emails, and encrypted online
communications.
Digital Rights Ireland said a Department of Justice document
proposed to allow for interception of over the top services,
such as webmail or Twitter direct messages, on the basis of
the justice ministers signature.
No judicial oversight would be required and the overall
authorisation, oversight, and complaint mechanisms would
be essentially untouched, it said.
The proposals aim to extend a deeply flawed system
without addressing the fundamental problems which make
the existing system in breach of international fundamental
rights standards.
It said surveillance based on political authorisation (rather
than judicial warrant) was undesirable, inconsistent with
case law and unnecessary.
Irish law already provides for bugging of buildings and cars
to be carried out on the basis of a judges decision there is
no reason why leading webmail should be different.
DRI said that international human rights standards require
that particularly sensitive communications particularly
between journalists/source and lawyer/client should receive
special protection.
Irish interception law fails to do this at the moment and
would not do so under these proposals, it said.
DRI said oversight mechanisms were ineffective and that
the existing designated judge was a part-time job for a high
court judge, with no technical expertise or staff. It said a Law
Reform Commission review would come after the laws were
introduced, akin to putting the cart before the horse.
http://www.irishexaminer.com/ireland/state-bids-to-extendsurveillance-powers-432768.html

Headline Debate on status of


treasonous republican ...
Offences Against the State Act
1939 or such as to constitute
treason under Article 39 of the
Constitution
Irelands OFFENCES AGAINST THE PERSON ACT
1861. ... An Act to consolidate and amend the Statute Law
of England and Ireland relating to Offences against the ...
Petit treason. 9 ..
http://www.irishstatutebook.ie/eli/1861/act/100/enacted/en/p
rint.html?printonload=true

Criminal-Law-Treason-Sedition-andAllied-Offences The Treason Act 1351


(a) ... of offences against public order
and they are not covered ... Northern
Ireland
http://www.lawcom.gov.uk/wpcontent/uploads/2016/08/No.072Codification-of-the-Criminal-LawTreason-Sedition-and-AlliedOffences.pdf
Offences Against the Person Act 1861 (c. 100)

Document Generated: ... would have amounted to Petit


Treason, ... Offences Against the Person Act 1861 .
http://www.legislation.gov.uk/ukpga/Vict/2425/100/enacted/data.pdf

Offences Against the Person Act 1861 Legislation.gov.uk

VICTORIIE REGIN2E. C A P. C. An Act to consolidate and


amend the Statute Law of England and Ireland relating to
Offences against the Person ... Ireland in which such
http://www.legislation.gov.uk/ukpga/1861/100/pdfs/ukpga_18610
100_en.pdf

TREASON ACT, 1939. AN ACT TO PROVIDE FOR THE


PUNISHMENT OF TREASON AND CERTAIN ANCILLARY
OFFENCES. ... that treason shall consist only in levying war
against
http://www.irishstatutebook.ie/eli/1939/act/10/enacted/en/print.ht
ml?printonload=true

The Irish Court System - CPA Ireland

The Irish Court System ... treason, piracy and related


offences, ... The Special Criminal Court was set up under
the Offences against the State Act 1939
http://www.cpaireland.ie/docs/default-source/Students/StudySupport/F1-Business-Laws/the-irish-court-system.pdf?sfvrsn=0

The 1937 Constitution and the enactment of the Offences


Against the State Act 1939 ... Offences relating to
documents ... enactment of the Offences against 1939
Act 1998
http://www.justice.ie/en/JELR/hederman
%20report.pdf/Files/hederman%20report.pdf
mcguill_ lisbon_INFORMAL CONSOLIDATION OF LEGISLATION
OFFENCES ... as the Offences against the State Act, 1939. ... of
treason; the expression "seditious document
http://www.ecba.org/extdocserv/mcguill_lisbon_appendix5.pdf

Full Abolition of
Water Charges is
only acceptable
outcome Broin
28 November, 2016 - by Eoin Broin TD

Responding to the latest round of leaks to RT of the report of the


expert commission on the future of water services, Sinn Fin
spokesperson Eoin Broin TD has said the full abolition of water
charges is the only acceptable outcome to Sinn Fin.
Deputy Broin said:
For the third time in less than a week, a media outlet has
received advance notice of the contents of the report from the
expert group on the future of water charges. Despite assurances
from Minister Coveney that the report would go directly to the
special Oireachtas Committee on Water, the reports contents
have been again leaked to RT. This is deeply disappointing and
further undermines the work of the Oireachtas Committee.
Sinn Fin will make our view of the report when we have had the
opportunity to read it in full. However, we have been very clear on
this issue from the start. Only the full abolition of water charges is
acceptable to Sinn Fin.
If the details of the RT report are correct, it confirms Sinn Fins
view that there is no legal impediment to paying for water
services from general taxation, a view backed up by independent

legal opinion.
However, people should be very weary of any proposal for a
reduced or modest charge, as once introduced, it can be
increased. Waivers can come and go, as we have seen with
domestic waste collection. Once a charge is introduced, we know
that, over time, it will increase; in the end, people will be left
paying the 500 originally proposed by Fianna Fil back in 2010.
The only acceptable solution to the Fine Gael-Fianna Fil water
debacle is to abolish domestic charges and to fund an ambitious
multi-million annual capital programme to upgrade the crumbling
water and sanitation system. This is what Sinn Fin campaigned
for during the general election and this is what we will vote for in
the Dil.

http://www.sinnfein.ie/contents/42604

Debate on status of treasonous


republican paper
Saturday, December 29, 2012
By Noel Baker

The government explored ways of refusing to grant the Sinn


Fin publication An Phoblacht official newspaper status, and
queried whether it was a treasonable document.
An internal government document from Jul 15, 1982, focuses
on the application by An Phoblacht Republican News for
registration as a newspaper under the Post Office Act 1908.
The letter, signed PC, begins by claiming there was a
prime facie case for the minister not having the power to
refuse the application but in the next paragraph draws
attention to section 10 of the of the Offences Against the
State Act 1939 and how there had been no prosecution
brought under that section.
Nonetheless the section makes it a criminal offence to send
through the post any document which is a treasonable
document or a seditious document.
It outlines how treason could be defined as inciting or
conspiring in an attempt by violent means to overthrow the
organs of government established by the Constitution.
It is a question of fact as to whether editions of the
newspaper in question habitually or even from time to time
contain material such as to render the edition a treasonable
or seditious document under section 10 of the Offences

Against the State Act 1939 or such as to constitute treason


under Article 39 of the Constitution.
I believe that a strong argument can be mounted to the
effect that the Ministers constitutional obligation not to
assist a treasonable activity is primary and that the
legislation concerned in so far as it might be seen to compel
him so to do would be unconstitutional but of course only to
an extent.
Initialised PC, the document concludes: I feel a letter
should be written by the Department in the clearest terms
stating in order to consider the application further they
require exact details of who the proprietor of the newspaper
is. This may also throw light upon the question of the
treasonable activities.
The file includes advice from the attorney general, Patrick
Connolly, saying An Phoblacht satisfies each of the
requirements set out in section 20(1) of the Post Office Act
1908 and this conclusion was unaffected by a
consideration of the contents of the publication.
http://www.irishexaminer.com/ireland/debate-on-status-oftreasonous-republican-paper-218081.html
The IN CAMERA Rule in Irish Family Law Cases ... Irish
Family Law Cases ... J. Restrictions on the Media other than
Defamation TCD Law School,
http://liamog.com/PDF
%20Downloads/In_Camera_Document_BobMC.pdf
REPORT OF THE LEGAL ADVISORY GROUP ON DEFAMATION by
ARTICLE 19 Global Campaign for Free Expression London
January 2004
https://www.article19.org/data/files/pdfs/analysis/irelandreport-to-lag-on-def.pdf

Constitutional safeguards against antiavoidance legislation in the Republic of Ireland


http://www.offshoreinvestment.com/media/u
ploads/Haccius17.pdf

ECPRD_UK Parliamentary sovereignty ...

may be declared invalid in ... removed


British parliamentary supremacy over
Ireland for a short period
Seminar organised by the legal
departments of the Belgian House of
Representatives and the Belgian Senate
within the framework and with the
collaboration of the European Centre for
Parliamentary Research and
Documentation
https://www.dekamer.be/kvvcr/pdf_sections/jurid/
ECPRD_UK.pdf
Key-Issues-From-the-Human-Rights-Act-to-a-Bill-of-Rights
There sometimes appears to be a tension between the
principles of the supremacy of Parliament and the ...
models for such a document, ... in Northern Ireland,
http://www.parliament.uk/documents/commons/lib
/research/key_issues/Key-Issues-From-the-HumanRights-Act-to-a-Bill-of-Rights.pdf
Human Rights Act to a Bill of Rights?
Proposals for a British Bill of Rights have come from across
the political spectrum. The various plans would have very
different consequences
The Human Rights Act (HRA) was introduced in 1998 to
bring rights home. Essentially, it allows UK nationals to rely
on rights contained in the European Convention on Human
Rights before the domestic courts.
The legislation has not been universally popular. Some have
branded it a criminals charter, following suggestions that
it had been abused by various litigants. In 2006 Tony Blair
complained that a judgment about a group of Afghans who
had hijacked a plane was an abuse of common sense. The
judgment was later upheld on appeal.
Such cases have fed concern that the courts are becoming

more activist and involved in dealing with small p


political questions that would previously have been settled
by politicians and administrators. Some political gures have
criticised the way in which the courts have dealt with an
increase in public law (judicial review) and human rights
cases. There sometimes appears to be a tension between
the principles of the supremacy of
Parliament and the rule of law, exacerbated by extensive
commentary on the Act. This has resulted in friction in policy
areas such as asylum, immigration and counter-terrorism.
Damaging myths about the HRA have taken root in the
popular imagination
The Conservatives have further argued that the current
legislation has created a culture of risk aversion among
public authorities. In 2006 a Government-sponsored review
of the operation of the Act stated that it
had been bedevilled by misconceptions and had sometimes
been misapplied. The Government also acknowledged that
a series of damaging myths about the Act had taken root in
the popular imagination.
TOWARDS A NEW BILL OF RIGHTS?
In 2007 the Labour Government began to consult on building
on the Human Rights Act to create a Bill of Rights. Other
political parties have also called for a Bill of Rights. There
are consequently various models for such a document, each
of which has a signi cantly different meaning.
BUILDING ON THE HUMAN RIGHTS ACT?
Some have suggested that wider economic, social and
environmental rights could be added to a British Bill of
Rights, though it may be that all concerned would prefer that
decisions regarding taxation and resource
distribution remained matters for elected governments
rather than the courts.
Labour mooted the possibility of introducing speci c duties
or responsibilities that would sit alongside the rights
already guaranteed, such as the duty to obey the law and
pay taxes, though, as some fundamental rights are absolute
and not subject to good behaviour, it is not clear whether
such responsibilities could be given legal effect in legislation.

REPLACING THE HUMAN RIGHTS ACT?


Some have argued that the HRA does little
to protect historic constitutional rights and liberties, such as
the right to trial by jury or free speech. The Conservatives
have suggested a new Bill of Rights to replace the HRA.
Exactly how this would operate in practice
in relation to the European Convention
on Human Rights is unclear, though the Conservatives have
indicated that they would seek a greater national margin of
appreciation in how the rights were applied in a domestic
context.
While it seems unlikely that the UK would opt out of the
European Convention on Human Rights, if the HRA were
repealed and the Convention rights were no longer
contained in UK law, aggrieved parties might once again
have to take their case to the Strasbourg court for
determination. Moreover, depending on the funding available
(through legal aid or otherwise), parties might nd it less
easy to bring rights-related proceedings.
There are also certain devolution issues which would need to
be overcome if the HRA were to be repealed. How would a
new Bill apply
in Northern Ireland, which has been working towards its own
rights framework? Would the Scotland Act 1998 need to be
amended, as currently the Scottish Parliament cannot pass
legislation which is incompatible with the HRA?
A NEW CONSTITUTIONAL FRAMEWORK?
A Bill of Rights might also be brought forward together with a
new written constitution. This could entrench constitutional
legislation and allow the courts to rule legislation unlawful.
Gordon Brown raised the possibility that such a document
might be published in time for the 800th anniversary of the
Magna Carta
in 2015. Creating such a new constitutional framework would
need to be achieved with political consensus in order to be
sustainable in the long term, but also perhaps with public
involvement. One criticism of the HRA has been that the
public has felt no ownership of the legislation. There have
been suggestions for a citizens convention to formulate or

debate proposals before they are put to the country in a


referendum.
Commentators and Non-Governmental Organisations
involved in the Bill of Rights debate (whatever their views of
the 1998 Act) look upon it as an opportunity to gain public
support for a new constitutional settlement. Most recognise
that while the HRA may
have had a substantial in uence on UK law, it has not found
popular support amongst the general public and has been
subject to sustained criticism by parts of the press.

Treason acts in
Ireland AGAINST
Europe

In law, treason is the crime that covers some of the more


extreme acts against one's nation or sovereign. Historically,
treason also covered the murder of specific social superiors, such
as the murder of a husband by his wife or that of a master by his
servant. Treason against the king was known as high treason and
treason against a lesser superior was petty treason. A person
who commits treason is known in law as a traitor. Oran's
Dictionary of the Law (1983) defines treason as "...[a]...citizen's
actions to help a foreign government overthrow, make war
against, or seriously injure the [parent nation]." In many nations,
it is also often considered treason to attempt or conspire to
overthrow the government, even if no foreign country is aiding or
involved by such an endeavor.
Outside legal spheres, the word "traitor" may also be used to
describe a person who betrays (or is accused of betraying) their
own political party, nation, family, friends, ethnic group, team,
religion, social class, or other group to which they belong. Often,
such accusations are controversial and disputed, as the person
may not identify with the group, or may otherwise disagree with
the group members making the charge. The term "race traitor" is
often used by white supremacists, or directed at people in interracial relationships with regard to miscegenation.

At times, the term "traitor" has been used as a political epithet,


regardless of any verifiable treasonable action. In a civil war or
insurrection, the winners may deem the losers to be traitors.
Likewise the term "traitor" is used in heated political
discussiontypically as a slur against political dissidents, or against
officials in power who are perceived as failing to act in the best
interest of their constituents. In certain cases, as with the
German Dolchstolegende, the accusation of treason towards a
large group of people can be a unifying political message.
Treason is considered to be different and on many occasions a
separate charge from 'Treasonable Felony' in many parts of the
world.
==History==
In English law, high treason was punishable by being hanged,
drawn and quartered (men) or burnt at the stake (women),
although beheading could be substituted by royal command
(usually for royalty and nobility). Those penalties were abolished
in 1814, 1790 and 1973 respectively. The penalty was used by
later monarchs against people who could reasonably be called
traitors, although most modern jurists would call it excessive.
Many of them would now just be considered dissidents.
In William Shakespeare's play King Lear (c. 1600), when the King
learns that his daughter Regan has publicly dishonoured him, he
says "They could not, would not do 't; 'tis worse than murder": a
conventional attitude at that time. In Dante Alighieri's Inferno,
the ninth and lowest circle of Hell is reserved for traitors; Judas
Iscariot, who betrayed Jesus, suffers the worst torments of all:
being constantly gnawed at by one of Lucifer's own three
mouths. His treachery is considered so notorious that his name
has long been synonymous with traitor, a fate he shares with
Benedict Arnold, Vidkun Quisling, Marcus Junius Brutus (who too
is depicted in Dante's Inferno, suffering the same fate as Judas
along with Cassius Longinus). Indeed, the etymology of the word
traitor originates with Judas' handing over of Jesus to the chief
priests, captains of the temple and elders (Luke 22:52): the word
is derived from the Latin traditor which means "one who
delivers." Christian theology and political thinking until after the
Enlightenment considered treason and blasphemy as
synonymous, as it challenged both the state and the will of God.
Kings were considered chosen by God. and to betray one's
country was to do the work of Satan.

Many nations' laws mention various types of treason. "Crimes


Related to Insurrection" is the internal treason, and may include
a coup d'etat. "Crimes Related to Foreign Aggression" is the
treason of cooperating with foreign aggression positively
regardless of the national inside and outside. "Crimes Related to
inducement of Foreign Aggression" is the crime of communicating
with aliens secretly to cause foreign aggression or menace.
Depending on a country, conspiracy is added to these. In Japan,
the application of "Crimes Related to Insurrection" was
considered about Aum Shinrikyo cult which caused religious
terrorism.
==In individual jurisdictions==
===Australia=== Section 80.1 of the Criminal Code, contained
in the schedule of the Australian Criminal Code Act 1995, defines
treason as follows:
A person is not guilty of treason under paragraphs (e), (f) or (h)
if their assistance or intended assistance is purely humanitarian
in nature.
The only permissible penalty for treason is life imprisonment.
Section 24AA of the Crimes Act 1914 creates the related offence
of treachery.
====New South Wales====
The Treason Act 1351, the Treason Act 1795 and the Treason Act
1817 form part of the law of New South Wales. The Treason Act
1795 and the Treason Act 1817 have been repealed by Section
11 of the Crimes Act 1900, except in so far as they relate to the
compassing, imagining, inventing, devising, or intending death or
destruction, or any bodily harm tending to death or destruction,
maim, or wounding, imprisonment, or restraint of the person of
the heirs and successors of King George III of the United
Kingdom, and the expressing, uttering, or declaring of such
compassings, imaginations, inventions, devices, or intentions, or
any of them.
Section 12 of the Crimes Act 1900 (NSW) creates an offence
which is derived from section 3 of the Treason Felony Act 1848:
Section 16 provides that nothing in Part 2 repeals or affects
anything enacted by the Treason Act 1351 (25 Edw.3 c. 2). This
section reproduces section 6 of the Treason Felony Act 1848.
====Victoria==== The offence of treason was created by

section 9A(1) of the Crimes Act 1958.


===Brazil=== According to Brazilian law, treason is the crime of
disloyalty by a citizen to the Federal Republic of Brazil, applying
to combatants of the Brazilian military forces. Treason during
wartime is the only crime for which a person can be sentenced to
death (see capital punishment in Brazil).
The only military person in the history of Brazil to be convicted of
treason was Carlos Lamarca, an army captain who deserted to
become the leader of a left-wing guerrilla against the military
dictatorship.
===Canada=== Section 46 of the Criminal Code has two
degrees of treason, called "high treason" and "treason." However,
both of these belong to the historical category of high treason, as
opposed to petty treason which does not exist in Canadian law.
Section 46 reads as follows:
High treason
(1) Every one commits high treason who, in Canada, :(a) kills or
attempts to kill Her Majesty, or does her any bodily harm tending
to death or destruction, maims or wounds her, or imprisons or
restrains her; :(b) levies war against Canada or does any act
preparatory thereto; or :(c) assists an enemy at war with
Canada, or any armed forces against whom Canadian Forces are
engaged in hostilities, whether or not a state of war exists
between Canada and the country whose forces they are. Treason
(2) Every one commits treason who, in Canada, :(a) uses force
or violence for the purpose of overthrowing the government of
Canada or a province; :(b) without lawful authority,
communicates or makes available to an agent of a state other
than Canada, military or scientific information or any sketch,
plan, model, article, note or document of a military or scientific
character that he knows or ought to know may be used by that
state for a purpose prejudicial to the safety or defence of
Canada; :(c) conspires with any person to commit high treason
or to do anything mentioned in paragraph (a); :(d) forms an
intention to do anything that is high treason or that is mentioned
in paragraph (a) and manifests that intention by an overt act;
or :(e) conspires with any person to do anything mentioned in
paragraph (b) or forms an intention to do anything mentioned in
paragraph (b) and manifests that intention by an overt act.
It is also illegal for a Canadian citizen or a person who owes

allegiance to Her Majesty in right of Canada to do any of the


above outside Canada.
The penalty for high treason is life imprisonment. The penalty for
treason is imprisonment up to a maximum of life, or up to 14
years for conduct under subsection (2)(b) or (e) in peacetime.
===Finland=== Finnish law distinguishes between two types of
treasonable offences: maanpetos, treachery in war, and
valtiopetos, an attack against the constitutional order. The terms
maanpetos and valtiopetos are unofficially translated as treason
and high treason, respectively. Both are punishable by
imprisonment, and if aggravated, by life imprisonment.
Maanpetos consists in joining enemy armed forces, making war
against Finland, or serving or collaborating with the enemy.
Maanpetos proper can only be committed under conditions of war
or the threat of war. Espionage, disclosure of a national secret,
and certain other related offences are separately defined under
the same rubric in the Finnish criminal code.
Valtiopetos consists in using violence or the threat of violence, or
unconstitutional means, to bring about the overthrow of the
Finnish constitution or to overthrow the president, cabinet or
parliament or to prevent them from performing their functions.
===France===
Article 411-1 of the French Penal Code defines treason as
follows:
The acts defined by articles 411-2 to 411-11 constitute treason
where they are committed by a French national or a soldier in the
service of France, and constitute espionage where they are
committed by any other person.
Article 411-2 prohibits "handing over troops belonging to the
French armed forces, or all or part of the national territory, to a
foreign power, to a foreign organisation or to an organisation
under foreign control, or to their agents". It is punishable by life
imprisonment and a fine of 750,000. Generally parole is not
available until 18 years of a life sentence have elapsed.
Articles 411-3 to 411-10 define various other crimes of
collaboration with the enemy, sabotage, and the like. These are
punishable with imprisonment for between thirty and seven
years. Article 411-11 make it a crime to incite any of the above
crimes.
Besides treason and espionage, there are many other crimes

dealing with national security, insurrection, terrorism and so on.


These are all to be found in Book IV of the code.
===Hong Kong=== Section 2 of the Crime Ordinance provides
that levying war against the HKSAR Government of the People's
Republic of China, conspiring to do so, instigating a foreigner to
invade Hong Kong, or assisting any public enemy at war with the
HKSAR Government, is treason, punishable with life
imprisonment.
===Germany=== German law differentiates between two types
of treason: "High treason" (Hochverrat) and "treason"
(Landesverrat). High treason, as defined in Section 81 of the
German criminal code is defined as a violent attempt against the
existence or the constitutional order of the Federal Republic of
Germany, carrying a penalty of life imprisonment or a fixed term
of at least ten years. In less serious cases, the penalty is 110
years in prison. German criminal law also criminalises high
treason against a German state. Preparation of either types of
the crime is criminal and carries a penalty of up to five years.
The other type of treason, Landesverrat is defined in Section 94.
It is roughly equivalent to espionage; more precisely, it consists
in betraying a secret either directly to a foreign power, or to
anyone not allowed to know of it; in the later case, treason is
only committed if the aim of the crime was explicitly to damage
the Federal Republic or to favor a foreign power. The crime
carries a penalty of one to fifteen years in prison. However, in
especially severe cases, life imprisonment or any term of at least
of five years may be sentenced.
As for many crimes with substantial threats of punishment active
repentance is to be considered in mitigation under 83a StGB
(Section 83a, Criminal Code).
Notable cases involving Landesverrat are the Weltbhne trial
during the Weimar Republic and the Spiegel scandal of 1962. On
30. July 2015, Germany's Public Prosecutor General Harald Range
initiated criminal investigation proceedings against the German
blog netzpolitik.org.
===Ireland===
Article 39 of the Constitution of Ireland (adopted in 1937) states:
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 the 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.
Following the enactment of the 1937 constitution, the Treason
Act 1939 provided for the imposition of the death penalty for
treason. The Criminal Justice Act 1990 abolished the death
penalty, setting the punishment for treason at life imprisonment,
with parole in not less than forty years. No person has been
charged under the Treason Act. Irish republican legitimatists who
refuse to recognise the legitimacy of the Republic of Ireland have
been charged with lesser crimes under the Offences against the
State Acts 19391998.
===Italy===
The Italian law defines various types of crimes that could be
generally described as treason (tradimento), although they are
so many and so precisely defined that no one of them is simply
called tradimento in the text of Codice Penale (Italian Criminal
Code). The treason-type crimes are grouped as "crimes against
the personhood of the State" (Crimini contro la personalit dello
Stato) in the Second Book, First Title, of the Criminal Code.
Articles 241 to 274 detail crimes against the "international
personhood of the State" such as "attempt against wholeness,
independence and unity of the State" (art.241), "hostilities
against a foreign State bringing the Italian State in danger of
war" (art.244), "bribery of a citizen by a foreigner against the
national interests" (art.246), and "political or military espionage"
(art.257).
Articles 276 to 292 detail crimes against the "domestic
personhood of the State", ranging from "attempt on the President
of the Republic" (art.271), "attempt with purposes of terrorism or
of subversion" (art.280), "attempt against the Constitution"
(art.283), "armed insurrection against the power of the State"
(art.284), and "civil war" (art.286).
Further articles detail other crimes, especially those of
conspiracy, such as "political conspiracy through association"
(art.305), or "armed association: creating and participating"
(art.306).
The penalties for treason-type crimes, before 1948, included
death as maximum penalty, and, for some crimes, as the only

penalty possible. Nowadays the maximum penalty is life


imprisonment (ergastolo).
===Japan=== Japan does not technically have a law of treason.
Instead it has an offence against taking part in foreign
aggression against the Japanese state (gaikan zai; literally "crime
of foreign mischief"). The law applies equally to Japanese and
non-Japanese people, while treason in other countries usually
applies only to their own citizens. Technically there are two laws,
one for the crime of inviting foreign mischief (Japan Criminal
Code section 2 clause 81) and the other for supporting foreign
mischief once a foreign force has invaded Japan. "Mischief" can
be anything from invasion to espionage. Before World War II,
Japan had a crime similar to the English crime of high treason
(Taigyaku zai), which applied to anyone who harmed the
Japanese emperor or imperial family. This law was abolished by
the American Occupation force after World War II.
===New Zealand=== New Zealand has treason laws that are
stipulated under the Crimes Act 1961. Section 73 of the Crimes
Act reads as follows:
Every one owing allegiance to Her Majesty the Queen in right of
New Zealand commits treason who, within or outside New
Zealand, :(a) Kills or wounds or does grievous bodily harm to
Her Majesty the Queen, or imprisons or restrains her; or :(b)
Levies war against New Zealand; or :(c) Assists an enemy at war
with New Zealand, or any armed forces against which New
Zealand forces are engaged in hostilities, whether or not a state
of war exists between New Zealand and any other country; or :
(d) Incites or assists any person with force to invade New
Zealand; or :(e) Uses force for the purpose of overthrowing the
Government of New Zealand; or :(f) Conspires with any person
to do anything mentioned in this section.
The penalty is life imprisonment, except for conspiracy, for which
the maximum sentence is 14 years imprisonment. Treason was
the last capital crime in New Zealand law, with the death penalty
not being revoked until 1989, years after it was abolished for
murder.
Very few people have been prosecuted for the act of treason in
New Zealand and none have been prosecuted in recent years.
===Russia=== Article 275 of the Criminal Code of Russia
defines treason as "espionage, disclosure of state secrets, or any

other assistance rendered to a foreign State, a foreign


organization, or their representatives in hostile activities to the
detriment of the external security of the Russian Federation,
committed by a citizen of the Russian Federation." The sentence
is imprisonment for 12 to 20 years. It is not a capital offence,
even though murder and some aggravated forms of attempted
murder are (although Russia currently has a moratorium on the
death penalty). Subsequent sections provide for further offences
against state security, such as armed rebellion and forcible
seizure of power.
===Sweden=== Sweden's treason laws have seen little
application in modern times. The most recent case was in 2001.
Four teenagers (their names were not reported) were convicted
of treason after they assaulted King Carl XVI Gustaf with a
cream-cake. The ringleader was fined 100 days' income; the
others were fined 80 days' income.
===Switzerland=== There is no single crime of treason in Swiss
law; instead, multiple criminal prohibitions apply. Article 265 of
the Swiss Criminal Code prohibits "high treason"
(Hochverrat/haute trahison) as follows:
Whoever commits an act with the objective of violently
changing the constitution of the Confederation or of a canton,
removing the constitutional authorities of the state from office
or making them unable to exercise their authority,
separating Swiss territory from the Confederation or territory
from a canton, shall be punished with imprisonment of no less
than a year.
A separate crime is defined in article 267 as "diplomatic treason"
(Diplomatischer Landesverrat/Trahison diplomatique):
1. Whoever makes known or accessible a secret, the preservation
of which is required in the interest of the Confederation, to a
foreign state or its agents, (...) shall be punished with
imprisonment of no less than a year.
2. Whoever makes known or accessible a secret, the preservation
of which is required in the interest of the Confederation, to the
public, shall be punished with imprisonment of up to five years or
a monetary penalty.
In 1950, in the context of the Cold War, the following prohibition
of "foreign enterprises against the security of Switzerland" was

introduced as article 266bis:


1 Whoever, with the purpose of inciting or supporting foreign
enterprises aimed against the security of Switzerland, enters into
contact with a foreign state or with foreign parties or other
foreign organizations or their agents, or makes or disseminates
untrue or tendentious claims (unwahre oder entstellende
Behauptungen / informations inexactes ou tendancieuses), shall
be punished with imprisonment of up to five years or a monetary
penalty.
2 In grave cases the judge may pronounce a sentence of
imprisonment of no less than a year.
The criminal code also prohibits, among other acts, the
suppression or falsification of legal documents or evidence
relevant to the international relations of Switzerland (art. 267,
imprisonment of no less than a year) and attacks against the
independence of Switzerland and incitement of a war against
Switzerland (art. 266, up to life imprisonment).
The Swiss military criminal code contains additional prohibitions
under the general title of "treason", which also apply to civilians,
or which in times of war civilians are also (or may by executive
decision be made) subject to. These include espionage or
transmission of secrets to a foreign power (art. 86); sabotage
(art. 86a); "military treason", i.e., the disruption of activities of
military significance (art. 87); acting as a franc-tireur (art. 88);
disruption of military action by disseminating untrue information
(art. 89); military service against Switzerland by Swiss nationals
(art. 90); or giving aid to the enemy (art. 91). The penalties for
these crimes vary, but include life imprisonment in some cases.
===Turkey=== Treason per se is not defined in the Turkish
Penal Code. However, the law defines crimes which are
traditionally included in the scope of treason, such as cooperating
with the enemy during wartime. Treason is punishable by
imprisonment up to life.
===United Kingdom===
The British law of treason is entirely statutory and has been so
since the Treason Act 1351 (25 Edw. 3 St. 5 c. 2). The Act is
written in Norman French, but is more commonly cited in its
English translation.
The Treason Act 1351 has since been amended several times,

and currently provides for four categories of treasonable


offences, namely:
* "when a man doth compass or imagine the death of our lord
the King, or of our lady his Queen or of their eldest son and
heir"; * "if a man do violate the King's companion, or the King's
eldest daughter unmarried, or the wife of the King's eldest son
and heir"; * "if a man do levy war against our lord the King in his
realm, or be adherent to the King's enemies in his realm, giving
to them aid and comfort in the realm, or elsewhere"; and * "if a
man slea the chancellor, treasurer, or the King's justices of the
one bench or the other, justices in eyre, or justices of assise, and
all other justices assigned to hear and determine, being in their
places, doing their offices".
Another Act, the Treason Act 1702 (1 Anne stat. 2 c. 21),
provides for a fifth category of treason, namely:
* "if any person or persons ... shall endeavour to deprive or
hinder any person who shall be the next in succession to the
crown ... from succeeding after the decease of her Majesty
(whom God long preserve) to the imperial crown of this realm
and the dominions and territories thereunto belonging".
By virtue of the Treason Act 1708, the law of treason in Scotland
is the same as the law in England, save that in Scotland the
slaying of the Lords of Session and Lords of Justiciary and
counterfeiting the Great Seal of Scotland remain treason under
sections 11 and 12 of the Treason Act 1708 respectively. Treason
is a reserved matter about which the Scottish Parliament is
prohibited from legislating. Two acts of the former Parliament of
Ireland passed in 1537 and 1542 create further treasons which
apply in Northern Ireland.
The penalty for treason was changed from death to a maximum
of imprisonment for life in 1998 under the Crime And Disorder
Act. Before 1998, the death penalty was mandatory, subject to
the royal prerogative of mercy. Since the abolition of the death
penalty for murder in 1965 an execution for treason was unlikely
to have been carried out.
Treason laws were used against Irish insurgents before Irish
independence. However, members of the Provisional IRA and

other militant republican groups were not prosecuted or executed


for treason for levying war against the British government during
the Troubles. They, along with members of loyalist paramilitary
groups, were jailed for murder, violent crimes or terrorist
offences. William Joyce ("Lord Haw-Haw") was the last person to
be put to death for treason, in 1946. (On the following day
Theodore Schurch was executed for treachery, a similar crime,
and was the last man to be executed for a crime other than
murder in the UK.)
As to who can commit treason, it depends on the ancient notion
of allegiance. As such, all British nationals (but not other
Commonwealth citizens) owe allegiance to the Queen in right of
the United Kingdom wherever they may be, as do
Commonwealth citizens and aliens present in the United Kingdom
at the time of the treasonable act (except diplomats and foreign
invading forces), those who hold a British passport however
obtained, and aliens who having lived in Britain and gone
abroad again have left behind family and belongings.
====International influence==== The Treason Act 1695
enacted, among other things, a rule that treason could be proved
only in a trial by the evidence of two witnesses to the same
offence. Nearly one hundred years later this rule was
incorporated into the U.S. Constitution, which requires two
witnesses to the same overt act. It also provided for a three-year
time limit on bringing prosecutions for treason (except for
assassinating the king), another rule which has been imitated in
some common law countries. The Sedition Act 1661 made it
treason to imprison, restrain or wound the king. Although this
law was abolished in the United Kingdom in 1998, it still
continues to apply in some Commonwealth countries.
===United States=== In the 1790s, opposition political parties
were new and not fully accepted. Government leaders often
considered their opponents to be some sort of traitors. Historian
Ron Chernow reports that Secretary of the Treasury Alexander
Hamilton and President George Washington "regarded much of
the criticism fired at their administration as disloyal, even
treasonous, in nature." When an undeclared Quasi-War broke out
with France in 1797-98, "Hamilton increasingly mistook dissent
for treason and engaged in hyperbole." Furthermore, the
Jeffersonian opposition party behaved the same way. After 1801,
with a peaceful transition in the political party in power, the

rhetoric of "treason" against political opponents diminished.


Vermont is the only U.S. state to have abolished capital
punishment for all crimes except treason.
====Federal====
To avoid the abuses of the English law, treason was specifically
defined in the United States Constitution, the only crime so
defined. Article III, section 3 reads as follows:
Treason against the United States, shall consist only in levying
War against them, or in adhering to their Enemies, giving them
Aid and Comfort. No Person shall be convicted of Treason unless
on the Testimony of two Witnesses to the same overt Act, or on
Confession in open Court.
The Congress shall have Power to declare the Punishment of
Treason, but no Attainder of Treason shall work Corruption of
Blood, or Forfeiture except during the Life of the Person
attainted.
However, Congress has passed laws creating related offenses
that punish conduct that undermines the government or the
national security, such as sedition in the 1798 Alien and Sedition
Acts, or espionage and sedition in the 1917 Espionage Act, which
do not require the testimony of two witnesses and have a much
broader definition than Article Three treason. Some of these laws
are still in effect. Some well-known spies have been convicted of
espionage rather than treason.
The Constitution does not itself create the offense; it only
restricts the definition (the first paragraph), permits Congress to
create the offense, and restricts any punishment for treason to
only the convicted (the second paragraph). The crime is
prohibited by legislation passed by Congress. Therefore, the
United States Code at states "whoever, owing allegiance to the
United States, levies war against them or adheres to their
enemies, giving them aid and comfort within the United States or
elsewhere, is guilty of treason and shall suffer death, or shall be
imprisoned not less than five years and fined under this title but
not less than $10,000; and shall be incapable of holding any
office under the United States." The requirement of testimony of
two witnesses was inherited from the British Treason Act 1695.
====Historical cases==== One of American history's most
notorious traitors is Benedict Arnold, whose name is considered

synonymous with the definition of traitor due to his collaboration


with the British during the American Revolutionary War. However,
this occurred before the Constitution was written. Arnold became
a general in the British Army, which protected him.
Since the Constitution came into effect, there have been fewer
than 40 federal prosecutions for treason and even fewer
convictions. Several men were convicted of treason in connection
with the 1794 Whiskey Rebellion but were pardoned by President
George Washington.
=====Burr trial=====
The most famous treason trial, that of Aaron Burr in 1807
resulted in acquittal. In 1807, on a charge of treason, Burr was
brought to trial before the United States Circuit Court at
Richmond, Virginia. The only physical evidence presented to the
grand jury was Wilkinson's so-called letter from Burr, which
proposed the idea of stealing land in the Louisiana Purchase. The
trial was presided over by Chief Justice of the United States John
Marshall, acting as a circuit judge. Since no two witnesses
testified Burr was acquitted, in spite of the full force of the
Jefferson administration's political influence thrown against him.
Immediately afterward, Burr was tried on a misdemeanor charge
and was again acquitted. Politically motivated attempts to convict
opponents of the Jeffersonian Embargo Acts and the Fugitive
Slave Law of 1850 all failed.
=====Civil War===== During the American Civil War, treason
trials were held in Indianapolis against Copperheads for
conspiring with the Confederacy against the United States. After
the war the question was whether the United States government
would make indictments for treason against leaders of the
Confederate States of America , as many people demanded.
Jefferson Davis, the Confederate president, was indicted and held
in prison for two years. The indictment was dropped in 1869
when the political scene had changed and it was possible he
would be acquitted by a jury in Virginia. When accepting Lee's
surrender of the Army of Northern Virginia, at Appomattox, in
April 1865, Gen. Ulysses S. Grant assured all Confederate
soldiers and officers a blanket amnesty, provided they returned
to their homes and refrained from any further acts of hostility,
and subsequently other Union generals issued similar terms of
amnesty when accepting Confederate surrenders. All Confederate
officials received a blanket amnesty issued by President Andrew

Johnson as he left office in 1869.


=====World War 2===== In 1949 Iva Toguri D'Aquino was
convicted of treason for wartime radio broadcasts (under the
name of "Tokyo Rose"), and sentenced to ten years, of which she
served six. As a result of prosecution witnesses having lied on
oath, she was pardoned in 1977.
In 1952 Tomoya Kawakita, a Japanese-American dual citizen was
convicted of treason and sentenced to death for having worked
as an interpreter at a Japanese POW camp and having mistreated
American prisoners. He was recognized by a former prisoner at a
department store in 1946 after having returned to the United
States. The sentence was later commuted to life imprisonment
and a $10,000 fine. He was released and deported in 1963.
=====Cold War and after===== The Cold War saw frequent
talk linking treason with support for Communist-led causes. The
most memorable of these came from Senator Joseph McCarthy,
who used rhetoric about the Democrats as guilty of "twenty years
of treason." As chosen chair of the Senate Permanent
Investigations Subcommittee, McCarthy also investigated various
government agencies for Soviet spy rings (see the Venona
project); however, he acted as a political fact-finder rather than a
criminal prosecutor. The Cold War period saw no prosecutions for
explicit treason, but there were convictions and even executions
for conspiracy to commit espionage on behalf of the Soviet
Union, such as in the Julius and Ethel Rosenberg case.
On October 11, 2006, the United States government charged
Adam Yahiye Gadahn for videos in which he appeared as a
spokesman for al-Qaeda and threatened attacks on American
soil. He was killed on January 19, 2015 in an unmanned aircraft
(drone) strike in Waziristan, Pakistan.
=====Treason against American states===== Most states
have treason provisions in their constitutions or statutes similar
to those in the U.S. Constitution. The Extradition Clause
specifically defines treason as an extraditable offense.
Thomas Jefferson in 1791 said that any Virginia official who
cooperated with the federal Bank of the United States proposed
by Alexander Hamilton was guilty of "treason" against the state
of Virginia and should be executed. The Bank opened and no one
was prosecuted.
Only three persons are known to have been prosecuted for
treason on the state level. Thomas Dorr was convicted for

treason against the state of Rhode Island for his part in the Dorr
Rebellion, but was eventually amnestied. John Brown was
convicted of treason against the Commonwealth of Virginia for
his part in the raid on Harpers Ferry, and was hanged. The
Mormon prophet, Joseph Smith, was charged with treason
against Missouri, at first in front of a state military court, but
escaped to Illinois after his case was transferred to a civilian
court for trial on charges of treason, murder, robbery, and other
crimes. Smith was then later imprisoned for trial on charges of
treason against Illinois, but was murdered by a lynch mob while
in jail awaiting trial.
===Muslim countries=== Early in Islamic history, the only form
of treason was seen as the attempt to overthrow a just
government or waging war against the State. According to
Islamic tradition, the prescribed punishment ranged from
imprisonment to the severing of limbs and the death penalty
depending on the severity of the crime. However, even in cases
of treason the repentance of a person would have to be taken
into account.
Currently, the consensus among major Islamic schools is that
apostasy (leaving Islam) is considered treason and that the
penalty is death; this is supported not in the Quran but in the
Hadith. This confusion between apostasy and treason almost
certainly had its roots in the Ridda Wars, in which an army of
rebel traitors led by the self-proclaimed prophet Musaylima
attempted to destroy the caliphate of Abu Bakr.
In the 19th and early 20th century, the Iranian Cleric Sheikh
Fazlollah Noori opposed the Iranian Constitutional Revolution by
inciting insurrection against them through issuing Fatwahs and
publishing pamphlets arguing democracy will bring vice to the
country. The new government executed him for treason in 1909.
In Malaysia, it is treason to commit offences against the Yang diPertuan Agong's person, waging, attempting to wage war or
abetting the waging of war against the Yang di-Pertuan Agong, a
Ruler or Yang di-Pertua Negeri. All these offences are punishable
by hanging, which derives from the English treason acts (a
former British colony, Malaysia's legal system is based on English
common law).
====Algeria====
In Algeria, treason is defined as the following: * attempts to
change the regime or actions aimed at incitement * destruction

of territory, sabotage to public and economic utilities *


participation in armed bands or in insurrectionary movements
====Bahrain==== In Bahrain, plotting to topple the regime,
collaborating with a foreign hostile country and threatening the
life of the Emir are defined as treason and punishable by death.
The State Security Law of 1974 was used to crush dissent that
could be seen as treasonous, which was criticised for permitting
severe human rights violations in accordance with Article One:
If there is serious evidence that a person has perpetrated acts,
delivered statements, exercised activities, or has been involved in
contacts inside or outside the country, which are of a nature
considered to be in violation of the internal or external security of
the country, the religious and national interests of the State, its
social or economic system; or considered to be an act of sedition
that affects or can possibly affect the existing relations between
the people and Government, between the various institutions of
the State, between the classes of the people, or between those
who work in corporations propagating subversive propaganda or
disseminating atheistic principles; the Minister of Interior may
order the arrest of that person, committing him to one of
Bahrain's prisons, searching him, his residence and the place of
his work, and may take any measure which he deems necessary
for gathering evidence and completing investigations.
The period of detention may not exceed three years. Searches
may only be made and the measures provided for in the first
paragraph may only be taken upon judicial writ.
====Palestinian territories====
In the areas controlled by the Palestinian National Authority, it is
treason to give assistance to Israeli troops without the
authorization of the Palestinian Authority or to sell land to Jews
(irrespective of nationality) and also non-Jewish Israeli citizens
under the Palestinian Land Laws, as part of the PA's general
policy of discouraging the expansion of Israeli settlements. Both
crimes are capital offences subject to the death penalty, although
the former provision has not often been enforced since the
beginning of effective security cooperation between the Israel
Defense Forces, Israel Police, and Palestinian National Security
Forces since the mid-2000s (decade) under the leadership of
Prime Minister Salam Fayyad. Likewise, in the Gaza Strip under

the Hamas led government, any sort of cooperation or assistance


to Israeli forces during military actions is also punishable by
death.
==List of people convicted by country==
==Related offences== There are a number of other crimes
against the state short of treason: * Apostasy in Islam is
considered treason in Islamic belief. * Compounding treason is
dropping a prosecution for treason in exchange for money or
money's worth. * Defection, or leaving the country, is regarded in
some communist countries (especially during the Cold War) as
disloyal to the state. * Espionage or spying. * Lse majest is
insulting a head of state and is a crime in some countries. *
Misprision of treason is a crime consisting of the concealment of
treason. * Sedition is inciting civil unrest or insurrection, or
undermining the government. * Treachery, the name of a number
of derivative offences. * Treason felony, a British offence
tantamount to treason.
==See also== * Betrayal * Constructive treason
===Terms for traitors=== Different cultures have evolved a
variety of terms for "traitor" or collaborator, often based on
historical incidences of treason to that culture or of people whose
name has become a byword for treason.
*Quisling *Malinchism *Hanjian *Jash (term) *Mir Jafar
*Benedict Arnold *Judas
==References==
==Further reading== * Elaine Shannon and Ann Blackman, The
Spy Next Door : The Extraordinary Secret Life of Robert Philip
Hanssen, The Most Damaging FBI Agent in US History, Little,
Brown and Company, 2002, ISBN 0-316-71821-1 * Ben-Yehuda,
Nachman, "Betrayals and Treason. Violations of trust and
Loyalty." Westview Press, 2001, ISBN 0-8133-9776-6 *
Longaigh, Seosamh, "Emergency Law in Independent Ireland,
19221948", Four Courts Press, Dublin 2006 ISBN 1-85182-9229
==External links==
* [http://www.stephen-stratford.co.uk/spying.htm British
Treason Law] *
[http://www.hsgac.senate.gov/subcommittees/investigations
Permanent Subcommittee on Investigations], Official site
https://what-is-this.net/en/define/treason

Statutory Review of Irish Defamation Law (08/11/2016)


The Department of Justice and Equality announced on 1 November that it will
review the impact of the defamation reforms introduced in 2009.
The objective of defamation law is to strike a balance between the
constitutional rights of a company or individual to a good reputation and the
right to freedom of expression. Achieving this balance has become
increasingly difficult with the explosion of digital media providing multiple
platforms for numerous parties to express their views and opinions, often
without the rigours imposed by traditional media outlets.
The Department's announcement takes place against a backdrop of growing
media criticism at the level of defamation awards in Ireland, particularly
when compared with those obtained in similar jurisdictions such as the UK.
However, it must be borne in mind that, in general, those high profile Irish
defamation awards relate to claims determined under the law applicable prior
to the enactment of the 2009 Act. These are not an accurate reflection of
the current system which now allows judges give directions to a jury
regarding the appropriate level of damages.
This review does not include the statutory offence of blasphemy as it will be
subject of a constitutional referendum pursuant to the Programme for a
Partnership Government.
Although the Department is seeking submissions as part of the public
consultation process by 31 December 2016 no commitment has yet been
given in relation to the publication of a revised Act which would further
reform Irish defamation law.
For further information please contact Mark O'Shaughnessy.
Date Published: 8 November 2016

Offences against the State Act 1939 and ... 39 of the


Offences against the State Act, ... Criminal Court under
part V of the Offences against
Patrick Holland v. Ireland, Communication No. 593/1994 ,
U.N. Doc. CCPR/C/58/D/593/1994 (1996).
Decision of the Human Rights Committee under the Optional
Protocol
to the International Covenant on Civil and Political Rights
- Fifty-eighth session -

concerning
Communication No. 593/1994 *
Submitted by: Patrick Holland
Victim: The author
State party: Ireland
Date of communication: 8 June 1994 (initial submission)
The Human Rights Committee, established under article 28
of the International Covenant on Civil and Political Rights,
Meeting on 25 October 1996,
Adopts the following:
Decision on admissibility
1. The author of the communication is Patrick Holland, an
Irish citizen, born on 12 March 1939, at the time of
submission of the communication serving a prison term in
Ireland. He claims to be a victim of a violation by Ireland of
articles 14 and 26 of the Covenant. Both the Covenant and
the Optional Protocol entered into force for Ireland on 8
March 1990.
The facts as submitted by the author
2.1 The author was arrested on 6 April 1989 under section
30 of the Offences against the State Act 1939 and charged
with possession of explosives for unlawful purposes. He was
tried on 27 June 1989 by a Special Criminal Court, together
with four co-defendants, found guilty and sentenced to ten
years' imprisonment. On appeal against sentence, the Court
of Appeal, on 21 May 1990, reduced the sentence to seven
years' imprisonment, considering that the judgment of the

Special Court might give the impression that he was


convicted of a more serious charge, namely of possession of
explosives for enabling others to endanger life. The author
was released from prison on 27 September 1994.
2.2 At the trial before the Special Criminal Court, the author
pleaded guilty of the charge, allegedly because his lawyer
had told him that "in this court, they are going to believe the
police" and that his sentence would be heavier if he would
plead not guilty. In this context, the author states that one of
his co-accused who pleaded not-guilty was indeed sentenced
to a longer term of imprisonment.
2.3 The author submits that there was no evidence against
him, but that the police claimed that he had admitted to
them that he knew about the explosives in his house. No
tape recording of the author's alleged confession was
provided; he did not sign any confession.
2.4 The author explains that in April 1989, an acquaintance
of his, A.M., stayed with him in his house, having come from
England to inquire into the possibilities of renting a
restaurant or pub. On 3 April 1989, they were joined by P.W.,
a friend of A.M., who had come to Dublin to attend a court
hearing. The author states that he did not know P.W. before,
but that he allowed him to stay at his house. The author,
who had his own printing business, worked most of the time,
only coming home to sleep or eat. At lunchtime on 6 April
1989, the police raided his house, and arrested him, A.M.
and P.W. and a fourth acquaintance, a former colleague, who
was visiting the author. Explosives were found in a black
bag, but the author denies having had knowledge of their
presence.
The complaint
3.1 The author claims that the trial against him was unfair,
because the Special Criminal Court does not constitute an
independent and impartial tribunal, in violation of article 14,

paragraph 1, of the Covenant. In this connection, the author


explains that the Irish constitution permits the establishment
of "special courts" for the trial of offences in cases where it is
determined that the ordinary courts are inadequate to
secure the effective administration of justice and the
preservation of public peace and order. The author points out
that it is the Government who decides which cases are to be
brought before a special court. The author quotes from
section 39 of the Offences against the State Act, which
provides that members of special courts are appointed and
removed at will by the Government. The remuneration, if
any, is determined by the Ministry for Finance. Members of
special courts need not be members of the judiciary;
barristers and solicitors of at least seven years standing and
high ranking officers of the Defence Forces may also be
appointed.
3.2 The author contends that the special courts represent a
threat to the equality of treatment of those accused of
crimes, because the independence of the members of such
courts is not protected. In this context, the author refers to
the judgment in his case, which appeared to sentence him
for a more serious offence that for which he had been
charged.
3.3 The author further alleges that he was discriminated
against in the prison system because he "fought for his
rights" through the courts in order to have his proper
entitlement to parole established. He states that two of his
co-accused, who received the same sentence, were moved
to an open prison in 1992 and early 1993, whereas the
author was only moved to an open prison in the beginning of
1994. The author points out that regular weekend home
visits are allowed from an open prison, whereas he was
unable to obtain permission to visit his sister in hospital
before she died on 22 December 1993; he was granted
parole from 22 to 27 December 1993, after she had already
died.

State party's submission and the author's comments


4.1 By submission of 5 December 1994, the State party
argues that the communication is inadmissible ratione
temporis, since the substance of the author's complaint
relates to his trial in the Special Criminal Court on 27 June
1989, that is before the entry into force of the Covenant and
its Optional Protocol for Ireland.
4.2 The State party further argues that the communication is
inadmissible for failure to exhaust domestic remedies. The
State party notes that the essence of the author's claim is
that he did not receive a fair trial before an independent and
impartial tribunal and that he claims that he was innocent of
the offences with which he was charged. However, the
author withdrew his plea of not guilty, leaving the trial court
with no option but to accept his acknowledgement and
sentence him accordingly. The State party submits that he
might have been acquitted, had he pleaded not guilty. It
contests the author's suggestion that persons tried in the
Special Criminal Courts are invariably convicted.
4.3 The State party further submits that the author failed to
request the judges of the Special Court to disqualify
themselves on the grounds that they were not independent
and impartial. In this connection, the State party notes that
the author, in fact, has not alleged any bias against the
judges of the court which tried him. His argument seems to
be that by virtue of the method of appointment and
dismissal of the members of the Court a lack of
independence and impartiality could arise, not that it did.
4.4 The State party explains that the Special Court is subject
to control through judicial review by the High Court. A person
who alleges a breach of the constitution or of natural justice
can seek an order from the High Court quashing a decision
by the Special Criminal Court or prohibiting it from acting
contrary to the Constitution or to the rules of natural justice.
If the author would have had reason to argue that he had not

received a fair trial in the Special Court, he could therefore


have sought an order of judicial review from the High Court,
which he failed to do.
4.5 In this context, the State party refers to the Supreme
Court's decision in the Eccles case 1, where it was held that
the Government could not lawfully terminate the
appointment of individual members of the Special Court for
disagreeing with their decisions. The Court found that
whereas the express constitutional guarantees of judicial
independence did not apply to the Special Court, it enjoyed a
derived guarantee of independence in carrying out its
function.
4.6 The State party also argues that it would have been open
to the author to argue at the hearing of his appeal that his
conviction was defective by reason of lack of independence
of the judges. The State party notes that the author,
however, failed to appeal against his conviction and made no
allegation that the Special Court was biased or lacked
independence.
4.7 Further, the State party argues that the author has not
shown that he is personally a victim of the violation alleged.
The State party refers to the author's argument that under
the applicable legislation the independence of the court
cannot be guaranteed. The State party submits that this is
an argument of an actio popularis, since the author does not
argue that the judges who tried him did in fact lack
independence or that they were biased against him, nor
does he specify any shortcoming in the proceedings. In this
context, the State party refers to the decision by the
European Commission on Human Rights in the Eccles case 2,
which found that the Special Court was independent within
the meaning of article 6 of the European Convention.
4.8 The State party explains that article 38 of the
Constitution provides that special courts may be established
by law for the trial of offences in cases where it may be

determined in accordance with such law that the ordinary


courts are inadequate to secure the effective administration
of justice and the preservation of public peace and order.
The Offences against the State Act, 1939, provides for the
establishment of such special courts, if the Government is
satisfied that the ordinary courts are inadequate to secure
the effective administration of justice and the preservation of
public peace and order and publishes a proclamation
accordingly. Any such Government proclamation may be
annulled by resolution of the Lower House of Parliament. A
Special Criminal Court was first established in 1939 and
remained in existence until 1962. In 1972, due to the
situation arising from the troubles in Northern Ireland, the
Special Criminal Court was re-established.
4.9 Section 39 of the Offences against the State Act
regulates the appointment of members to the Court. The
State party underlines that with few exceptions the members
of the Special Criminal Court since 1972 have been judges of
ordinary courts at the times of their appointment, and that
since 1986 the Court has been comprised only of serving
judges. No members of the Defence Forces have been
appointed to the Court since its establishment in 1972.
4.10 Section 40 of the Act provides that the determination of
the Special Criminal Court is to be according to the opinion
of the majority and that individual opinions are not to be
disclosed. Pursuant to section 44 of the Act convictions or
sentences of a Special Criminal Court are subject to appeal
to the Court of Criminal Appeal in the same way as
convictions and sentences of the Central Criminal Court.
There are no rules of evidence applying to the Special
Criminal Court which do not apply to the ordinary courts,
apart for provisions permitting the taking of evidence on
commission in Northern Ireland.
4.11 Finally, the State party informs the Committee that the
Court before which the author was tried consisted of a judge
of the High Court, a judge of the Circuit Court and a District

Justice. The State party adds that it is not aware of any


challenge to the members' personal impartiality and
independence.
5.1 On 8 February 1995, the author provides his comments
on the State party's submission. He reiterates that members
of the Special Court can be dismissed at will by the
Government and that there is therefore no guarantee for
their independence and impartiality.
5.2 As to the State party's argument that his communication
is inadmissible for non-exhaustion of domestic remedies
because he withdrew his plea of not guilty, the author
explains that after he had pleaded not guilty, his barrister
asked the Court for a short recess. He then came to see him
and advised him to plead guilty, since he was before the
Special Criminal Court and a not guilty plea would result in a
12 years' sentence. Consequently, he pleaded guilty.
5.3 As regards the State party's argument that he failed to
ask the judges of the trial court to disqualify themselves,
that he failed to have the trial proceedings quashed by
judicial review and that he failed to appeal against his
conviction or to raise the alleged lack of independence of the
court as a ground of appeal, the author states that he could
not have done any of these things because his own defence
counsel had already told him to plead guilty and he himself
had not yet learned about United Nations human rights
treaties. The author recalls that as a layman he was
depending on his legal advisers, who let him down and never
raised these issues. In this connection, the author states that
he knows of a lot of people who stood up and did not
recognise the court and then were sentenced for that alone.
Further submission from the State party
6.1 Upon request of the Committee, the State party, in a
further submission of 2 July 1996, comments on the
admissibility of the author's claim that he had been

discriminated against in the prison system, and explains the


legislation and practice surrounding the decision to bring the
author's case before the Special Criminal Court.
6.2 As regards the author's claim that he is a victim of
discrimination, the State party confirms that the two coaccused who were sentenced to six years' imprisonment
were moved to an open prison prior to the completion of
their sentences and that the author and one other coaccused remained in a closed institution until their release.
The State party explains further that the co-accused moved
to an open prison received the standard 25% remission of
their sentences and were released about six months early.
The third co-accused spent the duration of his sentence in a
high security facility and was released 36 days prior to his
release date.
6.3 The State party explains that the author was considered
for a transfer to an open prison, but that, since the author
had friends and relatives in Dublin, and all the open facilities
were outside the Dublin area, it was decided that it would be
better if he stayed in a closed institution in Dublin. The
author was offered early release from 27 June 1994, that is
three months prior to his release date. However, he declined
to leave prison as he had nowhere to live. He was
subsequently released on 22 September 1994, four days
early.
6.4 The State party submits that transfers from a closed to
an open prison are benefits accorded certain prisoners on
the basis of their records, home addresses and other
relevant considerations, but that it is not a right to which all
prisoners are equally entitled. Reference is made to the
Judgment of the European Court of Human Rights in the
Ashingdane case (14/1983/70/106).
6.5 It is further submitted that the author was not treated
differently from others, but that the decision to keep the
author in a closed institution in Dublin was taken, as were

the decisions to transfer two of his co-accused to an open


institution outside Dublin, by reference to their personal and
family circumstances and were intended to facilitate
communication between the detainees and persons close to
them. Moreover, it is submitted that, might the Committee
nevertheless find that the author was treated differently, this
treatment was based on reasonable and objective criteria
and did not amount to discrimination.
6.6 The State party argues that the communication is
inadmissible under article 3 of the Optional Protocol, for
being incompatible with the provisions of the Covenant.
Further, it is argued that the author's claim is inadmissible
for non-exhaustion of domestic remedies, since it was open
to the author to seek judicial review of the order made by
the minister of Justice to transfer him to Whatefield
Detention Centre in Dublin and not to an open prison. It was
also open to the author to institute proceedings for alleged
breach of constitutional rights, since the Constitution in
article 10.1 protects the right of all citizens to be held equal
before the law. It is submitted that the author never availed
himself of any of the remedies open to him.
7.1 As regards the procedures of deciding whether a case
will be tried before a Special Criminal Court, the State party
explains that the Director of Public Prosecutions decides in
accordance with law whether a case will be tried by the
ordinary Criminal Courts or by the Special Criminal Court
under part V of the Offences against the State Act. The
Director is independent of the Government and the police in
the discharge of his functions. The Offences against the
State Act provides for certain offences to be scheduled under
that Act. Where a person is charged with a scheduled
offence, the Director of Public Prosecutions, under section
47(1) of the Act, may have that person brought before the
Special Criminal Court to be tried on such offence. The
author was charged with possession of explosive substances
for an unlawful object, a scheduled indictable offence in
accordance with section 47(1) of the Act.

7.2 A panel of nine judges, appointed by the Government


and all being judges of the High Court, Circuit Court or
District Court, is available to hear cases in the Special
Criminal Court. The designation of members to hear a case is
exclusively a matter for the judges of the panel to decide.
The State party strongly refutes any suggestion that the
judges of the Special Criminal Court lack independence or
would have been biased against the author.
7.3 The State party explains that the decision to charge the
author with the offence in question, as well as the decision to
refer the author's case to the Special Criminal Court, was
based on an assessment of the available evidence that was
made known to the Director of Public Prosecutions by the
Irish police.
7.4 The State party explains that the institution of the
Special Criminal Court can be challenged since it is subject
to constitutional scrutiny. It is also possible to challenge the
constitutionality of various aspects of the legislation relating
to the Special Criminal Court. Several such challenges have
been undertaken. The author however did not attempt to
initiate any proceedings in this respect.
7.5 The State party explains that it is also possible to
challenge the referral of a case to the Special Criminal Court
through judicial review of the Director of Public Prosecutions'
decision. However, the relevant case law all relates to
situations where the accused had been charged with a nonscheduled offence and the Director decided that he or she be
tried before the Special Criminal Court. In availing himself of
this remedy, the author would have had to show that the
Director of Public Prosecutions had acted with mala fides.
7.6 The State party reiterates that the communication should
be declared inadmissible.
Author's comments on the State party's submission

8.1 In his comments on the State party's submission, the


author emphasizes that his main complaint is that the
Special Criminal Court was illegal, because it was set up
without making an application under article 4, paragraph 3,
of the Covenant. He contends that there is no escaping a
conviction before the Special Court and reiterates that when
he pleaded not guilty, his solicitor told him that his sentence
would be lower with a guilty plea, upon which he changed
his plea.
8.2 The author reiterates that he was not allowed to leave
prison in time to visit his dying sister in December 1993, but
that he was only given leave after she died, to attend her
funeral.
Issues and proceedings before the Committee
9.1 Before considering any claim contained in a
communication, the Human Rights Committee must, in
accordance with rule 87 of its rules of procedure, decide
whether or not it is admissible under the Optional Protocol to
the Covenant.
9.2 The Committee has taken note of the State party's
argument that the communication is inadmissible ratione
temporis. The Committee refers to its prior jurisprudence
and reiterates that it is precluded from considering a
communication if the alleged violations occurred before the
entry into force of the Covenant for the State party
concerned, unless the alleged violations continue or have
continuing effects which in themselves constitute a violation.
The Committee notes that, although the author was
convicted and sentenced at first instance in June 1989, that
is before the entry into force of the Covenant for Ireland, his
appeal was dismissed on 21 May 1990, that is after the entry
into force of the Covenant for Ireland, and his imprisonment
lasted until August 1994. In the circumstances, the
Committee is not precluded ratione temporis from

considering the author's communication.


9.3 As regards the author's claim that he did not receive a
fair trial because he was tried before a Special Criminal
Court, which was established in violation of article 14 of the
Covenant, the Committee notes that the author pleaded
guilty to the charge against him, that he failed to appeal his
conviction, and that he never raised any objections with
regard to the impartiality and independence of the Special
Court. In this context, the Committee notes that the author
was represented by legal counsel throughout and that it
appears from the file that he made use of his right to petition
the High Court with regard to other issues but did not raise
the aforesaid issue. In the circumstances, the Committee
finds that the author has failed to fulfil the requirement of
article 5, paragraph 2(b), of the Optional Protocol, to exhaust
available domestic remedies.
9.4 As regards the author's claim that he was discriminated
against because he was not transferred to an open prison at
the same time as his co-accused, the Committee notes that
the State party has argued, and the author has not denied,
that it would have been open to the author to seek judicial
review of this decision. In the circumstances, the Committee
considers that this claim is also inadmissible under article 5,
paragraph 2(b), of the Optional Protocol, for non-exhaustion
of domestic remedies.
10. The Human Rights Committee therefore decides:
(a) that the communication is inadmissible;
(b) that this decision shall be communicated to the State
party and to the author.
[Adopted in English, French and Spanish, the English text
being the original version.]

http://hrlibrary.umn.edu/undocs/html/

IDEC5935.htm
IRELANDTimeline
IRELAND 1937 - 1949. ... President of Ireland elected
under the 1937 constitution. ... the Offences Against the
State Act making treason
1937December 29 The new constitution written by Eamon
de Valera comes into effect. The Irish Free State is officially
renamed Eire in Gaelic and in English simply, Ireland. The
charter abolishes the Oath of Allegiance to the Crown,
replaces the office of Governor General with a President,
makes Gaelic the first official language, recognizes the
special position of the Roman Catholic Church as the
guardian of the faith professed by the great majority of the
citizens.(also recognizes the Church of Ireland, the
Presbyterian Church in Ireland, the Methodist Church in
Ireland, the Religious Society of Friends in Ireland, as well as
the Jewish Congregations and the other religious
denominations existing in Ireland), prohibits the state from
granting divorce and claims the whole island of Ireland and
surrounding waters as the national territory.
A Presidential Commission headed by Frank Fahy is
appointed to exercise the functions of the office until an
election can be held to fill the office.
1938January De Valera and British Prime Minister Neville
Chamberlain begin talks to end the Economic War. De Valera
supports Chamberlains policy of appeasement during his
tenure as President of the 13th (and last) Assembly of the
League of Nations.
February 9
General election in Northern
Ireland:UNIONISTS 39, NATIONALISTS 8, LABOUR 2,
INDEPENDENTS 1
March 31 Frank Ryan,leader of the Connolly Column of the
International Brigades is captured and imprisoned by Italian
fascists at Calaceite, Spain.
April 25 The Anglo-Irish Accords are signed. The British
Admiralty transfers its rights and property at Berehaven and
the harbor defenses at Berehaven, Cobh and Lough Swilly to

the Government of Ireland. The Irish Government agrees to


pay Great Britain 10,000,000 in final settlement of claims
for land annuities. Both governments agree to end the
retaliatory duties imposed on each others products after the
suspension of land annuity payments by the Irish
Government in 1932.
June 15 Frank Ryan, leader of the Connolly Column of the
International Brigades, is tried, convicted and sentenced to
death for war crimes by a Nationalist court-martial in Burgos,
Spain.
June 17 General election: A single party, Prime Minister de
Valeras Fianna Fail, wins a majority of the total votes cast for
the only time in the history of Dail elections to gain an
absolute majority in the chamber.
PARTY - % OF VOTE CAST - SEATS WON
FIANNA FAIL - 51.9 - 77
FINE GAEL - 33.3 - 45
LABOUR - 10.0 - 9
INDEPENDENTS - - 5
FARMERS - - 2
June 25 Douglas Hyde is sworn in as the first President of
Ireland elected under the 1937 constitution.
July 11
The British garrison turns the fortification on Spike
Island at the entrance to Cobh harbor over to Irish troops
and withdraws.
July 18
Douglas "Wrong Way" Corrigan lands in Dublin 28
hours 13 minutes after departing Floyd Bennett Field;
Brooklyn, New York in the 1929 Curtiss Robin he bought off a
scrap heap for $310. Civil aviation authorities had denied
permission for the transatlantic crossing. Corrigan told
authorities he was heading to Long Beach, California and
claimed he was the victim of a faulty compass. His first
words after landing were, I just got in from New York. Where
am I?
July 25
A court in Northern Ireland sentences a Belfast
woman to a year in prison for possessing, Irish Republican
Army documents, purportedly showing the strength and
placement of Belfast police units and locations of arms
storage lockers. September

British engineers and artillerymen install additional gun


emplacements purchased in England at the entrance to Cork
harbor.
Anti-aircraft guns are placed near the flying boat base at
Foynes and the countrys principle electric generating plants.
The Government of Northern Ireland orders 500,000
gasmasks from Great Britain.
November
Two members of the Irish Republican Army
are killed in an explosion at a cottage in County Donegal
shortly after a series of attacks on British customs posts on
the border between Ireland and Northern Ireland.
December 22 Northern Ireland arrests 34 persons
implicated in a plot against members of the Government and
detains them without trial under provisions of the Defence of
the Realm Act.
During the Year
Eires imports total 41,404,903 a
decline of 2,703,429 (16.3%) from the preceding year. The
United Kingdom supplies 50% of Eire's imports, the United
States 11.3%.Eire's exports total 23,828,720 an increase of
1,637,540 (13.3%) from the preceding year. The United
Kingdom buys 93% of Eire's exports, Germany 4%.
1939January 16
The Irish Republican Army begins a
bombing campaign against Great Britain with seven major
explosions; two in London, three in Manchester and one each
in Birmingham and Alnwick.
April Prime Minister de Valera declares his governments
intention to remain neutral in the event of war in Europe. De
Valera speaking before the Dail Eireann, I have stated in
this house and I have stated in the country, that the aim of
government policy is to keep this country out of war, and
nobody, either here or elsewhere, has any right to assume
anything else.
May 30 The Government of Ireland introduces the Treason
Act to deal with a revival of Irish Republican Army militancy.
June 14 The Government of Ireland introduces the
Offences Against the State Act making treason or its
concealment a capital crime and permitting the detention of
persons attempting to overthrow the state.
June 30 The population of Ireland (Eire) numbers

2,934,000 a decline of 31,864 (1.1%) since the 1936 census.


August 25An Irish Republican Army bombing kills 5 people
and injures 70 in Coventry, England.
August
Charles Bewley is dismissed from his position as
the Irish Free States minister to Germany. Bewley decides to
stay on in Berlin where he spends the war years writing
propaganda articles for the Nazis and flooding the German
Foreign Office with information on leading Irish diplomats
and politicians, including de Valera. He eventually applies for
work with the Sicherheitsdienst, the security service of the
SS, but is turned down.
September 2 The First Amendment of the Constitution Act
extends, to conflicts in which the State is not a participant
the provision for a state of emergency to secure the public
safety and preservation of the State in time of war or armed
rebellion.
September 3 Britain and France declare war on Germany.
Ireland (Eire) remains neutral but its citizens are allowed to
join the British Armed Forces or take jobs in British factories.
The Irish Government prohibits recruiting on its territory by
British forces but 43,000 Irish citizens enlist in the British
ranks.
Censors force the Irish press and radio to refer to the war as,
The Emergency. Allied airmen forced down over Ireland
and sailors picked up at sea by Irish ships are repatriated
while Axis flyers and sailors are interned.
Northern Ireland enters the war by virtue of its status as an
integral part of the United Kingdom. The British Government
ignores appeals by the Government of Northern Ireland to
apply conscription laws in the province several times during
the course of the conflict. Westminster ignores Stormonts
calls for fear of arousing Nationalist opposition. Northern
Ireland provides 38,000 men to the British Armed Forces
during World War II.
September 9 The Dail Eireann grants the Irish Government
emergency powers to control transactions in gold, securities
and foreign exchange.
September 16 The Irish Government establishes a Ministry
of Supplies under Sean Lemass. The supply of petroleum

products, coal and gas averages less than 20% of the prewar
norm, textiles 22%, and tea 25%. The British Government
imposes restrictions on trade with Ireland in an effort to
meet its own needs and to ensure that Irish neutrality does
not seriously hamper the Allied war effort.
September
Great Britain appoints its first diplomatic
representative to Ireland. John Maffey, a veteran of the
Indian civil service, is appointed High Commissioner for
Ireland.
October 1 The Government of Ireland announces that it has
uncovered evidence of an Irish Republican Army plot to seize
control of Northern Ireland. IRA leader Sean Russell is
accused of collecting money and arms to carry out
conspiracy during a visit to the United States.
October 22
A bomb is set off outside Dublins Mountjoy
Prison in an attempt to facilitate the escape of political
prisoners. December 1
Justice Gavan Duffy of the Dublin High Court rules provisions
of the Offences Against the State Act allowing detention of
prisoners without arraignment unconstitutional. The
Government releases 70 people held under the Act but
appeals Justice Duffys ruling to the Supreme Court.
December 15
Two men (one an admitted Irish Republican Army member)
are convicted of a planting a bomb that killed 5 people in
Coventry and sentenced to death by a court in Birmingham,
England.
December 23 Irish Republican Army gunmen seize
1,098,099 rounds of small arms ammunition during a raid on
the army depot at Phoenix Park, Dublin. Four of them are
captured after firing on a sentry during the get away
attempt. Police recover 851,000 of the rounds from caches
scattered between Dublin and the northern border by years
end.
December 25 Sixty suspected Irish Republican Army held in
custody at a jail in Derry, Northern Ireland overpower guards
and take control of the prison for several hours.
December
Northern Ireland bans circulation of
Republican Congress, Wolfe Tone Weekly, Irish Freedom, An

Phoblacht (The Republic) and Sentry. The prohibited


newspapers continue to be published in Ireland (Eire).
During the Year
Prime Minister de Valera declines a
request from the former Chief Rabbi of Ireland Isaac Herzog
to allow Christian doctors and dentists of Jewish descent to
enter Ireland and practice there. De Valera also refuses a
request from the Vatican to admit a number of Jewish
doctors temporarily. Only 60 to 7O Jews are admitted to
Ireland as refugees during the entire period of Nazi
persecution. The Minister of Justice recommends against
such admissions for economic reasons and for fear of
arousing an anti-Semitic backlash among the countrys large
number of unemployed citizens. Irelands principle industries
are: grain milling 10,770,420, brewing, 7,923,446, tobacco
products 7,676,129, dairy products 6,950,028 and bakery
goods 5,232,572.Irelands standing army numbers 724
officers and 7,262 men. The ranks of Northern Irelands
Royal Ulster Constabulary are increased to 12,000.
1940January 3 The Dail Eireann amends the Emergency
Powers and Offences Against the State Acts to allow
internment of native born Irish citizens suspected of illegal
anti-government activities. The measures are approved by a
vote of 82 to 9.
February 7
Peter Barnes and James McCormack, the two
Irish Republican Army members convicted of perpetrating a
bombing that killed 5 people in Coventry on August 25,
1939, are hung in Birmingham, England.
February 9
The Supreme Court of Ireland validates the
Emergency Powers and Offences Against the State Acts as
amended. Justice Minister Gerald Boland orders the first raid
in a series that leads to the internment of 500 suspected
Irish Republican Army members and the imprisonment of
600 others during the Emergency.
February 11
Street fighting between Unionists and
Nationalists erupts in Belfast after police charge a
Republican crowd protesting the execution of two Irish
Republican Army members in Birmingham, England.
February The Irish Republican Army formulates Plan
Kathleen in an effort to win German support. Their German

contacts conclude that the IRA is too disorganized to be of


use to the Reich.
February Joseph Cardinal MacRory, the Roman Catholic
Primate, and the bishops of Ireland issue a pastoral letter
condemning the activities of the Irish Republican Army and
declare membership in the organization a sin.
February 25
Six Irish Republican Army members jailed in
Dublin launch a hunger strike aimed at forcing the
Government to declare them prisoners of war.
February 29
A strike by Dublins 2,200 municipal
employees leaves the capital without the services of
firemen, public health workers and street sweepers for the
next 18 days. March 22
The Irish Republican Army issues a manifesto declaring that
the bombing campaign in Great Britain will continue until the
last British soldier has withdrawn from Ireland and the British
Government agrees to recognize them as Irelands only
legitimate government.
March 22 The Irish Republican Army marks the anniversary
of the 1916 Easter Uprising with a march by 400 armed
members through Belfast. The parade is staged in defiance
of Northern Irelands ban on Easter Week demonstrations.
March 24 Irish Nationalists clash with police in Derry,
Northern Ireland after a bomb damages a nearby railroad
bridge.
April 16 - 19
Irish Republican Army hunger strikers end
their attempt to force Dublin jailers to treat them as
prisoners of war after the deaths of two of their comrades.
April 25 A powerful bomb explodes near the headquarters
of the Garda Siochana detective squad. The lower yard of
Dublin Castle is wrecked and the entire city feels the blast.
May 7
Two motorcycle detectives carrying mail to the
British High Commission are fired on and seriously wounded
by six gunmen in the center of Dublin.
May 12 Flying Officer Donald Garland RAF of Ballinacor,
County Wicklow leads an attack by five Fairey Battle
bombers on the bridges over the Albert Canal in Belgium
being used by the invading German army. They meet an
inferno of anti-aircraft fire, but the mission is accomplished,

due to the expert leadership of Flying Officer Garland. F/O


Garland is killed in action and posthumously awarded the
Victoria Cross.
May 22 Dublin police uncover evidence of fifth column
activities during a raid on the home of Stephen Held. Mr.
Held, Mrs. Iseult Stuart a prominent socialite and a number
of Irish Republican Army members are arrested for
participating in the conspiracy.
May 24 Seventy six alleged Irish Republican Army
members are arrested and interned without trial by the Royal
Ulster Constabulary.
May 27 Prime Minister de Valera appoints a National
Defense Council. The council includes 3 members of his
Fianna Fail party, 3 from Fine Gael and 2 from Labour.
May 27 Ireland mobilizes its standing army and reserves.
The Government calls for additional volunteers for active
duty and to serve with local defense units.
May The Government bans private motoring on Irelands
roadways.
June 1
Captain Harold Ervine-Andrews company of the
East Lancashire Regiment is heavily outnumbered and under
intense German fire near Dunkirk. When the enemy attacked
at dawn and crossed the Canal de Bergues, Captain ErvineAndrews, with volunteers from his company, rushed to a
barn and from the roof shot 11 of the enemy with a rifle and
many more with a Bren gun. When the barn was shattered
and alight, he sent the wounded to the rear and led the
remaining eight men back, wading for over a mile in water
up to their chins. Captain Ervine-Andrews a native of Keadu,
County Cavan is awarded the Victoria Cross for his actions.
June 6
Parliament grants the Government additional
emergency powers including the right to execute saboteurs.
The measure passes by unanimous vote in both houses.
June 7
Dublin police charge Stephen Held with possession
of a parachute, secret code books, a radio transmitter and
military information and receiving $20,000 in United States
currency for the use of the Irish Republican Army.
June 25 The British Food Ministry agrees to double its
imports of Irish bacon and purchase the entire surplus of

Irish cheese.
June The British Government proposes the establishment of
a joint defense committee to include representatives of
Ireland, Northern Ireland and Great Britain.
July 1
Forty alleged members of the Irish Republican
Army are arrested by Belfast police and interned without
trial.
July 14
The Spanish Government releases Frank Ryan,
leader of the Connolly Column of the International Brigade,
from a Burgos Prison where he is serving a 30 year sentence,
into the custody of German intelligence officers who believe
his IRA connections will make him useful to the war effort.
Ryan is taken to Germany where he meets fellow republicans
Francis Stuart and Sean Russell. Russell and Ryan are then
sent to Ireland on a U-Boat but Russell dies on route and
Ryan is brought back to Germany.
July 22
Three hundred alleged members of the Irish
Republican Army are arrested by the Royal Ulster
Constabulary and interned without trial.
July 25
Irish journalist and diplomat Sean Lester succeeds
Joseph Avenol of France as Secretary General of the League
of Nations. Lester remains in Geneva throughout the Second
World War.
July 28
Eighteen alleged members of the Irish Republican
Army are arrested by the Royal Ulster Constabulary and
interned without trial.
July The Government of Northern Ireland rejects Prime
Minister de Valeras demand that it agree to end the partition
and adopt Dublins neutrality policy as condition of
participation in the tri-partite defense council proposed by
Great Britain. August 3
Imperial Airways resumes trans-Atlantic airmail service
between Great Britain and the United States via Foynes,
Ireland.
August 9 The Government bans strikes and lockouts in
Northern Ireland.
August 16The Emergency Powers (Amendment) Act is
further altered. The right to appeal verdicts of the military
tribunal is removed.

August 20A German aircraft crashes on a hillside in County


Kerry. Six crewmen are interned and a clearly marked air
map showing the routes to Foynes is recovered from the
wreckage.
August 26German aircraft drop bombs on four County
Wexford villages. Three women are killed when one of the
bombs hits a creamery in Campile. The Irish Government
lodges a formal protest with the German legation in Dublin.
September 6 Two Irish Republican Army gunmen convicted
of killing two detectives during an August 17th raid on their
Dublin hideout are executed.
September 13 The first air raid on Northern Ireland is
launched by lone German aircraft.
September 15 The Irish Government appoints 8 regional
commissioners to assume power in case their districts are
cutoff from Dublin during an invasion.
September 15 Irelands standing army numbers 12,000, the
ready reserve 15,000 and the Local Defence Force another
100,000 men. Irish forces have only 3 air squadrons, 2 motor
torpedo boats and no tanks or heavy artillery. October
The Government of Northern Ireland merges the Royal Ulster
Constabulary with the Home Guard. General Sir Hubert
Gough appeals to Winston Churchill on behalf of a committee
of prominent Irishmen asking the Prime Minister to repeal
the merger decree. General Gough declares that the
Constabulary has, incurred the odium attached to a political
police force of the type familiar on the Continent of Europe
and clashes on the border may result from the activities of
this large force directed by local civilian or police officials
without regard to consideration of British policy as to
external affairs or to British military arrangements designed
to conform to the requirements of that policy. November 5
Prime Minister Churchill declares in a speech to the House of
Commons that the Royal Navys anti-submarine warfare
program has been severely hampered by the loss of treaty
ports in Ireland.
November 5
Captain Edward Fegen RN, commanding HMS
Jervis Bay, is escorting 37 merchantmen in the Atlantic ,
when they are attacked by the German pocket battleship

Admiral Scheer. Captain Fegen immediately engaged the


enemy head-on, thus giving the ships of the convoy time to
scatter. Out-gunned and on fire Jervis Bay maintained the
unequal fight for three hours, although the captain's right
arm was shattered and his bridge was shot from under him.
He went down with his ship but it was due to him that 31
ships of the convoy escaped. Captain Fegen is awarded the
Victoria Cross posthumously.
November 7
Prime Minister de Valera rejects British
appeals to reopen the treaty ports to the Royal Navy in a
speech to the Dail Eireann.
December 8
The Roman Catholic bishop of Down and
Connor denounces the Royal Ulster Constabularys the
wholesale arrests of alleged Irish Republican Army members
and their internment without trial. December 25
Prime Minister de Valera declares that Irelands supply of
food and raw materials is being quickly exhausted and
appeals for aid in obtaining food and arms during a
Christmas broadcast to the United States. December 27
Great Britain restricts re-export to Ireland of cattle feed,
fertilizer, tobacco, oranges, lemons and certain tools
imported under convoy.
During the Year
The Government of Northern Ireland
offers a 2 bounty for every new acre of land ploughed and
planted for food production.
Ireland's cost of living index climbs to 119 (June 1939 = base
100).
1941
January 1 3 German bombs fall on Dublin and the
surrounding counties of Carlow, Kildare, Louth, Meath,
Wexford and Wicklow.
January 1 Great Britain declares Irish exports liable to seizure
on the high seas unless they are covered by a British
navicert. The policy already applies to the products of other
neutral countries.
January 5 The executive council of Northern Irelands
Unionist Party attacks Irish neutrality as, deliberately
prejudicing Britains prospects of success in a struggle which
means as much for one country as the other.
January 28
Ireland imposes strict censorship on of press

messages to places outside its territory.


January 31
Irelands Prime Minister is authorized to
establish courts-martial for civilians, should the necessity
arise. February 1
The Irish Government bans signposts.
March 19 A German agent parachutes into Ireland and is
immediately arrested by the Garda Siochana.
March
Irish Defense Minister Frank Aiken travels to the
United States hoping to purchase enough arms to equip
200,000 men. The Americans declare that they have no arms
to spare except for countries actively engaged in fighting the
Axis but authorize the purchase or charter of two merchant
ships to deliver food for the civilian population.
March
Ireland accepts a gift from the American Red Cross
of $500,000 worth of food and relief supplies.
March 16 The Royal Ulster Constabulary arrests four men at
a suspected Irish Republican Army arms cache discovered in
a Belfast factory.
April 7
German air raids on Belfast kill 740 people, injure
1,511 and damage 56,000 homes. Prime Minister de Valera
orders all Dublin fire brigades save one to assist in putting
out the Belfast fires.
April Irish Defense Minister Frank Aiken, speaking in
Washington, charges Great Britain with violating its
agreement to supply Ireland with a fair share of goods
received from overseas via convoy.
April 21 Northern Irelands Minister of Public Safety
declares Belfast and 8 other districts, defence areas.
May 4
German air raids on Belfast resume.
May 22 Prime Minister Churchill tells the House of
Commons that the Government is considering extending
conscription to Northern Ireland.
May 25 Joseph Cardinal MacRory, Roman Catholic Primate
of Ireland, denounces extension of conscription to Northern
Ireland.
May 26 Prime Minister de Valera calls a special session of
the Dail Eireann to discuss British plans to institute
conscription in Northern Ireland. The leaders of all the
parties denounce the proposal.

May 27 Prime Minister Churchill announces that proposals


to institute conscription in Northern Ireland have been
dropped. Northern Ireland Prime Minister John Andrews
declares the Dail Eireanns discussion of the matter,
unwarrantable interference.
May 30 German bombs fall on Dublins North Strand killing
34 people and wounding 90.
June 19 The German consul expresses regret and promises
to pay reparations for the May 30th bombing of Dublin.
June The Communist Party of Ireland dissolves following the
German invasion of the Soviet Union.
July 11
British Home Security Minister Herbert Morrison
announces the arrest of Cahir Healy a Nationalist member of
the Northern Ireland Parliament.
July 17
John Dillon, leader of the official opposition Fine
Gael Party, urges the Irish Government to reopen the Treaty
Ports to the British Royal Navy.
September 3 A Dublin court sentences 9 Cork men to 3 to
5 years in prison for membership in the Irish Republican
Army.
September 16 Sixteen Irish soldiers are killed while testing
mines in the Glen of Imaal, County Wicklow.
September 18 Sean McCaughey is convicted of kidnapping
former Irish Republican Army chief of staff Stephen Hayes on
June 30th. Hayes claims he was court-martialed and tortured
by the IRA.
October 5 Prime Minister de Valera publicly praises British
respect for Irish neutrality, despite the temptations and
urgings of certain propagandists.
November 25 Captain James Jackman of Dublin leads his
machinegun company of Northumberland Fusiliers to the
relief of the tank assault on El Duda ridge at Tobruk, Libya
which was being slowed down by fierce enemy fire from antitank guns. Captain Jackman is awarded the Victoria Cross for
his actions and is killed in action the next day.
November
Irelands (Eire) population numbers 2,897,700
an increase of 53,700 (1.8%) since the previous census in
1938. December 14
Prime Minister de Valera, speaking in Cork, declares that the

United States entry into the war will not change Irelands
neutrality policy.
December
Great Britain supplies Ireland with antiaircraft, artillery and limited quantities of small arms and
ammunition.
During the Year
The Minefield section of the Irish Marine
and Coastwatching Service is established to supervise mine
laying at the entrances to the harbors of Cork and Waterford.
The British Royal Navy lays minefields off the southern coast
of Ireland.
American construction workers arrive in Northern Ireland to
build on new bases.
The Government closes the primary school on the Gaelic
speaking Great Blasket Island off County Kerry. The class is
down to 6 pupils.
Irish Shipping Ltd. is established to provide neutral shipping
to facilitate the importation of wheat. The venture has little
impact on the shortages and 20 Irish ships are sunk with the
loss of 138 lives during the Emergency.
Emigrants from Ireland to Great Britain number 31,800 men
and 3,272 women.
An outbreak of foot-and-mouth disease kills 40,000 cattle.
Irelands cost of living index rises to 131 (June 1939 = base
100). Irelands imports decline by 37% to 29,544,000.
Irelands exports decline by 3.5% to 31,848,000. Foodstuffs
account for 28,000,000 worth of exports.
1942January Prime Minister de Valera admits that Ireland
is receiving additional arms, bit by bit but does not reveal
their source.
January 12
Prime Minister de Valera denies reports that
negotiations are under way to allow the use of Irish ports and
airfields by British forces. He further declares that any arms
delivered to Ireland are received with the understanding that
they will be used to, defend our territory against any
aggressor.
January 26
The first of 300,000 American troops
stationed in Northern Ireland during the war arrive at Derry.
Prime Minister de Valera responds with declaration that the
United States has recognized a, Quisling government and

taken a lease on Irish soil which threatens Irelands


neutrality.
January 28
Patrick Maxwell, a Nationalist member of the
Northern Ireland parliament, declares, there is nothing we
can do to physically throw the American troops out of
Northern Ireland, or we would do so.
January 28
The Labour Party moves that traditional rules
of evidence be restored in trials by Irish courts-martial. Prime
Minister de Valera opposes the motion and declares the
extraordinary measures justified in light of Irish Republican
Army terrorism against jury members and witnesses. Justice
Minister Gerald Boland and deputy opposition leader James
Dillion charge that the IRA is working with German agents
dropped into Ireland by parachute. Dillion further charges
that de Valera is concealing the true nature of the conspiracy
that makes it necessary to grant such drastic powers to the
courts.
January Ireland grants permission for Pan American
Airways to use the flying boat base at Foynes during clipper
runs between the United States and Great Britain.
February 5
The United States Naval Operations Base at
Derry, Northern Ireland is commissioned.
February 10
James Dillon, deputy opposition leader in the
Dail Eireann, urges support for the United States in the war
against the Axis. Dillion declares that Ireland had won it
independence with American support and that its survival
depends on continuing the, Irish-American alliance in a
speech to the annual convention of the Fine Gael party.
February 19
James Dillon resigns his seat in the Dail Eireann and from
Fine Gael to protest the partys continuing support of the
neutrality policy.
February 3
Prime Minister de Valera declares that the
chance of invasion is increasing and calls for the defense
force to be increased to 500,000 men.
February 18
The United States command in Northern
Ireland places Ireland (Eire) off limits to visits by American
forces.
February 18
A German agent arrested after parachuting

into Ireland escapes from Dublins Mountjoy Prison.


February 18
The Irish Government extends press
censorship to cover all dispatches to foreign newspapers and
press agencies.
February 26
A Dublin court sentences 3 men to death for
the slaying of another in an Irish Republican Army purge. Two
of the sentences are later commuted to life in prison.
February 28
German spy Guenther Schuetz escapes from
prison.
March
Irish government spokesman Sean MacEntee
declares that a series of Irish Republican Army attacks on
British military camps in Northern Ireland was designed to
provoke a British attack on Ireland (Eire) which it hoped
would increase its support there.
April 3
The Irish Republican Arm attacks the Royal Ulster
Constabulary barracks in Dungannon.
April 5
The Irish Republican Army marks the anniversary
of the 1916 Easter Uprising by setting off incendiary bombs
in a Belfast theater used by British and American troops and
attacks a Royal Ulster Constabulary barracks in Belfast.
April 30 Escaped German spy Guenther Schuetz is
recaptured at the home of Caitlin Brugha, widow of executed
Republican leader Cathal Brugha.
March 19 A dining car attendant on the Dublin-Belfast train
is convicted of acting as a messenger in an Irish Republican
Army plot to gather intelligence on the strength of British
and American forces in Northern Ireland.
May 19 Coal shortages force restrictions on the use of
electricity.
June 22 Captain Charles Blair pilots a Pan American
Airways clipper on the first non stop commercial flight from
Foynes, Ireland to New York with 16 passengers including
Admiral Sir Andrew Cunningham. Fog prevented a planned
refueling stop at Botwood, Newfoundland.
A Belfast judge sentences James Walsh to 2 months at hard
labor for urging a crowd in a Nationalist neighborhood to
attack two American soldiers.
June An order to ration clothing goes into effect.
American Export Airlines begins using the Foynes flying boat

base during flights between the United States and Great


Britain.
July 15
RAF Wing Commander Brendan Finucane of Dublin
is shot down and killed off the French coast. Finucane
shotdown at least 32 enemy aircraft and was the top Irish
fighter Ace of World War II.
July 30
Six Irish Republican Army gunmen convicted in the
Easter Sunday murder of a Belfast policeman are sentenced
to be hanged. Nationalists riot after the sentences are
pronounced in part because no Catholics served on the jury.
August 30The Governor of Northern Ireland, the Duke of
Abercorn, commutes the death sentences of 5 of the 6 IRA
gunmen convicted in the Easter Sunday killing of a Belfast
policeman. The sixth, Thomas Williams, admitted to firing
the fatal shot.
August 31An Irish Republican Army manifesto declares the
presence of American troops in Northern Ireland an act of
aggression and threatens to use, whatever means
necessary to force their withdrawal.
September 1 The United States command places Belfast
off limits to American soldiers for 48 hours.
September 2 Demonstrators protesting the execution by
Northern Ireland of IRA gunman Thomas Williams for killing a
policeman force a one hour halt to business activity in
Dublin.
September 3 The Royal Ulster Constabulary raids hundreds
of homes in Nationalist districts of Belfast and arrests 56
men on suspicion of Irish Republican Army membership.
October 2 HMS Curaao sinks off Donegal after a collision
with RMS Queen Mary. The Curacao cuts across the Queen
Marys bow in chase of a reported German U-boat and is
sliced in two. The accident leaves 338 of the Curacao's crew
dead. Escort destroyers pick up 108 survivors from the
water. The Queen Mary which is carrying 15,000 American
troops follows orders and does not stop. October 11
The number of persons interned in Northern Ireland for
alleged membership in the Irish Republican Army reaches
500.
October 12
The Royal Ulster Constabulary announces the

arrest of Hugh McAteer, the alleged chief of staff of the Irish


Republican Army. McAteer is later convicted of treason and
sentenced to 15 years in prison.
October Belfast police impose an 8:30 p.m. to 6 a.m.
curfew on industrial areas in response to Irish Republican
Army bombings.
November 4
The Central Bank of Ireland is established in
Dublin to replace the Currency Commission.
November 7
Eamon Donnelly, former leader of Fianna Fail,
is elected to the Northern Ireland parliament as a Nationalist.
Donnelly refuses to take his seat and announces plans to
united Northern Ireland Nationalists with political parties in
Ireland (Eire) as part of a campaign to end the partition.
December 21 Belfast police lift the evening curfew imposed
on industrial areas in response to Irish Republican Army
bombings.
During the Year
The former Chief Rabbi of Ireland Isaac
Herzog warns Prime Minister de Valera that Jews are being
systematically exterminated in German prison camps. De
Valera and the Irish ministers in Berlin, Vichy, and at the
Vatican attempt to rescue a large group of German Jews held
at Vittel, France and groups of Italian, Dutch, Hungarian, and
Slovakian Jews without success.
Bread rationing begins despite increases in wheat harvest
after introduction of compulsory tillage policy.
Irelands cost of living index climbs to 144 (June 1939 = base
100). The value of Irish imports increases by 5,085,064
(17.2%) to 34,630,064.
The value of Irish exports increases by 817,307 (2.6%) to
32,665,307.
1943January 15
Hugh McAteer, Irish Republican Army
chief of staff, escapes from a Belfast prison with 3 associates
after serving 2 months of a 15 year sentence. A 3,000
reward is posted for his capture.
March 7 The Roman Catholic Bishop of Down and Connor
protests a series of raids on Nationalist homes by police in
Northern Ireland. The constabulary claims it was searching
for Irish Republican Army arms caches and hideouts.
March 11 Northern Ireland Attorney General James

McDermott announces the seizure of documents revealing


plans by the IRA to assassinate policemen and disrupt war
industries, transportation and civil defense measures.
March 21 Twenty one internees escape from a Derry,
Northern Ireland prison. Eighteen of them are captured the
next day by Irish (Eire) authorities and interned at the
Curragh Camp.
April 1
Ireland (Eire) introduces electricity rationing.
April 20 A Belfast court sentences two men to 10 years
imprisonment and a flogging for possession of arms and
ammunition.
April 24 Fugitive IRA commander in chief Hugh McAteer
appears with several armed associates at memorial service
for Irish revolutionaries killed in the 1916 Easter Uprising
held in a theater in a Nationalist district of Belfast. McAteer
reads a statement denouncing the American presence in
Northern Ireland as an, invasion of our rights and warns
that they will be targeted in, a resumption of hostilities
between the Irish Republic and Great Britain.
May 10 A mine explodes in Ballymanus Bay, County
Donegal killing 19 men.
May 29 The Royal Ulster Constabulary arrests James Steele
an adjutant to fugitive Irish Republican Army commander
Hugh McAteer.
May Irelands cost of living index rises to 159 (June 1939 =
base 100). The Irish ship Irish Oak is sunk in the Atlantic by a
submarine in broad daylight despite clear neutral markings.
The Japanese Consulate in Dublin is raised to the status of a
Consulate General.
June 5
Ireland (Eire) introduces butter rationing; stricter
rationing of tea, gasoline and clothing and price controls on
clothing.
June 16 Prime Minister de Valera announces plans for the
formation of a popular organization to complete the
restoration of Gaelic as the national language and describes
the use of English in Ireland as a badge of conquest during a
speech in Waterford.
June 23 General election: Prime Minister de Valeras Fianna
Fail Party loses its majority. William Cosgraves Fine Gael

Party, loses 13 seats. Micheal Donnellans Farmers Party


wins 14 seats. James Dillion who resigned from the outgoing
Dail and the Fine Gael Party to protest Irish neutrality is
elected to a new seat as an independent. Distribution of
seats in the new Dail Erieann
PARTY - % OF VOTE CAST - SEATS WON - NET GAIN OR LOSS
FIANNA FAIL - 41.8 - 67 - -10
FINE GAEL - 23.1 - 32 - -13
LABOUR - 15.7 - 17 - +6
FARMERS - 9.0 - 14 - +12
INDEPENDENTS - - 8 - +3
June 28 Martin OSullivan becomes the first member of the
Labour party to be elected Lord Mayor of Dublin.
July 1
The Dail Erieann reelects Prime Minister Eamon de
Valera by a vote of 67 to 37 with 33 abstentions including all
Farmer and Labour Party members. De Valera forms a
minority Fianna Fail cabinet which governs with the support
of the Farmers party.
July The Irish Government refuses to release 3 Irish
Republican Army members who conduct a 49 day hunger
strike at the Curragh internment camp.
July 9
Justice Minister Gerald Boland tells the Dail
Eireann that the Irish Republican Army has harbored a
German agent who parachuted into the country with
invasion plans for the past 18 months.
August
Lockheed Corporation announces plans to
construct a large aircraft assembly plant and overhaul base
for the U.S. 8th Air Force in Northern Ireland.
September 6 The Dublin Corporation petitions the
Government to replace John Hughes statue of Queen
Victoria in front of Leinster House (Parliament) with a statue
of Lord Edward Fitzgerald.
September 11 Irish censors ban the London Sunday
Dispatch which has a circulation of 70,000 in Ireland (Eire)
after it publishes two articles critical of Irish neutrality and
de Valeras administration.
November 16 Prime Minister de Valera tells the Dail Eireann
that Ireland has never forgotten the generosity of the United
States but cannot be expected to show its gratitude, in the

blood of her people. He insists that the policy of neutrality


must be maintained despite the possibility of retaliation after
the war.
November 20 Police in Northern Ireland recapture fugitive
Irish Republican Army commander in chief Hugh McAteer.
December
The Irish ship Kerlogue docks at Cobh with
164 German survivors of a naval battle picked up in the Bay
of Biscay.
During the Year
Joe Sheridan, chef at the Foynes
transatlantic flying boat terminal, invents Irish coffee.
Penalties for violations of the Northern Ireland Special
Powers Act are increased and single magistrates acting on
their own are allowed to try less severe offences.
The value of Irish imports declines by 8,470,064 (24.5%) to
26,160,000.
The value of Irish exports declines by 5,185,307 (15.9%) to
27,480,000.
1944February 21
David Gray, the United States Minister
to Ireland, demands the expulsion of German and Japanese
diplomats from the country in a note delivered to Prime
Minister de Valera. Gray refers to the upcoming invasion of
Europe declaring that, not only the success of the
operations but the lives of thousands of United Nations
soldiers are at stake and further notes the possession of a
radio transmitter by the German legation in Dublin.
February Chief of staff Hugh McAteer and 30 other Irish
Republican Army prisoners begin a hunger strike to protest
the refusal of Belfast jailers to separate them from nonpolitical criminals, provide better food and allow them to
wear civilian clothing.
March 7 Prime Minister de Valera rejects American
demands for the expulsion of Axis diplomats from Ireland
and insists that his government must protect the countrys
neutrality and democratic way of life at all cost. De Valeras
reply further notes that Irish sentiments in regard to Britain
had softened during the war, precisely because Britain has
not attempted to violate our neutrality.
March 11 The U.S. State Department announces cancellation
of an agreement to transfer the cargo ship Wolverine to

Ireland. The Department notes the sinking of two other


American ships operating under the Irish flag by Axis
submarines and Irelands failure to protest these violations of
its neutrality.
March 13 The British Government bans travel between Great
Britain and both Ireland (Eire) and Northern Ireland.
Telephone and air links between Great Britain and Ireland
(Eire) are severed. The border between Eire and Northern
Ireland remains open but travelers on the Dublin to Belfast
train are subjected to closer inspection of identification and
baggage.
Canadian Prime Minster MacKenzie King rejects de Valeras
request that he intervene to secure withdrawal of the
American note demanding the expulsion of Axis diplomats
from Ireland. King tells the Canadian House of Commons that
he is in complete sympathy with the American position. The
Australian High Commissioner in London rejects a request by
Irish officials for Australian assistance in securing withdrawal
of the American note demanding expulsion of Axis diplomats
from Ireland.
March 14 One hundred Irish Republican Army members held
in a Derry, Northern Ireland jail begin a hunger strike in
support of Hugh McAteers demands for special treatment.
March 15 Professor Savory Unionist MP for Belfast addresses
Winston Churchill during the House of Commons questions
period asking if the Government intends to continue risking
the lives of British sailors to deliver shipments of fuel, tea
and other commodities to Ireland. The Prime Minister
declines to answer.
March 22 Northern Ireland Home Security Minister William
Lowry declares that the Government will not intervene to
prevent the death of Irish Republican Army hunger strikers.
March 28 Irish Republican Army chief of staff Hugh McAteer
and 2 other prisoners end their hunger strike.
April 19 The U.S. State Department releases President
Roosevelts reply rejecting Prime Minister de Valeras appeal
to the belligerents to spare Rome as the campaign in Italy
progresses. The President declares that the Germans
occupying the city are making full military use of it and are

completely responsible for its fate.


April Richard Mulcahy succeeds William Cosgrave as leader
of the Fine Gael Party.
May 6
The U.S. State Department bars trade with 38 Irish
firms and individuals accused of pro-Axis activity.
May 30 General election Prime Minister de Valeras
Fianna Fail Party regains a majority in the Dail Eireann.PARTY
% OF VOTE CAST - SEATS WON - NET GAIN OR LOSS
FIANNA FAIL - 48.9 - 76 - +9
FINE GAEL - 20.5 - 30 - -2
FARMERS - 10.8 - 11 - -3
LABOUR - 8.7 - 8 - -9
INDEPENDENTS - - 9 - +1
NATIONAL LABOUR - 2.7 - 4 - +4
June 6
Cornelius Ryan covers the D-Day invasion as a
correspondent for the London Daily Telegraph.
June 7
Great Britain halts coal deliveries to Ireland (Eire).
The Government restricts generation of electricity to 1/5th of
1941 levels and Dublins trolleys cease operation.
June 9
The Dail Eireann reelects Eamon de Valera as
Prime Minister by a vote of 81 to 37.
June 10 Frank Ryan, former leader of the Connolly Column
of the International Brigade, dies in Dresden, Germany.
August 21Passenger ships resume sailings between Ireland
and Great Britain.
September 19 Flight Lieutenant David Lord of Cork is flying
supplies to the British 1st Airborne Division at Arnhem when
his Dakota is hit twice by intense enemy anti-aircraft fire and
has one engine burning. He manages to drop his supplies,
but at the end of the run find that there are two containers
remaining. Although he knows that one of his wings might
collapse at any moment he nevertheless makes a second run
to drop the last supplies, then orders his crew to bale out. A
few seconds late the Dakota crashes in flames killing its
pilot. Lieutenant Lord is awarded the Victoria Cross
posthumously.
September
Telephone and airline service between Great
Britain and Ireland is restored.
Restrictions on use of electricity are lifted thanks to high

levels in the Shannon Hydroelectric plants reservoir. October


2
Dublins street cars return to operation.
November 14 The U.S. State Department announces that
Ireland has turned down demands for assurances from
neutral countries that they will refuse asylum requests from
war criminals. The Department does not release the text of
Irelands reply but notes that it is the only country to
respond negatively. The British Undersecretary for Dominion
Affairs, Paul Emrys-Evans, informs members of parliament
that the Irish Governments response to the American
request is that it can offer no assurance which would
preclude it from granting asylum if justice, charity, honor or
other national interests should so require.
November 30 General Eoin ODuffy leader of the Blue Shirts
dies in Dublin at age 52 and is given a state funeral.
During the Year
The Roman Catholic Archbishop of
Dublin John MacQuaid bans Catholics from attending Trinity
College without the permission of their bishop.
1945March 21 Lieutenant Claude Raymond, Corps of Royal
Engineers is second-in-command of a reconnaissance patrol
at Talaku, Burma when they are fired on by a strongly
entrenched enemy detachment and the Lieutenant at once
leads his men towards the position. He is first wounded in
the shoulder and then in the head, but continues leading his
men forward, when he is hit a third time, his wrist being
shattered. He still carries on into the enemy defenses where
he is largely responsible for capturing the position. In spite of
the gravity of his wounds, he refuses medical aid until all the
other wounded have received attention. He dies the next
day. Lieutenant Raymond is awarded the Victoria Cross
posthumously.
April 12 The Dail Eireann adjourns for two days of
mourning following the announcement of President
Roosevelts death.
April 30 Prime Minister de Valera visits the German
legation in Dublin and signs a book of condolences
memorializing the death of Hitler.
May 8
Nationalists scuffle with Trinity College students

displaying the Union Jack during a V-E Day celebration.


May 13 Churchill takes one last jab at Irish neutrality
during victory broadcast, the approaches which the
southern Irish ports and airfields could so easily have
guarded were closed by the hostile aircraft and U-boats. This
indeed was a deadly moment in our life, and if it had not
been for the loyalty and friendship of Northern Ireland, we
should have been forced to come to close quarters with Mr.
de Valera, or perish from the earth. However, with a restraint
and poise to which, I venture to say, history will find few
parallels, His Majestys Government never laid a violent hand
upon them, though at times it would have been quite easy
and quite natural, and we left the de Valera Government to
frolic with the German and later with the Japanese
representatives to their hearts content.
May 17 De Valera replies to Churchill in a broadcast over
Radio Eireann. The speech does much to restore his
domestic popularity in the wake of the furor over his visit to
the Germans. Allowances can be made for Mr. Churchills
statement, however unworthy, in the first flush of victory. No
such excuse could be found for me in this quieter
atmosphere. There are, however, some things it is essential
to say. I shall try to say them as dispassionately as I can. Mr.
Churchill makes it clear that, in certain circumstances, he
would have violated our neutrality and that he would justify
his actions by Britains necessity. It seems strange to me that
Mr. Churchill does not see that this, if accepted, would
become a moral code and that when this necessity became
sufficiently great, other peoples rights were not to count...
That is precisely why we had this disastrous succession of
wars - World War No.1 and World War No.2 - and shall it be
World War No.3? Mr. Churchill is proud of Britains stand
alone, after France had fallen and before America entered
the war. Could he not find in his heart the generosity to
acknowledge that there is a small nation that stood alone
not for one year or two, but for several hundred years
against aggression; that endured spoliations, famine,
massacres, in endless succession; that was clubbed many
times into insensibility, but each time on returning to

consciousness took up the fight anew; a small nation that


could never be got to accept defeat and has never
surrendered her soul?
June 24 Sean T. O'Kelly succeeds Douglas Hyde as
President of Ireland.
July Irish Republican Army chief of staff Sean MacCool is
arrested and charged with plotting to assassinate John
Gantley, superintendent of the Garda Siochana.
July 4
Prime Minister de Valera announces the arrest and
internment of former IRA chief of staff Hugh McAteer.
McAteer who was released from Northern Ireland prison at
the end of the European War is accused recruiting 40 IRA
followers from among the 400 internees released by the
Ireland from the Curragh camp and plotting with them to
overthrow the Irish Government.
July 11
Prime Minister de Valera asserts that Ireland is a
republic in reply to a question from the opposition in the Dail
Eireann.
July 17
Prime Minister de Valera reiterates his previous
assertion and declares Ireland an independent republic,
associated as a matter of our external policy with the states
of the British Commonwealth. De Valera refuses opposition
member James Dillions request for further clarification of
Eires status saying that the material necessary for a
conclusive answer is unavailable.
July 19
Prime Minister de Valera replies to James Dillons
criticism of his condolence call on the German consulate
following the death of Hitler by declaring that he had merely
followed universally established practice and that no
question of approval or disapproval was involved.
July 31
Leading Seaman James Joseph Magennis, a diver
in the midget submarine XE.3, attaches limpet mines to the
Japanese cruiser Takao in Johore Straits off Singapore under
particularly difficult circumstances. During this time his
breathing apparatus was leaking and he returned to the
submarine after completion of his task very exhausted. On
withdrawing, his commander found that one of the limpet
carriers which is being jettisoned, will not release itself and
Magennis immediately volunteers to free it. Seaman

Magennis is the only native of Northern Ireland awarded the


Victoria Cross for services during World War II. The working
class Catholic son of West Belfasts Falls Road is finally
honored with a memorial in his native city in 1999.
July Prime Minister de Valera intimates that an arrangement
could be made to settle the 230,000,000 exchange balance
accumulated by Ireland during the war if Great Britain would
agree to end the partition.
July August About 200 German military personnel
interned in Ireland are repatriated to Germany.
September
Ten German spies held in a County Sligo jail
are released. Eight of them choose to remain in Ireland.
October The first shipment of Irish relief aid to Europe,
mostly draught horses and cattle, arrives in Rotterdam.
November 11 The Government bans an Armistice Day
parade by members of the British Legion. The veterans make
their way to Dublins War Memorial Park separately, wearing
their medals under cover and carrying their flags furled. The
ceremony is followed by a memorial service at Saint Patricks
Cathedral. November
General Sir Hubert Gough, president of the Commonwealth
Irish Association, presents a memorial to British Prime
Minister Atlee requesting that unemployment benefits be
extended to ex-service members and civilian war workers
who have returned to Ireland (Eire).
Irish Airways resumes the Dublin-London service suspended
in 1939.
During the Year
Samuel Beckett is awarded the Croix de
Guerre by the French Republic for his Resistance work.
Charles Bewley, the former Irish Minister to Germany who
stayed on in Berlin to work for the Nazis after his dismissal in
1939, is briefly interned by the Allies. Bewley settles in Italy
after his release and writes short stories and a biography of
Herman Goering.
1946April 18 The last Secretary General of the League of
Nations, Sean Lester of Ireland, signs a contract transferring
the Leagues assets to the United Nations Organization.
April Aer Rianta and British Overseas Airways Corporation
form a joint venture to provide air service linking Ireland with

Great Britain and Europe.


May 12 Irelands (Eire) population numbers 2,953,452 an
increase of 55,752 (1.9%) since the 1941 census.
May An Irish Republican Army hunger striker dies during
internment. Prime Minister de Valera declares that the
Government will not be coerced by hunger strikes or other
means into releasing men engaged in attempting to
overthrow it.
June Dublin is chosen to host the North Atlantic office of the
International Civil Aviation Organization.
July 6
Sean MacBride founds Clann na Poblachta to
challenge the conservative economic and welfare policies of
Fianna Fail.
July 25
The Dail Eireann authorizes the Government to
seek membership in the United Nations. The Soviet Union
blocks Irelands application with a veto in the Security
Council. July
Bread rationing is introduced in Northern Ireland.
Deliverymen refuse to cooperate with the regulations and
British troops are called in to distribute bread.
October Prime Minister de Valera makes a public reversal of
his earlier statements regarding Irelands status in relation to
the British Commonwealth. De Valera remarks that certain
symbols of the Commonwealth have been recognized by
Irish law and accepted by the people. His statement is made
in reply to critics of President OKellys functioning as
representative of the Crown.
November 23 Bakery workers begin a week long strike in
Northern Ireland. The British Army deploys cooks from
England to replace the strikers.
During the Year
A Royal Navy minesweeping flotilla
based at Cobh removes or destroys 4,000 mines laid in Irish
waters during the war.
Prime Minister de Valera overrides Justice Minister Gerald
Bolands rejection of a London based Jewish charitys
proposal to house 100 Jewish children from Poland in Clonyn
Castle, County Meath.
David Fleming an Irish Republican Army prisoner in Northern
Ireland stages 77 and 45 day hunger strikes. He is released

at the end of the second strike, sent to Ireland (Eire) and


barred from reentering Northern Ireland for 8 years.
1947January 30
James Larkin, founder of the Irish
General and Transport Workers Union, dies in Dublin at age
71 leaving 4.50 and a few personal belongings.
March 15 Coal shortages force Irish railways to shutdown
passenger service and limit freight runs to priority
commodities such as food and fuel.
March
The Northern Ireland Bill introduced in the British
House of Commons expands Northern Irelands legislative
prerogatives to include the power to establish a health
service to complement the National Health Service of Great
Britain. Geoffrey Bing leads a group of about 200 MPs who
call for rejection of the measure, until such time as, in the
opinion of this House, the Parliament of Northern Ireland so
administers the Government of Ireland Act, 1920, as to
provide democratic liberty and equality for the people of
Northern Ireland.
April 7
Great Britain agrees to furnish Ireland (Eire) with
11,000 tons of coal per week to keep Dublins city gasworks
and other essential businesses operating. Ireland imported
50,000 tons of British coal per week prior to the war.
April 12 Eight German spies who elected to remain in
Ireland at the end of the Second World War are rearrested
and briefly held in Mountjoy prison, Dublin. One, Dr. Goertz,
commits suicide while in custody.
May 31 Labour MP Geoffrey Bing continues his campaign
to defeat the Northern Ireland Bill. He describes Northern
Ireland in a New Statesman article as, not a Fascist State of
the Nazi type, but an organized denial of democracy on the
American model and goes on to compare the methods used
in America to disenfranchise Blacks with those used in
Northern Ireland to disenfranchise Nationalists.
July 13
The British House of Commons passes the
Northern Ireland Bill after Labour MPs desert the opposition
on second reading.
July Prime Minister de Valera denies Russian charges that
Ireland is unfit for membership in the United Nations
because it held Axis sympathies and attacks Russian

territorial acquisitions.
During the Year
Irelands export earnings are 1/3 of the
amount spent on imports. The trade deficit with the United
States and Canada reaches a 7 to 1 ratio. 1948
February 4
General election: Prime Minister de Valeras
Fianna Fail remains the largest party in the Dail Eireann.
PARTY - % OF VOTES CAST - SEATS WON - NET GAIN OR LOSS
FIANNA FAIL - 41.9 - 68 - -8
FINE GAEL - 19.8 - 31 - +1
LABOUR - 8.7 - 14 - +6
CLANN na POBLACHTA - 13.3 - 10 - +10
FARMERS - 5.5 - 7 - -4
NATIONAL LABOUR - 2.6 - 5 - +1
INDEPENDENTS - - 12 - +3 February 18
The Dail Eireanns opposition parties combine
to elect John Costello of the Fine Gael Party as prime
minister.
April 16 Ireland joins the Organization for European
Economic Development.
September
Prime Minister Costello announces that
Ireland will repeal the External Relations Act of 1936 and end
the Crowns role in appointing diplomatic representatives
and concluding trade agreements.
November 17 The Costello government introduces the
Republic of Ireland Bill in the Dail Eireann.
November 25 Great Britain, Canada and South Africa agree
to continue trade preferences and reciprocal citizenship
rights after Ireland severs its links with the Commonwealth.
December 14 The British Government turns down a request
from the Government of Northern Ireland to change Northern
Ireland's name to Ulster. The Dominions Office notes that
this would entail changing the full name of the United
Kingdom of Great Britain and Northern Ireland.
December 21 President Sean T. OKelly signs the Republic of
Ireland Act ending the countrys link with the British
Commonwealth. December 21
Sir Gilbert Laithwaite, the British High Commissioner to
Ireland, writes that, Northern Ireland is not Ulster and the
designation is false and dangerous.

During the Year


The remains of William Butler Yeats are
returned from France and reburied at Drumcliff, County Sligo.
1949April 18 The Republic of Ireland Act becomes effective
at midnight on Easter Monday.
May 5
The Council of Europe is established with the
Republic of Ireland as a founding member.
June 2
The Ireland Act passed by the British parliament
declares that the Republic of Ireland is not part of the British
dominions, but that it is not to be regarded as a foreign
country, and that Northern Ireland will not cease to be a part
of the United Kingdom without the consent of the Northern
Ireland parliament.
July 12
Douglas Hyde, Gaelic League founder and first
President of Ireland, dies in Dublin at age 89

ENGLISH HUMAN RIGHTS


COMMITTEE. ... By virtue of Article
29.6 of the Constitution of Ireland, ...
Under the Offences Against the State Act
1939
UNITED NATIONS CCPR
International covenant
on civil and
political rights
Distr.
GENERAL
CCPR/C/IRL/Q/3/Add.1
24 June 2008
Original: ENGLISH
HUMAN RIGHTS COMMITTEE
ADVANCE UNEDITED VERSION

REPLIES TO THE LIST OF ISSUES (CCPR/C/IRL/Q/3)


TO BETAKEN UP IN CONNECTION WITH THE CONSIDERATION
OF THE THIRD PERIODIC REPORT OF THE GOVERNMENT OF
IRELAND
(CCPR/C/IRL/Q/3)*
[23 June 2008]
Constitutional and Legal Framework within which the
Covenant and the Optional Protocol are Implemented (Article
2).
Issue 1
1.
As the Committee will be aware, Ireland has a dualist
legal system and consequently international agreements to
which Ireland becomes a party are not automatically
incorporated into domestic law. By virtue of Article 29.6 of
the Constitution of Ireland, the text of an international
agreement can only be expressly incorporated into the
domestic law of the State as determined by the Legislature.
Where a measure to implement an international agreement
would require a change to the Constitution this in turn
requires a referendum to be put to the electorate. With
every international agreement consideration must be given
to the position under domestic law and whether the
obligations of the State under the agreement are already
provided for under the domestic legal framework. Where
national law does not cover the requirements of the
international agreement the necessary means to secure
compliance must be considered.
2.
Many of the fundamental human rights contained within
the Covenant are already part of the domestic law of Ireland
by virtue of provisions in the Constitution of Ireland,
including those areas of human rights law which have been
developed by the Irish Supreme Court and High Court
through the doctrine of unenumerated personal rights under
Article 40.3 of the Constitution. Certain rights are also
protected by legislation and the common law. Ireland, in

conformity with its obligations to the Covenant, has chosen


to implement its obligations under the Covenant using these
mechanisms rather than by direct incorporation.
3.
As the protections in the Covenant are effectively part
of Irish law by means other than incorporation, as described
above, the Covenant itself is rarely called on by persons
seeking to vindicate their rights before the Courts. However,
litigants may raise the Covenant in proceedings and there
are a number of instances of this, but the Courts require
parties to establish their rights by reference to the applicable
provisions in domestic law. By way of illustration, in
Greendale Developments Ltd (in liquidation) v McQuaid
[2000] 2 IR 514 and in Bula Ltd v Tara Mines (no 6) [2000]
4IR 412, reference was made in the proceedings to Article
14.1 of the Covenant, but it was the Constitution, and in
particular Article 40.3 of the Constitution, which was relied
on by the Court in those cases.
4.
In cases before the High Court involving reviews of
applications for refugee status, there are a number of
instances where the Covenant is referred to, as it features in
the consideration at earlier stages of the process. Please
see examples from written determinations of the High Court
which cite the Covenant at Annex A.
Issue 2
Article 10 paragraph 2
5.
As set out in its Third Periodic Report, Ireland continues
to make progress towards full implementation of the
principles in Article 10(2), with a high percentage of the daily
average of unconvicted prisoners accommodated at a
designated remand facility. For the present and pending the
completion of the current extensive building programme, the
continuing pressure on prison accommodation as a whole,
considerations of redundancy, and the preference for
proximity to home on the part of many unconvicted

prisoners prevents the provision of fully separate


arrangements throughout the system.
6.
Nevertheless, the intention remains that each
committal prison would have a separate area for
unconvicted prisoners and, as can be seen from the material
provided in the Third Periodic Report, and in the response to
Issue 11 below, substantial investment is being made in
extending and improving prison accommodation facilities
into the future.
7.
Irelands reservation to Article 10.2 will be kept under
review in the light of the expansion of prison spaces.
Article 14
8.
Ireland reserved the right under Article 14 of the
Covenant to have minor offences against military law dealt
with summarily in accordance with current procedures,
which, may not, in all respects, conform to the requirements
of Article 14 of the Covenant.
9.
The Defence (Amendment) Act 2007 was designed to
ensure that the conduct of military trials is fully compatible
with Article 14 of the Covenant. The provisions of the Act
stipulate that a commanding officer is no longer able to
award a custodial punishment for any offence under military
law that may be dealt with summarily by him or her
(described in the Act as disciplinary and not criminal
offences). An accused person has an absolute right to elect
for Court-Martial and to appeal any determination by a
commanding or authorised officer to a Court-Martial. The
Court-Martial system has been amended to remove any
doubt as to its independence or impartiality. Prior to the
commencement of the remaining provisions of the
Defence (Amendment) Act 2007, which will make those
provisions operational, it is necessary to put the following in
place by way of secondary legislation (ie Ministerial Order):


new Courts-Martial Rules

revised Rules of Procedure for Courts-Martial

revised Courts-Martial Legal Aid Regulations

amendments to six existing Defence Force Regulations


to reflect the provisions of the Act
10. Work on all of these is at an advanced stage and it is
expected that this will be completed in the very near future,
so allowing the Act to be fully commenced. Once the Act is
commenced, Ireland will then be in a position to withdraw its
reservation under Article 14. Every effort will be made to
have the necessary steps taken so that the reservation can
be removed before the examination of the Report on 14 and
15 July.
Article 19 paragraph 2
11. The question of the maintenance of this reservation is
under active consideration in the context of the new
Broadcasting Bill currently before the Oireachtas and it is
hoped to withdraw the reservation at least in part when the
Bill is enacted.
Article 20 paragraph 1
12. Ireland has no plans to withdraw the reservation to
Article 20 paragraph 1 at this time.
Issue 3
13. Where developments with regard to the
recommendations contained in the Committees previous
concluding observations relate to an issue raised by the
Committee in the current list of issues, this information is
included under the specific issue. Information on
developments regarding other recommendations is attached

as Annex B.
Non-Discrimination and Equal Rights of Women and Men
(Articles 2, 3, 26).
Issue 4
14. Cosc, the National Office for the Prevention of
Domestic, Sexual and Gender-based Violence, was
established in June 2007 as an executive office of the
Department of Justice, Equality and Law Reform with a crossgovernment mandate. Cosc's key responsibility is to ensure
the delivery of a well co-ordinated "whole of Government"
response to domestic, sexual and gender-based violence and
it carries out this responsibility by facilitating action for the
protection of victims as well as the prevention of these
crimes and the provision of services for those affected.
15. To that end, early priorities for Cosc include the
implementation of a Priority Research Programme which will
lay a foundation for effective strategies to address domestic,
sexual and gender-based violence. In particular, the
programme includes a mapping project in relation to
services provided by both State and non-State organisations
to those affected by domestic, sexual and gender-based
violence. This initiative will help to identify gaps in the
provision of services for the protection of women from
violence and should form a solid basis for the actions needed
to address those gaps.
16. In recent years considerable resources have been
devoted to public education at both national and local level.
This work is a major priority for Cosc and its Priority Research
Programme includes a project which entails conducting a
general population attitudinal survey on domestic abuse.
The survey should provide the basis for the effective
implementation of public awareness raising activities
provided for in Coscs Communications Plan for 2008 and

2009. Preparatory work on the survey is well advanced and


it is expected to complete the survey by September 2008.
17. The Health Service Executive (HSE) currently funds 16
Rape Crisis Centres, 20 Refuges and 25 Support Services all
providing services to victims of domestic or sexual violence.
In 2007, 4.5 million was allocated from the Department of
Health and Children to HSE for Violence against Women
services.
18. Additional funding of 1.5 million was allocated to the
implementation of the recommendations of the Review of
Sexual Assault Treatment Service. The HSE is currently
implementing these recommendations which include
standardisation of existing units and provision of additional
units where appropriate.
19. For recent years there are no available figures on
crimes of domestic and sexual violence based specifically on
gender. One of the priorities for Cosc under its research
programme is to examine data collection systems and
procedures to address data deficits in this area.
Issue 5
20. The recommendations of the All-Party Oireachtas
Committee on the Constitution in relation to the role of
women will be considered in the context of any general
proposals to implement those recommendations.
21. Arising from the recommendations of the National Plan
for Women (2002) and a commitment in Irelands social
partnership agreements, a National Womens Strategy has
been developed and was launched by the Taoiseach (Prime
Minister) on 18 April 2007.
22. The National Womens Strategy addresses the issues
that remain to be addressed on the road to full equality

between women and men in Ireland, over the period 2007 to


2016. The Strategy, which contains 20 key objectives and
over 200 actions, aims to:

Equalise socio-economic opportunity for women


Ensure their well-being
Engage women as equal and active citizens.

23. A funding package of 58.64 million has been set aside


in the National Development Plan 2007 2013 to implement
the Strategy. This funding is in addition to the 68 million
set aside for positive actions under the Equality for Women
Measure, which is also in the National Development Plan.
24. Implementation of the Strategy is being overseen by
the Department of Justice, Equality and Law Reform in
collaboration with an Inter-Departmental Committee which
meets twice yearly. This Committee will also report to a
cross-sectoral monitoring committee, which will also include
key State Agencies and the Social Partners, under the
chairmanship of the Minister of State with responsibility for
Equality, Disability and Mental Health.
Issue 6
25. The Government has committed, in the Agreed
Programme for Government, to legislating for civil
partnerships as early as possible in the lifetime of the
Government. The Heads of a Civil Partnership Bill, which will
provide a registration mechanism for same-sex couples who
choose to register their relationship and for the
consequences of registration, has been drafted and is
expected to go to Government on 24 June 2008 for approval
to draft the Bill. In addition to providing for civil partnership
registration for same-sex couples, the Heads of Bill establish
a 'Redress scheme' for long term cohabitants and provide for
legal recognition of agreements between cohabitants
regulating their financial affairs. The redress scheme is

intended to give protection to a vulnerable party at the end


of a long-term opposite-sex or same-sex relationship.
26. The Government are aware of the need to look at
changing the law on birth registration to allow a transgendered person to obtain a birth certificate in their new
gender and this is under consideration. This matter is
complex and requires careful examination both of the rights
of trans-gendered persons and others, such as family
members, who might be affected by such a change.
Detailed consideration of the matter will be required when
litigation currently before the Supreme Court is adjudicated
upon.
Counter Terrorism Measures and Respect of Covenant
Guarantees
Issue 7
27. The primary purpose of the introduction of the Criminal
Justice (Terrorist Offences) Act 2005 was to give effect in Irish
law to the various international instruments aimed at
counteracting terrorism, particularly in the changed
circumstances which characterise the international
environment since September 2001.
28. Ireland's legislation has not adopted the approach of
defining terrorism per se. In keeping with the approach
adopted over the years in Irish law the criminalisation of
terrorism has focused on the various offences involved and
Irish legislation attributes a special character to these
offences where they are carried out in the context of terrorist
or terrorist-linked activity. The definitions of "terrorist
activity" and "terrorist-linked activity" and the offences for
the purposes of these definitions are clearly set out in the
Criminal Justice (Terrorist Offences) Act 2005. The offences
which are set out in the Act are offences under Irish law.

29. The Offences Against the State Acts 1939-1998


derogate from the general law in providing for the possibility
of detention in custody for a period of up to 72 hours prior to
being charged in connection with the commission of certain
offences. Judicial intervention in such a case is required
after the first 48 hours detention. Section 30 of the 1939
Act, as amended by the 1998 Act, applies to offences under
the Offences against the State Acts 1939 to 1998 and
scheduled offences, and includes offences involving firearms,
explosives, or membership of an unlawful organisation.
30. The Government is completely opposed to the practice
of so-called extraordinary renditions. The Government has
made it clear that any person with credible information that
Irish airports have been used for any alleged unlawful
purpose should immediately report their concerns to the
Garda Sochna (National Police Service), which would have
responsibility for investigating such matters. On the basis of
such reporting or any other information, where the Garda
Sochna reasonably suspects that an offence is being
committed, statutory powers of entry and arrest are
available, subject to international law.
31. Where complaints of alleged unlawful activity
concerning the use of Irish airports have been made to the
Garda Sochna, investigations have ensued and, where
appropriate, files have been submitted to the Director of
Public Prosecutions. In all these cases, no further action was
found to be warranted, owing to a lack of any evidence of
any unlawful activity.
32. In this context, it is considered that all reasonable,
appropriate and sufficient measures have been and are
being taken to ensure that Irish airports are not being used
for any unlawful activity.
33. The assurances the Government has received from the
US authorities are specific that prisoners have not been
transferred through Irish territory, nor would they be, without

our permission. These assurances have been confirmed at


the highest level. The assurances are of a clear and
categoric nature, relating to facts and circumstances within
the full control of the US Government and are the result of
inter-agency consultation. The Government are completely
satisfied that it is entitled in international law to rely on the
assurances repeatedly given by the US Government.
34. The matter of the establishment of a parliamentary
inquiry into extraordinary renditions has been extensively
debated in the Houses of the Oireachtas, where both Houses
have passed motions supporting the Governments policy in
this area. Indeed the Senate, Seanad ireann, has on three
separate occasions voted not to institute a specific inquiry.
No evidence has ever been produced, nor any concrete
allegation made, at any point that any person has ever been
subject to extraordinary rendition through Ireland.
Derogation (Article 4)
Issue 8
35. Ireland does not have any derogation under Article 4.
Any derogation that might in the future be made would be
formulated in accordance with Irelands obligations under
the Covenant.
Right to Life (Article 6)
Issue 9
36. Following the 2002 Referendum, and on the
recommendation of the All-Party Oireachtas Committee on
the Constitution, the Government established the Crisis
Pregnancy Agency (CPA) as part of a strategy to combat
crisis pregnancies. The mandate of the Agency is to achieve
a reduction in the number of crisis pregnancies by the
provision of education, advice and contraceptive services; to

achieve a reduction in the number of women with crisis


pregnancies who opt for abortion by offering services and
supports which make other options more attractive; and the
provision of counselling and medical services and other
health services after crisis pregnancy.
37. The Agencys first Strategy was published in November
2003 and covered the period 2004 2006. In brief, the
Strategy highlighted the actions necessary to prevent crisis
pregnancies, to support those with crisis pregnancies and to
provide counselling and medical services to women after a
crisis pregnancy. On 19 November 2007 the Agency
published a second strategy, setting out its objectives for the
period 2007 2011.
38. Since its establishment the Agency has worked very
effectively, focusing on all aspects of crisis pregnancy and
ensuring the development of high-quality services and
supports.
39. The Agency works to achieve its objectives principally
through its communications programmes, its research
programme and its funding programme. It also works to
contribute to and inform policy development and service
delivery by Government Departments and other State and
non-governmental organisations. The total amount of
revenue funding made available to the Agency for 2008 is
8.959 million.
40. Counselling services provided by the Agency, which are
free to women experiencing a crisis pregnancy. Information
on safe and reputable abortion services in other jurisdictions
is available from a number of counselling services, for those
who opt for abortion following non directive counselling.
41. Figures produced by the Agency in June 2008 show that
the number of Irish women seeking abortions abroad has
fallen for the sixth successive year. The Agency attributes
this to the wider availability of non-directive pregnancy

counselling, greater use of contraception and improved


relationships and sexuality education in schools and in the
home.
Prohibition of Torture and Cruel, Inhuman or Degrading
Treatment, and Prohibition of Slavery, Security of the Person
and the Right not to be subjected to Arbitrary Detention, and
Treatment of Detainees (Articles 7, 8, 9, 10)
Issue 10
42. The Commission is statutorily independent in the
exercise of its functions. Furthermore neither a member nor
a former member of the Garda Sochna can be a member of
the Commission. A similar prohibition exists in the case of
current members of the Oireachtas. The Commission is
chaired by a High Court judge and its members are of high
calibre.
43. The Commission is well resourced with almost 100 staff.
This is five times the staffing complement of its predecessor
the Garda Sochna Complaints Board. Included in that
staffing complement is an independent investigative
capacity with considerable professional expertise.
44. The Ombudsman Commission is empowered directly to
investigate all complaints, and must directly investigate
complaints concerning the death of, or serious harm to, a
person in Garda custody. Designated officers of the
Ombudsman Commission have Garda powers of
investigation for that purpose. The Ombudsman Commission
can also refer complaints to the Garda Commissioner for
investigation, with or without supervision. It also has the
power to investigate of its own motion, without a complaint
having to be made, and where it is desirable in the public
interest, any matter that appears to it to indicate that a
member of the Garda Sochna may have committed an
offence, or behaved in a manner that would justify

disciplinary proceedings. The Minister may also request the


Ombudsman to investigate any such case, where he
considers it desirable in the public interest to do so.
45. In the first year of operation (from 9 May 2007), a total
of 2,905 complaints were made by members of the public.
Of these, 746 were deemed inadmissible. 294 referrals were
made by the Garda Commissioner relating to incidents where
the Commissioner was of the view that the conduct of a
garda might have resulted in the death of or serious harm to
a person. Of these referrals, 6 related to deaths in or
following Garda custody or following Garda contact, and 11
related to deaths arising from road traffic incidents.
46. The Ombudsman Commission acknowledges that a
backlog of complaints and investigations has accumulated
and cites a number of factors as having contributed to this,
mainly staffing vacancies and lack of appropriate IT systems.
However, additional investigators have taken up posts since
January 2008 and a fully developed case management has
recently been introduced.
47. The Garda Sochna Ombudsman Commission opened
its doors on 9 May, 2007. As a consequence it is not
possible to compare its 2007 figures with directly
comparable 2006 figures. However, in general, the number
of complaints being received by the new body exceeds the
number which were received in 2006 under the old
complaints regime, which was operated by the Garda
Sochna Complaints Board. However, it is generally
recognised that the public had lost confidence in the old
regime and this was one of the reasons for the establishment
of the new regime.
48. The requirement to conduct audio-visual recording of
interviews is set-out in Criminal Justice Act 1984 (Electronic
Recording of Interviews) Regulations 1997. The Regulations
specify that interviews of detained persons under the
appropriate legislation must be electronically recorded with

any exceptions only as provided for in the Regulations. The


Garda Sochna has indicated that interviews are
electronically recorded in approximately 98% of cases and
the reason why the balance are not recorded is accounted
for by the interviewee objecting to the recording taking place
or the equipment being already in use/ the room is not
available.
49. In Irish law judges have no role in the investigation of
complaints of ill-treatment in Garda custody. This is a matter
for the appropriate statutory body, as set out in paragraphs
158 to 160 in the Third Periodic Report.
50. As regards cases before the courts, where a police
officer is charged with an offence arising from alleged illtreatment, it is a matter for the presiding judge and, where
appropriate, the jury to consider the evidence. The Courts
are, subject only to the Constitution and the law, completely
independent in the exercise of their judicial functions.
51. There are no plans to modify current statutory
provisions governing access by a person in police custody to
his or her lawyer.
52. The Garda Sochna is under a statutory obligation to
notify a detained person of his or her entitlement to consult
a lawyer, and to notify the lawyer, at the request of the
detained person of his or her detention (section 5 of the
Criminal Justice Act 1984). Regulation 11 of the Criminal
Justice (Treatment of Persons in Custody in Garda Sochna
Stations) Regulations 1987 provides that an arrested person
shall have reasonable access to a lawyer of his or her choice
and be able to communicate with him privately. Such
consultations may take place in the sight of but out of
hearing of a member of the Garda Sochna.
53. Garda interviews with detained persons are required by
statute to be recorded by electronic means subject to certain
limited exceptions (Criminal Justice Act 1984 (Electronic

recording of interviews) Regulations 1997). The audio-visual


recording of interviews together with the detained person's
entitlement to reasonable access to his or her lawyer
safeguard the interests of the detained person.
Issue 11
54. The Prisons Bill 2006 was enacted on 31 March 2007.
55. The Prisons Act 2007 provides a legislative basis for the
drafting of new prison rules and in that context the Prison
Rules 2007 came into affect on 1 October 2007. The Prison
Rules provide a modern regulatory framework for the
governance of our prisons and reflect the provisions of the
European Prison Rules and modern best practice in the area.
They constitute the first major revision of prison regulation in
this State since 1947.
56. The Act also provides for the construction of major
prison projects and one such project for the construction of a
new prison in North County Dublin is currently progressing
through the required legislative phases with a view to
construction commencing later this year and being
completed in 2011/12 approximately.
57. In the last 12 years the Government and the Irish Prison
Service have provided in the region of 1,200 additional
prison spaces.
58. The Irish Prison Service is committed to providing safe
and secure custody to all offenders committed to its care
and regularly approves transfers out of affected prisons to
other locations in order to prevent unacceptable occupancy
levels. The Irish Prison Service has no control over the
number of people committed to prison and must take
everyone committed by the Courts. The total number of
prisoners in custody on 9 May 2008 was 3,542 compared
with a bed capacity of 3,597. This represents an occupancy
level of 98%. The prison system is, of course, subject to

peaks and troughs and numbers can be particularly high


when the courts are at their busiest.
59. Approximately 75% of prisoners in custody now have
24-hour access to in-cell sanitation, thanks to substantial
investment in the prison estate in recent years. The state
recognises the necessity to further modernise and expand
the prison estate and that is why the Government has
embarked on an ambitious prison-building programme,
which will result in the replacement of nearly 40% of the
entire prison estate and the ending of 'slopping out'. In this
context, the following developments have taken place or are
planned in the near future:

Work has been completed on the provision of a new


purpose-built 44-bed accommodation unit in Shelton Abbey.

The provision of a new 60-bed accommodation block


has been completed in Loughan House.

The new C Block in Portlaoise Prison will provide 138


spaces. It is expected that these cells will be available in
2008.

The new remand wing in Castlerea Prison will provide


an extra 64 spaces. It is expected that this additional
capacity will be available in mid 2008.

A new wing under construction in Wheatfield Prison will


increase capacity by 144 spaces. It is expected that these
spaces will be available in 2009.
60. In the longer term the Irish Prison Service is
constructing major new prison complexes in North County
Dublin and Munster, anticipated to provide 1400 and 440
additional spaces, respectively. The new facilities will offer
significant improvements in the areas of work-training,
education and medical services as well as providing in-cell
sanitation facilities in predominantly single cell

accommodation.
61. In Ireland there are a number of alternative sanctions to
detention. A list is contained in Annex C.
Issue 12
62. Aside from legislative developments, other strategies
have been put in place to assist the process of dealing with
this reprehensible form of criminal activity.
63. The Anti-Human Trafficking Unit has recently been
established in the Department of Justice, Equality and Law
Reform. The Unit will work to ensure that the State response
to trafficking in human beings is coordinated, comprehensive
and holistic. A key element of this strategy will be the
development of a National Action Plan to Prevent and Tackle
Trafficking in Human Beings to be approved by the High
Level Group for submission to the Minister. The Plan will
have a strong focus on preventing trafficking becoming a
major issue in Ireland. It is being developed under four main
headings: Protection of Victims, Child Trafficking, Prevention
and awareness raising and Prosecution of Traffickers. The
objective is to have the plan drafted and ready for
submission to the Minister by the end of 2008 with a view to
publication when approved by the Minister and Government
as soon as possible thereafter.
64. An Interdepartmental High Level Group has been
established to recommend the most appropriate and
effective responses to trafficking in human beings to the
Minister. The Group comprises of representatives from
various Government Departments. The group had its first
meeting in March 2008 and it was agreed that the best way
to proceed would be to engage with NGOs and
representatives of the High Level Group in the manner of
roundtable discussions, to be held on a quarterly basis
initially. The first roundtable discussion was held on 14 May,

2008. In addition, 5 interdisciplinary Working Groups are


being established to progress matters and, in turn, report to
the High Level Group. They will deal with: Child Trafficking,
Labour Exploitation Issues, Development of a National
Referral Mechanism, Awareness Raising and Training and
Sexual Exploitation issues.
65. All of these developments will ensure that the State will
have the necessary mechanisms in place to deal with victims
of human trafficking if and when they are encountered.
66. Section 10 of the Criminal Law (Human Trafficking) Act
2008 gives the judge the power to exclude persons from
court proceedings, other than officers of the Court and
persons directly concerned in the proceedings, to prevent
publicity in circumstances where publicity surrounding a
case might place the alleged victims of trafficking and their
families at risk. Section 11 guarantees the anonymity of
alleged victims unless waived by the judge. Section 12
amends section 12 of the Criminal Evidence Act 1992 to
make it possible, for instance, for an alleged victim to give
evidence through a live video link from either within the
State or abroad.
67. Section 124 of the Immigration, Residence and
Protection Bill 2008 provides for a period of recovery and
reflection of 45 days in the State for alleged victims of
trafficking and also, in circumstances where the person
trafficked wishes to assist the Garda in any investigation or
prosecution in relation to the alleged trafficking, a further six
months period of residence, renewable, to enable him or her
to do so.
68. An administrative framework will be introduced to
provide for a period of recovery and reflection in Ireland prior
to the enactment of the provisions of the Immigration,
Residency and Protection Bill.

Issue 13
69. Resources allocated to the Garda and the Courts have
increased substantially in recent years, in line with an
increase of approximately 50% across the Justice and
Equality sector generally since 2003.
70. Notwithstanding the increase in funding, however, and
bearing in mind the many demands on these services, the
Irish authorities remain satisfied that the maximum period
provided for is necessitated by practical resource and
operational considerations.
71. Ireland currently does not have any specifically
dedicated facilitates for detaining such persons. Persons
held on immigration related matters (whether asylum
seekers or others) are, as far as practicable, detained in
institutions away from convicted prisoners where the regime
is not of a high security nature. Restrictions are kept to a
minimum, consistent with order and control. Our prisons are
governed by the statutory obligations laid down in the
provisions of the Prison Rules 2007 which reflect the
European Prison Rules and modern best practice
internationally.
Imprisonment for Failure to fulfil a Contractual Obligation
(Article 11)
Issue 14
72. Ireland does not have legislation providing for criminal
sanctions or imprisonment for failure to fulfil a contractual
obligation. Imprisonment for non-payment of debt was
abolished in Ireland by the Debtors (Ireland) Act 1872.
However, refusal to fulfil a contractual obligation or pay a
contractual debt may amount to civil contempt of court, for
which imprisonment may be imposed.

73. Contract law is a civil matter and the primary remedies


available to a complainant, through the Courts, would be
enforced performance of the contract or damages. Where a
person refuses to obey a court order relating to providing a
remedy for contractual default to another
person/organisation, imprisonment may be one of a number
of remedies ultimately for non-compliance. The
imprisonment of such defaulters is very much a last resort.
The person will, generally, have been given every
opportunity to fulfil the contract or to discharge the debt.
74. The number of persons in custody in Ireland for nonpayment of debt on 23 May, 2008 was 8 out of a total prison
population of 3,574 which represents 0.22% of the prison
population.
75. The Law Reform Commission in its Report on Contempt
in 1994 considered that the case for abolition of the sanction
(of imprisonment) had not been established in regard to civil
contempt. The Commission felt that the powers of the court
in this regard were coercive more than punitive. It is an
appropriate remedy only where the desired result cannot be
achieved by other means and the defendants active
cooperation is a vital ingredient.
76. There are no proposals in the current Government
Legislative Programme to reform the law in regard to civil
contempt in how it might be applied to default of contractual
obligations or failure to pay a civil debt.
77. A person can be committed to prison for civil contempt
for failure to comply with an order of the Court to discharge
a debt by instalments. Instalment orders involve a statutory
procedure to require the examination of a debtors means by
a court which will then consider fixing a periodic instalment
to be paid to discharge the debt taking into account the
income and outgoings of the person concerned. If the
person against whom the order is made fails to meet
periodic payments an application may be made for arrest

and committal to prison but this requires a further hearing


by the judge under Section 18 of the Enforcement of Court
Orders Act 1926, as amended by Section 6 of the
Enforcement of Court Orders Act 1940. The judge may not
order an arrest and imprisonment unless satisfied that the
failure to pay was due to wilful refusal or culpable neglect.
The judge may treat the hearing for imprisonment as an
application to vary the instalment order and instead of
ordering imprisonment may adjust the payments under the
instalment order to meet the debtors changed
circumstances.
78. It should not be presumed that all persons failing to
meet their debts do so because of poor financial
circumstances. Imprisonment is only used in cases where
the Courts are satisfied that a person has the ability to
discharge a debt, but has not done so. In many cases, when
a person committed for failure to pay a debt or fine is faced
with the reality of imprisonment, they do, in fact, make
payment.
Expulsion of Aliens and the right to Fair Trial (Articles 13, 14)
Issue 15
79. Following the General election in May 2007, the
Immigration, Residence and Protection Bill 2007 was not
restored to the business of the Irish Parliament. In January
2008 a revised Immigration, Residence and Protection Bill
2008, incorporating much of the substance of the 2007 Bill,
was published. That Bill is currently before the Irish
Parliament. In this regard, it should be noted that the
provisions below may be subject to further amendment
arising from the legislative process before Parliament.
80. Section 4 of the Bill states that all foreign nationals
present in Ireland must be here lawfully in accordance with a
permission given, or deemed to be given, to them. A foreign

national may become unlawfully present in circumstances


where (a) the permission given to them has expired, has not
been renewed, or has been revoked or (b) they entered
Ireland in such a way as to avoid the immigration process,
thus never acquiring permission to be in Ireland. A foreign
national who lawfully enters Ireland will be aware of the
expiration date of any entry or residence permission given to
him or her, or will otherwise receive notice of any proposed
non-renewal or revocation of a permission.
81. In circumstances where a foreign national is lawfully
resident in Ireland and it is proposed to interfere with that
lawful residence by the non-renewal or revocation of a
permission processes are in place which allow the foreign
national to make representation. Sections 39 to 45 outline
processes for non-renewal, or, as the case may be,
revocation of residence permission. These sections also set
out the circumstances in which a review of a decision not to
renew can be sought or a representation can be made
against a proposal to revoke permission. For example,
Section 45 provides that in cases where the Minister
proposes to revoke residence permission, the person
affected has 15 days to make representations as to why this
should not be done. It is only after the exhaustion of these
processes that a persons presence in Ireland will become
unlawful.
82. In accordance with Section 23 persons who apply for
protection are allowed entry to Ireland for the purpose of
examining their claim. All persons seeking protection will be
granted permission to remain for so long as it takes to
assess their claim and any appeals that might arise.
83. A person who is unlawfully in Ireland is under an
obligation to remove themselves from Ireland. Failure to do
so may result in him or her being removed. A person
detained for this purpose may only be detained for as long
as is necessary for the purpose of effecting removal and
cannot be detained for more than 8 weeks. A person so

detained would have available to him or her the


constitutional remedy of a habeas corpus and also the right
to challenge his or her removal by way of judicial review. In
all cases it should be noted that Section 53 of the Bill
contains an absolute prohibition on Refoulement, no person
may be removed from Ireland if doing so would place them
in danger.
84. Section 56 introduces an alternative to detention,
allowing a foreign national to remain at liberty subject to
conditions. Section 58 provides that persons under 18 will
not normally be detained for purposes of removal.
Issue 16
85. In January 2003 the Supreme Court ruled in the case of
D.L. and A.O. and others Vs the Minister for Justice [2003] 1
I.R.1, that the foreign national parent of an Irish born child
did not have an automatic entitlement to remain in Ireland
with the child. At that time there was significant numbers of
applications for residency in Ireland on foot of parentage of
an Irish born child.
86. The Houses of the Oireachtas subsequently proposed
an amendment to the Constitution which was approved by
the people by way of referendum. The amendment inserted
a new provision into the Constitution at Article 9.2 which
provides as follows:
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.
This section shall not apply to persons born before the date
of the enactment of this section.

87. The effect of this amendment was to qualify Article 2 of


the Constitution, which provides for the entitlement to
citizenship of every person born in Ireland.
88. The Irish Nationality and Citizenship Act 2004 provides
for the necessary amendments to the Irish Nationality and
Citizenship Acts 1956 to 2001 so as to give effect to the
amendment to the Constitution.
89. In order to address the situation of the parents of a
child born on the island of Ireland on or before the 31
December 2004 (when the Act came into force) an
administrative arrangement was put in place in early 2005,
which processed these applications for residency on a case
by- case basis. Of a total of 17,917 applications, 16,984
were granted permission to reside in Ireland.
Issue 17
90. The need for the retention of the Special Criminal Court
arises on two grounds. On the one part, there remains a
credible paramilitary threat to public order and peace in
Ireland from dissident republican organisations. This is
confirmed on a consistent basis by the Garda Sochna and
has also been confirmed repeatedly in the reports of the
International Monitoring Committee established by the Irish
and British Governments to monitor and assess paramilitary
activity in Northern Ireland.
91. On the second part, the threat posed by organised
crime provides further justification for the maintenance of
the Special Criminal Court. There have been instances in
criminal trials of the threat of intimidation of and
interference with juries by criminal gangs and their
members.
92. Under the Offences Against the State Act 1939, the

Government may establish such additional number of special


criminal courts as it thinks fit. It did so in December 2004,
although no additional judges have been appointed to date.
In circumstances where a threat exists which is directed
against the State itself and has the possible effect of
undermining the legitimacy of the rule of law, the
Government considers it appropriate that it should have at
its disposal a mechanism to deal swiftly with such a threat in
a manner that upholds the integrity of the administration of
justice. The ability to establish additional special criminal
courts is also important in ensuring the right of the individual
before the law not to be faced with an unavoidably lengthy
delay before coming to trial.
93. It is considered that the present circumstances warrant
the retention of the Special Criminal Court. However, its
operation is kept under continual review by the Government.
Issue 18
94. Funding for Civil Legal Aid Scheme has been increased
substantially in recent years with a view to keeping waiting
times to a minimum (funding has increased from 18.388m
in 2004 to 26.988m in 2008, an increase of 47%).
95. The scheme applies a means test which takes into
account living costs so as to ensure that persons of modest
means qualify for assistance under the scheme. A study has
been commissioned to analyse actual eligibility levels of the
civil legal aid scheme and the indications from this exercise
are that a substantial proportion of the population qualifies
for civil legal aid.
Freedom of Religion (Article 18)
Issue 19

96. This issue was considered by the All-Party Oireachtas


Committee on the Constitution in its Fourth Report - The
Courts and the Judiciary (published 1999). The majority view
of the Committee was that a judge should have a choice
between a religious and non-religious declaration. The
Committee stated that because the majority of people in
Ireland hold religious beliefs, it would not be desirable to
delete the references to God from the declaration.
Accordingly, the Committee recommended a choice of
declaration. A Referendum would be required to amend the
Constitutional provision in question and no such measure
has been actively considered to date. Notwithstanding this,
the issue remains the subject of review.
Rights of Minorities (Articles 26, 27)
Issue 20
97. The Report of the High Level Group on Traveller Issues
was approved by the Government in March 2006. Important
recommendations which have been followed through at
Departmental level include the publication of the Report and
Recommendations for a Traveller Education Strategy, in
November 2006, and the commencement of work on an AllIreland Traveller Health Study in 2008.
98. A key aspect of the approach recommended by the
High Level Group is developing effective coordination of
actions among agencies operating under the 34 County and
City Development Boards (CDB), coupled with effective
consultation with Travellers and their representatives. Since
2006, Traveller Interagency Groups have been established
under each CDB to coordinate the efforts of state agencies
and other stakeholders. This approach has:

Established a dedicated local coordination mechanism

Established a focus for developing best practices in


service delivery


Established a more broad based forum to facilitate
engagement with local Traveller representatives (previously
accommodation was the primary focus)

Highlighted employment as an area where tangible


progress can be made by public bodies

Shown that all stakeholders can play a significant role in


improving outcomes locally.
99. The Department of Justice, Equality and Law Reform is
monitoring progress and supporting the dissemination of
good practices in implementing the interagency approach. It
is clear that, while there are variations in the performance of
the various Interagency Groups, this approach can add
significant value to social inclusion measures for Travellers
and lead to more productive working relationships between
all stakeholders.
100. In addition to the High Level Group, which focussed
particularly on the effective functioning of state agencies, a
National Traveller Monitoring and Advisory Committee
(NTMAC) was established in March 2007. This committee
replaced the Traveller Monitoring Committee which reported
on implementation of the 1995 Task Force Report. The
NTMAC provides a broadly based and inclusive forum for
dialogue between the relevant social partners, and its
establishment followed on a commitment in the national
partnership agreement Towards 2016 to give concentrated
attention to achieving greater progress for Travellers. The
NTMAC, which includes four national Traveller organisations
along with a number of prominent individual Traveller
representatives, has a specific remit to advise on policy in
relation to the Traveller Community. It is due to make its first
advisory report in 2009. This will be an essential input to the
ongoing process of improving and refining the effective
delivery of supports and services to the Traveller Community.
101. Through the National Action Plan for Social Inclusion
2007-2016 and the Activation Programme for People of
Working Age, the disadvantages and discriminations against

members of the Traveller community are being addressed in


a realistic way in conjunction with input and participation
from the Traveller community.
Health
102. Travellers poor health status has long been a cause for
concern. Significant investment has been made in Traveller
Health Services with 12 million of development funding
being allocated by the Department since 1997 in addition to
ongoing funding, of over 12 million. Structures have been
put in place to ensure the effective delivery of services.
Traveller Health units operate in each HSE area and work in
partnership with local traveller organisations while at central
policy level the Traveller Health Advisory Committee which
comprises representatives of the Department, the HSE,
Travellers and representatives of Traveller organisations
advise the Minister on policy in relation to Traveller health.
All-Ireland Traveller Health Study
103. Work began on the All-Ireland Traveller Health Study in
July 2007. This study will investigate the health needs of all
Travellers living on the island, North and South and is jointly
funded by the Department of Health and Children and the
Department of Health, Social Services and Public Safety
(DHSSPS) in Northern Ireland. The Study will cost 1.395
million with additional fieldwork costs of 0.3 million being
covered by the HSE and the DHSSPS. The study is expected
to take 3 years to complete. The Study will include a census
of the traveller population, examine the health status of
Travellers, assess the impact of the health services currently
being provided and identify the factors which influence
mortality and health status. The Study will take 3 years to
complete and will provide a framework for future policy
development and practice in relation to Travellers.
Accommodation

104. Ireland has ensured, through legislation, the active


participation of Travellers in formulating and implementing
policies for the provision of accommodation of Traveller
families both at national level and locally in every local
authority throughout the country. This participative and cooperative approach is set out in the Housing (Traveller
Accommodation) Act of 1998. Under the Act, the National
Traveller Accommodation Consultative Committee (NTACC)
was established to advise the Minister/Department in
relation to Traveller accommodation policy or on any related
matter referred to it by the Minister.
105. The national committee is mirrored at local level by the
Local Traveller Accommodation Consultative Committee
(LTACC) and provides a forum for:

Advice on the preparation and implementation of


traveler accommodation programmes

Advice on the management and maintenance of


traveller accommodation, and

To provide liaison between Travellers and the local


authorities.
106. Traveller representative organisations are valued
stakeholders and, and through their enthusiastic
participation in national and local fora, have contributed
significantly to the development and implementation of
Traveller accommodation policy here.
107. Local authorities reported that on 30 November 2007,
there were 8,099 Traveller families living in Ireland. This
figure included 5,436 families living in accommodation
provided by local authorities or with local authority
assistance, and 594 families living on unauthorised sites.
(Please refer to paragraph 611 of the Third Periodic Report
for further information).
108. Further to information provided in paragraph 616 of the
Third Periodic Report, it should be noted that 35 million was

spent on Traveller-specific accommodation in 2007, and the


budget for such accommodation has been increased to 40
million in 2008.
Participation in Political and Public Life
109. Registration as Electors: Irish electoral law enables
members of the Traveller Community to be registered as
electors, even where they have a nomadic lifestyle.
110. Guidelines for Registration Authorities, issued by the
Department of the Environment, Heritage and Local
Government, who prepare and maintain the register of
electors, recommend that as far as possible, the names of all
members of the travelling community who are eligible to
vote are included in the Register. While it can sometimes be
difficult to ascertain the place of ordinary residence,
registration authorities are advised that those members of
the travelling community who regularly occupy the same site
for considerable periods of the year should be registered
and, in this regard should liaise with all other relevant bodies
to ensure that as many eligible members of the Traveller
Community as possible are included in the Register.
111. Right to stand as candidates: Under electoral law, every
Irish citizen and every person ordinarily resident in Ireland,
over 18 years, who is not subject to any of the
disqualifications specified in law, is eligible for election to a
local authority. To be eligible for election to the national
parliament, a person must be 21 years of age.
The selection of candidates to stand for election is a matter
for each political party and the question of actively
promoting such activity rests with them.
112. In this regard it is worth noting the report of The Office
for Democratic Institutions and Human Rights (ODIHR) which
sent an Election Assessment Mission to Ireland to observe
the electoral process, in the context of the General Election

2007. The ODIHR met with representatives of traveller


organisations who had carried out election information and
awareness activities prior to the Election. This included voter
education initiatives, to target, in particular, the relatively
high number of illiterate voters in their community and to
encourage broader participation. Candidate forums were also
organised to raise awareness of the issues most important to
travellers.
113. ODIHR representatives were informed by the
representatives of the Traveller Community that no Travellers
ran as candidates in the 2007 General Election and no
Travellers had ever been represented in the Dil (House of
Representatives) or in the Seanad. However, a member of
the Traveller Community did run in the Seanad elections in
2007 and members of the Traveller Community are more
active in local elections in Ireland and the current Mayor of
Tuam is a Traveller. Representatives of the Traveller
Community reported that they did not have any complaints
about specific incidents of racist or intolerant discourse
during the election campaign.
Education
114. The Report and Recommendations for a Traveller
Education Strategy was launched in 2006 and covers all
aspects of Traveller Education from pre-school right through
to further and higher education within a lifelong learning
context. The Report contains many recommendations across
the education spectrum for parents, pre-school, primary,
post primary, further education, higher education and other
areas.
115. Within the Department of Education and Science an
Implementation Group was established to progress /
implement recommendations of the Report.
Integration and Inclusion

116. The core principle of the report is one of inclusion with


an emphasis on equality and diversity and the adoption of an
intercultural approach. This is in line with the Governments
recommendations in the National Action Plan Against Racism
(NAPAR) (2005) which recommends that, inter alia, Ireland

Develop a more inclusive and intercultural school


practice and environment through the whole school planning
process, admissions policies, codes of behaviour and whole
school evaluation

Accommodate cultural diversity within the curricula

Enhance access and education service delivery to


Travellers

Strengthen the participation of key stakeholders in the


development of an intercultural approach to education.
Educational Need versus Traveller Identity
117. The principle of individual educational need rather
than Traveller identity will be used as the criterion to
provide additional resources to all children, including
Traveller children. The Report and Recommendations for a
Traveller Education Strategy has outlined current provision
and has made a number of recommendations However, the
findings of the Inspectorate report Survey of Traveller
Education Provision in Irish Schools (2006) found that the
majority of Traveller children in primary and post-primary
school are not achieving at a level equal to their peers in the
settled community. In view of this a cautious approach will
be adopted on the implementation of some of the
recommendations. The Resource Teacher for Travellers
provision at primary level will be considered in the context of
the review of the general allocation of resources for special
needs which will take place in 2008.
Key Features of successful implementation
118. Integrated provision will be provided where Travellers
participate on an equal basis with other service users, but

recognising that, in some cases, positive affirmative action


may also be needed as a short term measure to enable
Travellers to gain the skills and competence to enable them
to participate equally in mainstream education, training or
employment. A phased transition from segregated provision
to integrated provision will be managed sensitively
incorporating best practice and taking account of the needs
of students, staff and parents.
Next Steps
119. Education is a vital element in supporting greater
Traveller participation and empowerment in our society.
120. The link between education, training and enterprise is
perhaps the most vital in helping to increase the range of life
choices that are available to Travellers. As noted above, the
key to success will be improvements in progression rates for
Travellers to the end of Junior Cycle, on to Senior Cycle and
from Senior Travelling Training Centres (STTCs) into further
studies, training or employment. Progression into Higher
Education also needs to improve. Therefore the
implementation plan for Traveller education has to be viewed
in the overall context of the Governments commitment to
improving outcomes for Travellers through sustained
interagency cooperation and positive engagement with
Travellers and other stakeholders.
121. A lifelong learning approach is needed where young
Travellers attend pre-school progressing through primary and
post-primary education to the end of senior cycle with
ongoing progression to further and or higher education. At
the same time adult Travellers need to be encouraged and
motivated to return to education and to progress up the
National Framework of Qualifications. Through their
successful involvement in education adult Travellers will gain
the knowledge, skills and confidence to act as mentors to
younger members of their community and to become
involved not only in their community but also in the

mainstream community and economy.


122. In summary, the aim of the Department of Education
and Science for Traveller education is to enable Travellers to
participate in an equal manner with other service users
through integrated educational mainstream provision. In
addition, the Department also recognises that for some
adults seeking second chance education the need for short
term positive affirmative actions to facilitate them in gaining
the skills and competences to transfer on and progress into
mainstream education, training or employment may be
required.
Employment
123. The Traveller Interagency Groups established in 2006,
following the Report of the High Level Group, have produced
a number of programmes to facilitate Traveller access to
employment. The focus has been on providing direct work
experience and employment opportunities within public
bodies. This had involved outreach programmes to canvass
the Traveller Community for job applicants, the development
of appropriate training, (supported by FS the National
Training Authority) and the provision of mentoring support
during training and in the workplace. Examples of the
successful initiatives to date include,

South Dublin County Council provided more than 40


positions (almost 30 are permanent full time positions). Also,
summer work experience programmes for Traveller students
can lead to opportunities for more formal work placements
on condition that second level education is completed.

Clare County Council has worked with FS and other


local agencies to promote Traveller enterprises and
employment. This has led to at least 16 full time or part time
positions for local Travellers, including five employed by the
County Council. In addition, two Travellers are employed as
Education Support Workers, based in a secondary school in
Ennis to promote increased educational attainment.


The Department of Justice, Equality and Law Reform
has supported initiatives in Dublin City which have led to the
registration of 15 companies, 3 sole traders, with further
registrations planned. This has supported up to 100 full and
part time jobs and relevant training/licence qualifications for
Travellers.

The Department of Finance initiated a Traveller


Internship Programme in the Civil Service (2006 -2007)
which provided work experience for 23 Travellers in
Government Departments and Offices. Some of the
participants have gone on to permanent employment or
third level education.
124. In 2005, FS commenced the development of an
initiative to expand employment prospects for Travellers.
Four areas (Dublin, Cork, Clare and Galway) were selected
and an interagency approach was put in place including a
National Monitoring Group on Traveller Issues. Local
Steering Groups were also established.
125. The outcome of the pilot resulted in 200 Travellers
securing Employment, Training or establishing Enterprises in
the four areas. An independent evaluation of the pilot
recommended expansion into other regions, and, in 2007
additional funding was sourced to expand into Counties
Roscommon, Kerry, Navan and Laois.
126. The focus in future will be to continue the roll out of the
initiative countrywide and to mainstream those aspects
which were successful in the pilot areas.
127. It should be noted that under the Special Initiative, the
FS Supported Employment Programme, which was
developed for People With Disabilities (PWD) is being
expanded to include Travellers in two pilot areas Navan and
Kerry. It will be useful to look at the results of these two
pilots at the end of this year and how the programme can be
adopted for Traveller clients. The range of supports include
(a) needs assessment (b) job sourcing (c) in-work supports to

ensure sustainability of employment and (d) aftercare and


mentoring aimed at supporting career development and
independence.
128. The re-established Monitoring Committee (NTMAC) is
examining a range of policy issues including employment
and training for Travellers. Both employers and unions are
represented on the NTMAC as are the Traveller
representative organisations and the public service. There is
a clear commitment to engage with the issues and come up
with workable practical long-term solutions.
129. There is scope for further development of similar
initiatives. This will require the continued development of an
Interagency Approach, and good working relationships with
Traveller representatives. At national level the input of the
National Traveller Monitoring and Advisory Committee will be
of particular importance.
Issue 21
130. The National Council for Curriculum and Assessment
(NCCA) has provided each teacher in primary and postprimary with a copy of Guidelines on Intercultural Education.
Opportunities to explore different cultures are promoted
throughout these Guidelines. With the arrival of newcomer
students the opportunities for teachers and their pupils to
welcome and respect difference - be that language, culture
or religion - has become a reality. Students can experience
globalisation at a local level.
Language
131. The presence of students whose mother tongue is not
English has been a major new challenge for schools and for
the Department of Education and Science in recent years. In
2007/2008 in the post-primary sector there were almost
21,000 students from 160 other nationalities enrolled. They

make up almost 7% of the students population. Almost 10%


of the primary population consists of newcomer students.
Many of these newcomers do not speak English in the home.
132. Considerable resources have been allocated to the
teaching of English to newcomer students. Schools with
pupils for whom English is not their first language are
entitled to language support. In 2001/2002 there were 262
English language support teachers. In 2007/2008 there are
almost 2,000 such teachers in the primary and post-primary
schools. The main emphasis has been to ensure that
students are enabled to speak English as soon as possible
and become integrated into an inclusive education system.
Support materials have been made available to assist the
mainstream teachers and also the English language support
teachers.
133. The students in post primary can present for Leaving
Certificate examination, which the students take at
approximately 17-18 years, in Arabic, French, German,
Hebrew Studies, Italian, Spanish, Japanese and Russian. In
addition, there is provision for the so-called non-curricular
languages in the Leaving Certificate examination. These
are the official languages of EU Member States which do not
appear as part of the normal school curriculum, but which
students may opt to be examined in if they fulfil certain
criteria, e.g. be from a member State of the EU and speak
the language as a mother tongue. In 2007, these official
exams were offered in Latvian, Lithuanian, Romanian,
Modern Greek, Finnish, Polish, Estonian, Slovakian, Swedish,
Czech, Bulgarian, Hungarian, Portuguese, Danish and Dutch.
134. The Department also funds mother-tongue classes
organised by immigrant communities for their children on a
limited basis. Immigrant groups can apply to the Department
for funding towards the promotion and maintenance of their
language and culture. Such support may take place on
school premises, by local agreement, outside of school hours
(usually at weekends). In addition, some international

countries, such as Poland, also provide their young nationals


with opportunities to maintain their mother tongue and
culture in out of mainstream school settings.
135. The Department of Education and Science supports the
promotion of mother tongue language and culture on a
limited basis. Immigrant groups can apply to the Department
for funding towards the promotion and maintenance of their
language and culture. Such support may take place on
school premises, by local agreement, outside of school hours
(usually at weekends).
Religion
136. Education legislation requires that the diversity of
educational provision in the State is taken account of, and
the right of parents to send their children to a school of their
choice is respected.
137. Under Section 30 of the Education Act 1998, no student
can be required to attend instruction in any subject which is
contrary to the conscience of the parent of the student. The
Rules for National Schools also provide, where the parents or
guardians so wish, for the withdrawal of pupils from religious
instruction.
138. Section 15 of the Education Act 1998 requires boards of
management of schools to uphold and be accountable to the
Patron for upholding the characteristic spirit of the school
including the moral, religious, social, educational and
spiritual values which inform the ethos of the school.
139. At primary level, the Department of Education and
Science recognises the rights of the different church
authorities to design curricula in religious education and to
supervise their teaching and implementation. This right is
enshrined in the Education Act 1998. Consequently, although
religious education is part of the Curriculum for Primary
Schools and schools are obliged to allocate 30 minutes per

day for religious instruction, the content of the religion


programme is determined by the Patron of the school.
140. The Revised Curriculum for Primary Schools espouses
the importance of tolerance towards the practice, culture
and life-style of a range of religious convictions and states
explicitly that the beliefs and sensibilities of every child are
to be respected.
141. In second level schools, a programme of religious
instruction approved by the Patron may be offered, or
alternatively, the school may use the curriculum in Religious
Education which has been designed as an examinable
subject by the National Council for Curriculum and
Assessment. The NCCA syllabuses are concerned with
understanding religion as a phenomenon in the world and
are designed to be studied by students of all religious faiths
and of none. At Junior Cycle, the NCCA syllabus in Religious
Education was introduced in September 2000 for first
examination in the Junior Certificate in 2003. At Senior Cycle,
a new NCCA syllabus in Religious Education at Higher and
Ordinary levels was introduced for first examination in 2005.
Culture
142. To assist schools to cater for different cultures and
diversity there are a number of resources available to
schools. All teachers in primary and post primary were
provided with a copy of the National Council for Curriculum
and Assessment's Guidelines on Intercultural Education.
There are two versions of the document. One for primary and
one for post-primary. This resource provides teachers with
guidelines and resources on how to address culture from
many aspects and across the curriculum. In December 2007
there was a Toolkit for Diversity in the Primary School
launched. This was done in collaboration by Integrate Ireland
Language and Training in Dublin and by the Southern
Education and Library Board in Armagh, Northern Ireland. It
again provides teachers in all 32 counties with opportunities

and resources to cater for the diverse cultural needs of the


students in their class and in their schools.
143. Children of minorities celebrate about their culture
through a range of intercultural events organised at a local
and national level which have been organised by members
of ethnic-led organisations, local government, partnerships
and non-governmental organisations. Funding streams have
been made available by a range of governmental bodies,
including the Office of the Minister for Integration, to support
the organisation, planning and delivery of these activities.
Dissemination of Information relating to the Covenant and
the Optional Protocol (Article 2)
Issue 22
144. The Government endeavours to make the text of all the
international human rights instruments to which it is a party
freely available. The text of all the main human rights
conventions ratified by Ireland and the national reports
submitted to the United Nations on the implementation of
these conventions are available on the Department of
Foreign Affairs website
(http://www.dfa.ie/uploads/documents/Political
%20Division/iccprfinalpdf.pdf). The Universal Declaration of
Human Rights has been printed in both national languages
and has been widely distributed.
145. The reports submitted by Ireland under the
International Covenant on Civil and Political Rights are
coordinated by a designated focal point, the Human Rights
Unit of the Department of Foreign Affairs.
146. In the process of drafting of Irelands human rights
reports, all Government Departments are fully involved.
147. The initial drafting process for all of Irelands human

rights reports is coordinated by an inter-departmental


committee.
148. The draft reports are circulated on a confidential basis
to NGOs and other interested bodies including trade unions,
academics, religious representatives and representatives of
minority communities. The Irish Human Rights Commission
and the Ombudsman for Childrens office is also invited to
consult on the reports. A full list of those organisations and
individual invited to consult on Irelands human rights
reports is listed in Appendix D.
149. The representatives are invited to submit comments in
writing and attend a consultation meeting on the report. This
provides an opportunity for NGOs to present or amplify their
written submissions. This consultation serves numerous
purposes. It is to ensure the report is an accurate reflection
of the current status of the relevant human rights
obligations; to pinpoint key concerns of the NGO sector and
to afford them a meaningful opportunity to present to
government officials their ideas on how Ireland could achieve
a fuller implementation of the relevant convention and to
explore the implementation of the convention in question
from an alternative perspective. It also provides an
opportunity to brief NGOs and other interested parties on the
reporting and examination process itself, so that they may
participate fully in the process.
150. Following this consultation process an annex to the
report is prepared reflecting concerns raised by NGOs and
the report is updated, where required, with information
requested by NGOs and other groups. The report is then
submitted to the Office of the High Commissioner for Human
Rights and published on the website of the Department of
Foreign Affairs (www.dfa.ie).
Annex A

Issue 1
High Court Decisions in which direct reference is made to the
Covenant

J. H. and Anor -v- Minister for Justice Equality and Law


Reform [2007] IEHC 277 27/07/2007

Moyosola v Refugee Applications Commissioner and Ors


[2005] IEHC 218
23/06/2005

Pasic v Minister for Justice Equality and Law Reform and


Anor [2005] IEHC 45 23/02/2005

*M (SO) v Refugee Applications Commissioner and


others [2005] IEHC 218

*Dongo v Refugee Applications Commissioner and


another [2004] IEHC 366

*Gritto and others v Minister for Justice, Equality and


Law Reform [2004] IEHC 119

*Muresan v Minister for Justice, Equality and Law


Reform and others [2003] IEHC 655_02

I v Minister for Justice, Equality and Law Reform and


Anor [2007] IEHC 165 26/09/2007
Annex B
Issue 3
Information on how the Ireland has addressed the
recommendations contained in the Committees previous
concluding observations.
Paragraph 29(a) of the previous Concluding Observations
1.
In paragraph 29(a) of the previous concluding
observations, the Committee recommended that Ireland
withdraw the remaining reservations to the Covenant.

2.

Information on this matter is provided under Issue 2.

Paragraph 29(b) of the previous Concluding Observations


3.
In paragraph 29(b) of the previous concluding
observations, the Committee recommended that Ireland
reform constitutional provisions requiring judges to make a
declaration with religious references (Article 18).
4.

Information on this matter is provided under Issue 19.

Paragraph 29(c) of the previous Concluding Observations


5.
In paragraph 29(c) of the previous concluding
observations, the Committee recommended that Ireland
provide for prompt review of detention on mental health
grounds, i.e. within a few days (Article 9).
6.
The Mental Health Act 2001 provides a modern
framework within which people who have a mental disorder
and require treatment or protection can be cared for and
treated. It puts in place mechanisms by which the
standards, care and treatment in mental health services can
be monitored, inspected and regulated.
7.
The Act provides for the establishment of Mental Health
Tribunals under the auspices of the Mental Health
Commission. A Mental Health Tribunal is an independent
legal entity and its function is to revoke or affirm admission
or renewal orders, thus ensuring the protection of rights of
patients.
8.
Each Tribunal comprises a legal member, a consultant
psychiatrist and a lay person, and they conduct a review of
each decision by a consultant psychiatrist to detain a patient
on an involuntary basis or to extend the duration of such
detention (the latter as a consequence of a renewal order at
3, 6 and 12 month periods). The review of a detention is
independent, automatic and must be completed within 21

days of the detention/extension order being signed. The


Tribunal arranges for an independent assessment of the
detained patient by a consultant psychiatrist; patients have
the right to attend the tribunal hearing and be represented
by a legal representative, who is appointed by the Mental
Health Commission.
Paragraph 29(d) of the previous Concluding Observations
9.
In paragraph 29(d) of the previous concluding
observations, the Committee recommended that Ireland
repeal or reform discriminatory aspects of legislation
requiring the registration of alien husbands of Irish women
citizens, which is not required of alien wives of Irish male
citizens (Articles 3 and 26).
10. In paragraph 119 of Irelands Third Periodic Report, it
was noted that under the Immigration Act 2004, this
situation no longer pertains.
Paragraph 29(e) of the previous Concluding Observations
11. In paragraph 29(e) of the previous concluding
observations, the Committee recommended that Ireland
ensure the full and equal enjoyment of Covenant rights by
persons with disabilities, without discrimination, in
accordance with Article 26.
Office for Disability and Mental Health
12. In January 2008, the Government announced the
establishment of the Office for Disability and Mental Health
to support the Minister for Disability and Mental Health in
exercising his responsibilities across four Government
Departments: Health and Children; Education and Science;
Enterprise, Trade and Employment; and Justice, Equality and
Law Reform.
13. The new Office brings together responsibility for a

range of different policy areas and State services which


directly impact on the lives of people with a disability and
people with mental health issues. The Office will aim to
bring about improvements in the manner in which services
respond to the needs of people with disabilities and mental
health issues.
14. Very substantial progress has been made in recent
years in the areas of disability and mental health, but much
remains to be done. In particular, there is a need to improve
co-ordination and communication across different
Government Departments and agencies in their delivery of
services to this client group. This will be the main focus for
the new Office in the coming months.
National Disability Strategy
15. The National Disability Strategy supports and reinforces
the equal participation in society of people with disabilities
and comprises five elements:

Disability Act 2005

Education for Persons with Special Educational Needs


Act 2004;

Sectoral Plans published in 2006 by six Government


Departments;

Citizens Information Act 2007

A Multi-Annual Investment Programme for disability


support services of 900m for the period 2006-2009.
Health Disability Sectoral Plan
16. The Health Disability Sectoral Plan sets out the actions
which the Department of Health and Children, the Health
Service Executive and 27 statutory bodies will take to meet
their obligations under the Disability Act 2005. It represents
a commitment at all levels of the health service to access
and equity of service for people with disabilities.

17. The development of the Health Disability Sectoral Plan


has provided an important opportunity to ensure that the
needs of people with disabilities are considered in all health
policy planning and service delivery processes.
18. The Health Sectoral Plan is the first step in a complex
process to establish a baseline for access to health services
and for service delivery.
Part 2 of the Disability Act 2005 Independent Assessment
of Need
19. Part 2 of the Disability Act 2005 provides people with
disabilities with an entitlement to:

An independent assessment of health and education


needs;

A statement of the services (Service Statement) which


it is proposed to provide;

Pursue a complaint through the Health Service


Executive (HSE) complaints process if necessary;

Make an appeal to the independent Disability Appeals


Officer.
20. Part 2 of the Disability Act 2005 commenced for
children aged under 5 years with effect from 1 June 2007.
This prioritisation reflects the importance of intervention
early in life, which can have a significant impact on the
disabling effects of a condition or impairment.
21. The independent assessment of need is initially
undertaken without regard to cost or capacity constraints.
This report will state the nature, if any, of the disability, the
health and educational requirements arising, and a
statement of the requisite services considered appropriate.
It must be stressed that this process is conducted without
regard to the cost of or capacity to provide any of the
services identified.

22. The next phase of the process involves the preparation


of a Service Statement particular to the individual, following
the independent assessment of need process. This is
prepared by a Liaison Officer (case manager). The
Statement details the services to be provided and a
timeframe for their delivery. The crucial difference here is
that this report must take cognisance of resource availability,
as well as eligibility considerations and the practicality of
providing service(s).
23. Part 2 of the Act will be commenced in respect of
children aged 5-18 in tandem with the implementation of the
Education for Persons with Special Educational Needs
(EPSEN) Act 2004. The Department of Education and
Science has informed the Department that it is envisaged
that all sections of the EPSEN Act will be implemented over a
five year timeframe that commenced on 1 October 2005.
The National Council for Special Education (NCSE) submitted
its Implementation Report to the Minister for Education and
Science in October 2006, which sets out its views and
recommendations on a plan for the implementation of the
EPSEN Act 2004.
24. Part 2 of the Disability Act will be extended to adults as
soon as possible but no later than 2011.
25. A Cross Sectoral team comprising of the Department of
Health and Children, Department of Education and Science,
the HSE and the NCSE, was established and meets on a
regular basis and continues to address issues arising in
relation to the implementation of both Acts.
26. The Office of the Disability Appeals Officer has been
established.
27. Significant work has taken place in the HSE including
the creation of Assessment Officer and Liaison Officer (case
managers) posts in each Local Health Office areas.

28. A system of complaints is also in place in the HSE to


deal with complaints under the Act.
29. At the end of March 2008, 1,836 applications for
assessment of need have been received and are being /
have been processed by the HSE.
Funding of Health Services for People with Disabilities
30. Multi-Annual Investment Programme 2006 2009: The
Government has prioritised investment in services for people
with disabilities in recent years. Over 2.5 billion is spent
annually by the health services on disability programmes
(residential, day care, respite, assessment and rehabilitation
services), mental health programmes, domiciliary care and
respite care grants and other allowances.
31. While the need to enhance further capacity is a
continuing challenge, it is important to acknowledge the very
significant existing level of expenditure on health services
for people with disabilities.
32. The National Disability Strategy provides for an
Investment Programme of 900m capital and revenue
funding for the period 2006 to 2009 to build capacity in
priority areas of support services for people with disabilities.
These include new residential, respite and day services and
new community-based mental health facilities. This
programme also provided for additional staff for each year of
the multi-annual investment programme. These staff will
build additional capacity in the system.
33. The multi-annual investment programme also provides
for additional funding to enhance education services for
people with a disability.
34. Additional funding for the health service in respect of
the National Disability Strategy Multi-Annual Investment
Programme was as follows

2006 75m
2007 75m
2008 50m

35. This funding has and will provide:

New residential places, new respite places and new day


place for people with an intellectual disability

New residential places and extra hours of personal


assistance/support for people with physical and sensory
disabilities.

Support the implementation of the Disability Act


36. It is also intended to transfer persons with intellectual
disability/autism from psychiatric hospitals and other
inappropriate placements.
Annex C
Issue 11
Alternative Sanctions to Detention:
1.
Fines
A majority of offences are punishable by a fine unless fixed
by law or unless there is a provision to the contrary.
Consideration of the offenders means and proportionality
regarding the gravity of the offence are factors in deciding
the amount of the fine.
2.
Dismissal and Conditional Discharge
Under the amended Probation of Offenders Act 1907, a court
may make two types of order. Firstly, an offender may be
dismissed where he/she is charged and the charge is proved,
but the nature of the offence or extenuating circumstances
deem a dismissal to be the most appropriate response. The

second type of order is to discharge the offender


conditionally. An offender will enter into a recognisance to
be of good behaviour for a period not exceeding three years.
3.
Compensation Order
Where a charge is dismissed or conditionally discharged, a
court may order an offender to pay damages for injury,
compensation for loss and costs of the proceedings in
acknowledgement of the harm caused by the offence.
4.
Probation Order
When a recognisance contains conditions relating to the
supervision of an offender, that order is referred to as a
probation order. An offender may be made the subject of a
probation order under the Probation of Offenders Act 1907
for a period of up to three years. The order may contain any
conditions which the court considers necessary to prevent
the repetition of the same offence or the commission of
other offences.
Deferment of Sentence/Adjourned Supervision: Deferred
sentencing/adjourned supervision is a common judicial
practice. During the deferment the offender may be required
to remain under the supervision of the Probation Service. A
court may decide to defer sentencing for a period of time
usually not exceeding one year to allow the offender address
offending related issues.
5.
Supervision Order
Persons convicted of certain offences under the Misuse of
Drugs Act 1977 and 1984 may enter a recognisance to be
supervised, undergo medical or other treatment or attend a
course of education, instruction or training. The order is for
a specified period, typically one year. The Drug Treatment
Court, which originally operated on a pilot basis in the North
inner city of Dublin, has been placed on a permanent footing
and extended to the Dublin 7 area. The Court uses a multidisciplinary approach and involves a range of Government
Departments and agencies charged with dealing with various

aspects of the problem of drug misuse. There are plans to


extend the concept to the rest of the Dublin Metropolitan
District Court area on a phased basis and discussions with
other agencies are ongoing in this regard.
6.
Community Service Order
The Community Service Order (CSO) was introduced under
the Criminal Justice (Community Service) Act 1983. It is
intended as an alternative to custody for offenders aged 16
years and over, where in the opinion of the court the offence
merits a custodial sentence. An offender is required to
perform unpaid work for a specified number of hours the
minimum is 40 hours and the maximum 240 hours.
7.
Suspended Sentence
Under the Criminal Justice Act, 2006 (Section 99), a court
may suspend wholly or partly a sentence of imprisonment
imposed, subject to the person entering into a recognisance.
As with the probation order, the court may impose conditions
as it considers appropriate. Where the sentence is part
suspended, the person may be placed under the supervision
of the Probation Service for the purpose of rehabilitation and
protection of the public, or to undergo a course of treatment
or programme approved by the court.
8.
Sex Offender Supervision
Under Part 5 of the Sex Offenders Act, 2001, the court may,
on sentencing a sex offender, include in that sentence a
period of post release supervision by the Probation Service.
Again, the court may impose conditions for securing that
supervision.

HE WEARS A DIFFERENT FACE FOR ALL OCASIONS ALSO SAYS


DIFFERENT POEMS. WHAT A SPOOFER HE IS. HE DOESENT SPEAK OR
REPRESENT ME FOR ANYTHING AT ALL EVEN ALL THOSE ANTI
COMMUNITY BILLS HE SIGNED.

Higgins was a hobbit traitor among them.


Hobbit is Not Speaking on Behalf of me i Don't like This Evil Columbia
Dictator He Was A Dictator, Evil, and Corrupt so Higgins does not Speak
On Behalf of The Irish People thats his Words not Yours or Mine
Yes but what do you think about what he says about Castro and how it
totally contradicts what the media are saying?

http://www.thejournal.ie/water-commission-report-poll3107949-Nov2016/

Delegated Legislation and Article 15.2. ...


Separation of Powers in the Irish
Constitution, ... Section of Act found
unconstitutional under Article 15.2
Delegated Legislation and Article 15.2
Posted by bollinsl on 14 June 2011
Paper submitted to TCD
The impact of Article 15.2 on the power of a Minister to make
delegated legislation.
Leo Bollins
14 June 2011
CONTENTS
Introduction.. 3
Administrative power or legislative power?.. 5
The principles and policies test. 5
Comments on Article 15.2.. 11
Summary.. 13
Appendix 1: References. 14
Appendix 2: List of Cases. 15
Exhibit A Check List. 17

Exhibit B: Extracts from the Constitution of Ireland.. 19


Exhibit C: Extracts from the Provisional Collection of Taxes
Act 1927 20
Exhibit D: Extract from the European Communities
Amendment Acts 1972 2009 22
Exhibit E: Extract from the Programme for Government
2011.. 24
Introduction
Article 6.1 of the 1937 Constitution establishes the
separation of powers principle:
All powers of government: legislative, executive, and
judicial, derive from the people
Article 15.2 states that only the Oireachtas can make laws
for the State:
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.
However, in practical terms, the legislature would not have
the time to legislate for every detail. The courts have
accepted that it may be necessary to delegate certain
limited legislative functions. [Kelly 2003, p 235]
The Cityview test states that the parent act must contain
principles and policies while the delegated legislation may
only fill in the details. However, the courts have taken a
pragmatic approach in practice by not being too stringent
when applying the test.
Nevertheless, the powers of a Minister to make delegated

legislation are severely limited by Article 15.2 as interpreted


by the courts.
The Constitution Review Group is of the opinion that the
Article makes it difficult to fill in gaps left in an Act or to deal
with specific details which were not anticipated. [CRG p 39]
There are provisions for parliamentary scrutiny and
annulment of statutory instruments implementing EU law
(see exhibit D).
A suggested checklist of questions to be asked when
considering if a delegated legislation proposal is valid is
included in Exhibit A, and the major issues are discussed
below.
Definition of delegated legislation
Delegated legislation may be defined as legislation made by
a body authorised to do so by the Oireachtas, in this case by
the executive (members of the Government (Cabinet
Ministers)).
The Statutory Instruments Act 1947 includes this definition:
the expression statutory instrument means an order,
regulation, rule, scheme or bye-law made in exercise of a
power conferred by statute.
Another form of delegated legislation is the set of financial
resolutions proposed by the Minister for Finance following his
Budget speech and passed by the Dil hours later. These
amendments to Acts of the Oireachtas in relation to taxation
are effective for four months unless they are confirmed by
an Act of the Oireachtas.
See Exhibit C: Extracts from the Provisional Collection of
Taxes Act 1927.

Administrative power or legislative power?


The first question that arises is whether the power in
question is legislative power delegated or administrative
power assigned.
The former is questionable under Article 15.2, the latter is
permissible constitutionally as the Constitution does not
assign administrative power to the Oireachtas.
In Re Article 26 and the Health Amendment (No. 2) Bill 2004
the Supreme Court held that power given to the CEO of a
Health Board to remit nursing home charges was not a
delegation of legislative power but merely an administrative
function.
The court did not precisely define the difference between
legislative and administrative powers, but Doyle [Doyle 2008
p313 [11-08]] said that
the distinction surely turns on the power to lay down
generally binding rules.
In this case the CEOs discretion covered certain cases only,
and as an administrative power it would not fall foul of
Article 15.2.
The principles and policies test
The idea is that principles and policies should be dealt with
by primary legislation of the Oireachtas while details may be
handled by secondary legislation.
This test is easy to state but difficult to apply.
In Cityview Press v An Comhairle Oilina [1980] IR 381 the
Supreme Court had to consider whether levies imposed on a
designated industry were an unauthorised delegation of
parliamentary power or merely giving effect to principles and

policies contained in the statute itself, that is the law is


contained in the statute and the Minister or subordinate
body is only filling in the details.
The court found that there was no unauthorised delegation
of authority because:
The Act contains clear declarations of policies and aims and
establishes machinery for the carrying out of those policies
and the achievement of those aims
This is doing no more than adding the final detail bringing
into operation the general law which is laid down by the
section
In addition the Oireachtas has taken care to ensure that a
levy order made under this section will continue to be under
the supervision of either house of the legislature itself. A
levy order may be annulled by either House of the
legislature. [OHiggins, CJ] [Doyle 2008, p314]
However, it is suggested that this test is not applied with
stringent rigour. David Gwynn Morgan says [Morgan 1997, p
239], writing about the judgment,
And yet there is nothing here, or in the Act itself which tells
us anything about the principles to be used in fixing the
amount of the levy
Morgan goes on to quote Professor Casey (Casey,
Constitutional Law inIreland, p181):
If provisions of such vagueness can pass muster it is not
easy to imagine what would not.
McDaid v Sheehy [1991] was a case where the High Court
did find provisions of an act (Imposition of Duties Act 1957)
unconstitutional having applied the principles and policies
test. However, this was overturned on appeal on the grounds

that the delegated legislation was granted retrospective


validity because it was referenced in the Finance Act 1976,
and the principles and policies text should not apply. [Doyle
2008, p314, [11-13].
The Laurentiu v Minister for Justice [1999] case was the only
case where legislation (s 5(1)(e) of the Aliens Act 1935) was
struck down because it failed the principles and policies test.
Keane J (with whom Hamilton CJ concurred) found that
The Oireachtas of Saorstt ireann did not legislate for
deportation. It merely permitted the Minister for Justice to
legislate for deportation.
Keane J also found that the parliamentary control procedure
(annulment resolution of either House) could save an
enactment which was otherwise clearly in breach of Article
15.2. [Doyle 2008, p 317, [11-17]]
In the High Court Leontjawa v DPP and Chang [2004] Finlay
Geoghean J held that the Aliens Order 1946 made under S
5(1)(h) of the Aliens Act 1935 fell foul of the principles and
policies test for much the same reasons as stated by Keane J
in Laurentiu.
However on appeal this was overturned by the Supreme
Court on the grounds that the policy enunciated in 5(1)(h)
was clear.
Thus it seems that the courts apply the principles and
policies test in a restrictive way,
and draw the false inference that if the primary legislation
deals with some matters of policies and principles then all
the primary legislation deals with all matters of principle and
policy. [Doyle 2008, p 318, [11-23]]
Henry VIII Clauses: Non delegation & Ultra Vires doctrines

The Oireachtas cannot delegate power to amend legislation.


In East Donegal Co-operative Ltd v Attorney General [1970]
the Supreme Court following on from the presumption that
all post 1937 acts are constitutional, held that where two or
more interpretations of a statutory provision are open, and
where only one is constitutional, the court ought to adopt the
constitutional reading. This will limit the scope of the
provision and increase the likelihood that the public authority
will have acted ultra vires. [Doyle 2008, p321]
In Cooke v Walsh [1984] the Supreme Court found that
regulations made by the Minister for Health providing that
health services would not be available to persons injured in a
car crash unless they can establish that they are not entitled
to compensation or damages from a third person were ultra
vires the Health Act 1970, as the legislative could not have
delegated such power. [Doyle 2008, p322]
OHiggins CJ reasoned that
This is, in reality, an attempt to amend the two sections by
ministerial regulation instead if by appropriate legislation. In
my view the National Parliament could not and did not intend
to give such a power to the Minister for Health when it
enacted section 72 of the Health Act 1970.
The effect of this case and Harvey v Minister for Social
Welfare [1990] is that the Supreme Court has outlawed the
so called Henry VIII clauses. That is a Minister may not
amend primary legislation by using delegated legislation,
and may not act inconsistent with primary legislation. [Doyle
2008, p 324, [11-34 11-36]]
Effect of EU Membership
Section 2 of the European Communities Act 1972 (see
Exhibit D) grants legal status to Community law
withinIreland, and is protected by Article 29.4.

Section 3 of the European Communities Act 1972 enables a


Minister to make regulations to implement Community law.
Section 3 is clearly a Henry VIII clause as it allows a Minister
of State to amend primary legislation by regulation, and
would be unconstitutional except for Article 29.4.
This was decided by the Supreme Court in Meagher v
Minister for Agriculture [1994] where the applicant had been
prosecuted under regulations that amended primary
legislation. [Doyle 2008, p393]
Finlay CJ delivering the judgement of the court said
The court is accordingly satisfied that the power to make
regulations in the form in which it is contained in section 3(2)
of the Act is necessitated by the obligations of the State of
the Communities and now of theUnionand is therefore virtue
of Article 29.4 subsections 3, 4 and 5 immune from
constitutional challenge.
While the constitutionality of S 3 of the Act was upheld, it
does not mean that this is appropriate in all cases.
In the context of the regulations at issue Denham J
formulated her approach in terms of the Cityview case:
Where there is in fact no choice on a policy or a principle
the matter is appropriate for delegated legislation. If the
directive or the Minister envisaged a choice then it would
require legislation by the Oireachtas
In Maher v Minister for Agriculture [2001] the Supreme Court
found that even though there was some choice open to the
Minister, the principles and policies were to be found in
European Law and consequently the making of the
regulation was not an impermissible use of the Oireachtas
legislative power. [Doyle 2008, p396]

In Browne v Attorney General [2003] the Supreme Court


found that S 3 of the European Communities Act 1972 could
not be used to make regulations creating an indictable
offence. However, Browne was reversed by the European
Communities (Amendment) Act 1997 and indictable offences
may be created now. [Doyle 2008, p399]
Comments on Article 15.2
The Constitution Review Group (CRG) felt that Article 15.2.1
as interpreted in the Cityview Press Ltd v AnCO [1980] case
severely restricts the power of Ministers to make statutory
instruments or subordinate legislation, by subjecting the
delegated legislation to the principles and policies test.
Subsequent cases have taken both a broad and narrow
interpretation of this test. [CRG 1996, p39]
The CRG felt that
the effect of the test was to make it difficult to make
secondary legislation to fill gaps left by a Act of the
Oireachtas or to deal with specific details which may not
have been anticipated when the Act was passed for
example with matters such as rapidly developing technology
or matters of detail affecting different areas in different
ways.
The CRG spoke of the attractions of subordinate legislation
in view of the complex, intricate and ever changing
situations which confront both the legislature and the
executive in the modern state.
The CRG noted that
The court referred to the practice of making secondary
legislation subject to annulment by either House of
Parliament but while this was a measure of control the two

Houses of the Oireachtas are not the Oireachtas as such.


The CRG said that consideration should be given to
amending Article 15.2.1 to extend the limits of what the
Government or a Minister (and no others) may legislate
using a statutory instrument beyond the Ctyview test, to
include matters of substance in the parent Act. However,
safeguards should be included to maintain the supremacy of
the Oireachtas, such as a requirement that a positive
resolution of both Houses of the Oireachtas must be passed
before the secondary legislation comes into force. There was
some concern that such a procedure by bypassing the
normal legislative process would undermine the power of the
President to refer a bill to the Supreme Court under Article
26 of the Constitution.
Article 15.2.2 provides for the Constitution to accommodate
an agreedIreland. This subsection could also be used to
delegate certain limited rule or law making powers to local
authorities. [CRG 1008, p42]

Summary
The power of a Minister to make delegated legislation is
limited by Article 15.2.
Delegated legislation must pass the principles and policies
(Cityview) test.
However, the courts have allowed certain flexibility in the
application of the Cityview test, preferring to accept the
presumption of constitutionality of the parent Act (if post
1937) and reply on the ultra vires doctrine.
Henry VIII clauses are invalid, except where necessitated by
EU membership.

Appendix 1: References
[Byrne 2009] Byrne and McCutcheon on the Irish Legal
System,BloomsburyProfessional, 2009
[CRG 1996] Constitution Review Group, Report of the
Constitution Review Group, 1997
[Donovan 2010] Donovan, Dorothy, The Irish Legal System,
Round Hall, 2010
[Doyle 2008] Doyle,Oran, Constitutional Law: Text, Cases and
Materials, Clarus Press Limited, 2008
[Kelly 2003], Kelly J.M., The Irish Constitution, Fourth Edition,
Tottel Publishing Ltd., 2006
[Morgan 1997], Morgan, David Gwynn, Separation of Powers
in the Irish Constitution, Round Hall Sweet and Maxwell,
1997
Appendix 2: List of Cases
Browne v Attorney General [2003]
The Supreme Court found that s 3 of the European
Communities Act 1972 could not be used to make
regulations creating an indictable offence.
Cityview Press v An Comhairle Oilina [1980] IR 381
Supreme Court the test as to whether delegated power is
constitutional or not is whether the power is no more than
merely giving effect to principles and policies which are
contained in the parent Act
[Donovan 2010, p26]
Also parliamentary scrutiny

[Doyle 2008, p313-314]


Laurentiu v Minister for Justice [1999]
This is the only case where legislation has actually struck
down as a breach of Article 15.2.1.
Leontjawa v DPP and Chang [2004]
Finlay Geoghegan J held that s 5(1)(h) fell foul of the
principles and policies test for much the same reasons as
stated by Keane J in Laurentiu.
McDaid v Sheehy [1991]
Section of Act found unconstitutional under Article 15.2 and
principles and policies test but overturned by the Supreme
Court because retrospective validity by reference granted to
section of Act.
Meagher v Minister for Agriculture [1994]
Supreme Court held that it was constitutional for a Minister
to amend primary legislation by regulation where it was
necessitated by membership of the European Community,
nowUnion.
Re Article 26 and the Health Amendment (No. 2) Bill 2004
The Supreme Court held that power given to the CEO of a
Health Board to remit nursing home charges was not a
delegation of legislative power but merely an administrative
function [Doyle 2008, P 313, [11-07 11-08]]
Exhibit A Check List
Check list to determine if a proposal (delegated legislation) is
valid in terms of Article 15.2

The following series of questions could be asked in relation


to delegated legislation to determine if it falls foul of Article
15.2. The questions need not necessarily be asked in this
order.
1)
Is the proposal delegated legislative power or assigned
administrative power?
If administrative power it is presumed to be valid (at least
under this article 15.2)
If it is delegated legislative power then further consideration
is necessary go to 2
2)
Is the proposal necessitated by EU membership with
little discretion given to the State?
Yes
i.
Apply principles
and policies test (using EU law to source principles and
policies) if yes
Use European Communities Act 1972 2007 to make SI
Or use other relevant Act to make SI
ii.
If no go to 3
No go to 3
3)
Does the proposal satisfy the principles and policies
(Cityview) test?
Yes go to 4
No invalid (only if there are no principles or policies in the
parent Act)
4)
Does the proposal use a Henry VIII clause in the parent
Act? (Power to amend a law)
Yes invalid
No go to 5
5)
Is the proposal ultra vires the parent act? (if the act is
post 1937 it is presumed constitutional, and if more than one

reading of the Act is possible use the constitutional reading)


Yes invalid
No go to 6
6)
Is the relevant section in the parent Act
unconstitutional?
Yes invalid
No go to 7
7)
Is the proposal male fides?
Yes invalid
No go to 8
8)
Is the proposal coming from a subordinate legislature in
accordance with law? (Article 15.1.2 but no cases or statute
law so far)
Yes valid
No go to 9
9)
Is the proposal (or the effect if implemented)
unconstitutional?
Yes invalid
No valid
Exhibit B: Extracts from the Constitution of Ireland
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.
Article 15.2.1
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.

Article 15.2.2
Provision may be made however, by law for the creation r
recognition of subordinate legislatures and for the powers
and functions of these legislatures.
Exhibit C: Extracts from the Provisional Collection of Taxes
Act 1927
Resolutions of the Dil relating to tax and amending Acts of
the Oireachtas to have statutory effect for up to four months.
Extract from the Act follows.
Certain resolutions to have statutory effect.
2.Whenever a resolution (in this Act referred to as a
resolution under this Act) is passed by the Committee on
Finance resolving
(a) that a new tax specified in the resolution be imposed, or
(b) that a specified permanent tax in force immediately
before the end of the previous financial year be increased,
reduced, or otherwise varied, or be abolished, or
(c) that a specified temporary tax in force immediately
before the end of the previous financial year be renewed
(whether at the same or a different rate and whether with or
without modification) as from the date of its normal
expiration or from an earlier date or be discontinued on a
date prior to the date of its normal expiration,
and the resolution contains a declaration that it is
expedient in the public interest that the resolution should
have statutory effect under the provisions of this Act, the
resolution shall, subject to the provisions of this Act, have
statutory effect as if contained in an Act of the Oireachtas.

Duration of statutory effect of resolution.


4.(1) A resolution under this Act shall cease to have
statutory effect in or upon the happening of whichever of the
following events first occurs, that is to say:
(a) if the resolution is not agreed to, with or without
modification, by Dil Eireann within the next ten days on
which Dil Eireann sits after the resolution is passed by the
Committee on Finance;
(b) if Dil Eireann disagrees with the resolution;
(c) if a Bill containing provisions to the same effect (with or
without modification) as the resolution is not read a second
time by Dil Eireann within the next twenty days on which
Dil Eireann sits after the resolution is agreed to by Dil
Eireann;
(d) if those provisions of the said Bill are rejected by Dil
Eireann during the passage of the Bill through the
Oireachtas;
(e) the coming into operation of an Act of the Oireachtas
containing provisions to the same effect (with or without
modification) as the resolution;
(f) the dissolution of Dil Eireann before any such Act as
aforesaid is passed by the Oireachtas;
(g) the expiration of a period of four months from the date
on which the resolution is expressed to take effect or, where
no such date is expressed, from the passing of the resolution
by the Committee on Finance.
(2) When a resolution under this Act is agreed to by Dil
ireann with modifications, the resolution shall have
statutory effect under this Act with and subject to such

modifications.
Exhibit D: Extract from the European Communities
Amendment Acts 1972 2009
Annulment procedures are included.
General provision.
(1)

2.

From the 1st day of January, 1973, the treaties governing the
European Communities and the existing and future acts
adopted by the institutions of those Communities and by
bodies competent under the said treaties shall be binding on
the State and shall be part of the domestic law thereof under
the conditions laid down in those treaties.
(2)
Without prejudice to subsection (1) of this section, from the
coming into force of the EEA Agreement, the provisions of
that Agreement and the acts to be adopted by institutions
established by that Agreement which, pursuant to the
treaties governing the European Communities, will be
binding on the State and an integral part of the legal order of
those Communities, shall have the force of law in the State
on the conditions laid down in those treaties and in that
Agreement.
Power to make regulations.
3.
(1)
A Minister of State may make regulations for enabling
section 2 of this Act to have full effect.
(2)
Regulations under this section may contain such incidental,
supplementary and consequential provisions as appear to
the Minister making the regulations to be necessary for the
purposes of the regulations (including provisions repealing,

amending or applying, with or without modification, other


law, exclusive of this Act).
(3)
Regulations under this section shall not create an indictable
offence.
(3)
Regulations under this section may

(a)
make provision for offences under the regulations to be
prosecuted on indictment, where the Minister of the
Government making the regulations considers it necessary
for the purpose of giving full effect to

(i)
a provision of the treaties governing the European
Communities, or

(ii)
an act, or provision of an act, adopted by an institution of the
European Communities or any other body competent under
those treaties,

and

(b)
make such provision as that Minister of the Government
considers necessary for the purpose of ensuring that
penalties in respect of an offence prosecuted in that manner
are effective and proportionate, and have a deterrent effect,
having regard to the acts or omissions of which the offence
consists, provided that the maximum fine (if any) shall not
be greater than 500,000 and the maximum term of
imprisonment (if any) shall not be greater than 3 years.
(4)
Regulations under this section may be made before the 1st
day of January, 1973, but regulations so made shall not
come into operation before that day.
Annulment of an SI which applied EU law and creates an
indictable offence
3.A Every regulation to which subsection (3) (inserted
by section 2(a) of the European Communities Act 2007) of
section 3 of this Act applies shall be laid before each House
of the Oireachtas as soon as may be after it is made and, if a
resolution annulling the regulation is passed by either such
House withinthe next 21 days on which that House sits after
the regulation is laid before it, the regulation shall be
annulled accordingly but without prejudice to the validity of
anything previously done thereunder.
Annulment of and SI which applied EU law
4.
(1)

(a)
Regulations under this Act shall have statutory effect

(b)
If the Joint Committee on the Secondary Legislation of the
European Communities Joint Committee on Foreign Affairs
Joint Committee on European Affairs (1995 amendment)
recommends to the Houses of the Oireachtas that any
regulations under this Act be annulled and a resolution
annulling the regulations is passed by both such Houses
within one year after the regulations are made, the
regulations shall be annulled accordingly and shall cease to
have statutory effect, but without prejudice to the validity of
anything previously done thereunder.
Exhibit E: Extract from the Programme for Government 2011
http://www.finegael.ie/upload/ProgrammeforGovernmentFinal
.pdf
Transposing EU Legislative Measures
The situation can no longer be tolerated where Irish Ministers
enact EU legislation by statutory instrument. The checks and
balances of parliamentary democracy are by-passed. The
parliamentary treatment accorded home-produced draft
legislation must be extended to draft legislation initiated
within the EU institutions.
The Regulatory Impact Assessments prepared for Ministers
on all EU Directives and significant Regulations will be
forwarded automatically to the relevant sectoral Oireachtas
Committees. These Committees should advise the Minister
and the Joint Committee on European Affairs as to whether
the transposition should take place by Statutory Instrument

or by primary legislation. Where primary legislation is


recommended the full Oireachtas plenary process should be
followed.
https://eparl.wordpress.com/2011/06/14/delegatedlegislation-and-article-15-2/

Nick Keogh. They should be giving you a bonus for


your revelations rather than the hammering. The
Garda need more troopers like you.
You won't have read about this in the mainstream
media but garda whistleblower Nick Keogh
(pictured) recently won a water safety award for
saving the life of a woman who was drowning in the
River Shannon. Nick has been gravely punished by
garda management because of his revelations that
certain officers are colluding with heroin dealers.

He has been on extended stress leave since. Please


join me in congratulating Nick on winning his
award. Our broken police force needs courageous,
decent and honest officers like him. It is a scandal
that he has been pushed out of his duties for
exposing corruption and wrongdoing.
You are so brave in saving a life and standing up for
what you believe is wrong. Hope all works out for
you
Yes we are hitting them where it hurts. You see the
guards attempt to embarrass us by dragging us
through the courts on simple childish charges, and
the corrupt judges then make us into right ould
criminals, so between the guards and the district
court judges they make us look bad in our
communities, and the local papers aid and abet
them with their scandalous one sided reporting, so
now we are taking the guards to court so people will
now be whispering about the guards being in court
on criminal charges not childish ones. No respect
anymore for the criminal guards, we are on the
march, we will force the guards to do the job they
signed up to or they will be harassed and
intimidated out of their corrupt cushy little
numbers. Yes they over stepped themselves, but we
will fight fire with fire. Now Wayne Nash of Athlone
has served four guards with summonses one of who
is a superintendent namely Pat Murray, he stands
accused of assault and theft, nice one for a
superintendent, so does superintendent Pat Murray
lead by example, well it looks like that, because
Wayne has summonses for at least two more guards
in Athlone. And then you had the drug dealing
guards, and the revenue avoiding car dealing guards

i Athlone, yes i would say Pat Murray did a real good


job, he has earned an assistant garda commissioner
position but will have do with having to resign
instead. Oh yes old saying monkey see monkey do.
And then we have Colm Grenham and Joe Doocey
jasus where they will stop no one knows. The guards
and the district court judges will not be having a
very pleasant Xmas, they will be having sleepless
nights worrying who's home the demonstrations
will hit first, Oh yes 2017 is going to be the year of
protesting outside the homes of the the corrupt, yes
no warning in advance, so no high court injunctions
to contend with, we will pop up anywhere anytime,
let their children, their neighbours and wives know
the type of corrupt treacherous bastards that these
guys are, And sure if nothing else we can enjoy
ourselves on our days out.
I have issued four summonses on four members of
athlone garda the four garda members are to appear
at the sitting of athlone district court on Wednesday
the 14 of December to answer the charges garda
Darren Murphy did assault Wayne Nash contrary to
section 2 of the non fatal offences against the person
act 1997 evidence cctv and witness. Garda nohilly
and garda dempsey did without lawfully authority
or reasonable excuse willfully prevented and
interrupted my free movement and passage invaded
my personal privacy in a public place harassment
and false imprisonment at athlone town council
which is an offence contrary to section 10 and 15 of
the non fatal offences against the person act 1997
and pat Murray did on the 25 Feb of this year
outside athlone town council a public place assault
Wayne Nash contrary to section 2 0f the non fatal

offences against the person act 1997 and theft of my


mobile fone which is an offence contrary to section
4 of the theft and fraud offences act 2001 evidence
cctv and no pat my fone is not a firearm or a weapon
this is what pat Murray told gsoc pat u should have
gone to specs avers the camera never lies so there u
go folks support would be appreciated on the day if
u can I'm not here to run down or discredit any
member of an garda but I was wronged by these so
called garda and some body needs to be held
accountable and that member's of an garda are not
above the law if they break the law they should be
held to account and not forgetting about garda
Keane and garda teehan who did give a false
testimony against me in athlone court on the 24
October in order to gain an unlawful criminal
conviction offence interfering with the
administration of justice and attempting to pervert
the course of justice your summonses willSoon be in
the post

Eoin Dubsky v The Government of Ireland, The


Minister for ...
Article 15 establishes the National Parliament ... the
relevant national judicial powers stated that ... allowed
Ireland to commit an unconstitutional act,

papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2685243_code...
Third List of Amendments / Seanad Report Stage / Planning
and Development (Housing) and Residential Tenancies Bill
2016 Senators Alice-Marie Higgins, Colette Kelleher, Lynn
Ruane
http://www.oireachtas.ie/documents/amendments/2016/b921
6s-sr3.pdf

Fourth List of Amendments / Dil Committee Stage / Courts


Bill 2016 Deputies Richard Boyd Barrett, Gino Kenny, Brd
Smith
http://www.oireachtas.ie/documents/amendments/2016/b861
6d-dsc4.pdf
A Guide to Disability Law and Policy in Ireland Inclusion ...
entitlements/downloads/children_with_disabilities.pdf ...
Service would have legal powers
http://www.inclusionireland.ie/sites/default/files/documents/i
nformation_pack-final.pdf

Its hard to believe that this can happen in Ireland

Itis a bloody disgrace;'(my brother is helping a man


he works with do shoe boxes4 the homeless again
this yr4 any1 interested?you can just do your
own+give2 1r2 even all you need is a shoe box+put
essentianls in hat scarf gloves socks jocks toothpaste
brush plasters something nice(chocolate sweets
surprise)+makesure u put an xmas card+write a
little something too COULD BE T ONLY1 they
get....its like that thing smile@some1 2day some1 u
think might need it costs nothing but CAN mean the
world...its sooo sad what we are still living
in+putting up with going into2017;-(...sadtimes Eire
Declare this the desaster it so clearly is enda kenny if you
have any humanity left shame on you. ......
I would tell you and anyone else that disbelieve what
I say is research the 1937 constitution and then you
will get a shock of what you vote for in this country
don't answer me back until you do that remember
facts don't change mind's people do
Should not be happening

https://www.facebook.com/photo.php?
fbid=10153831493632504&set=a.10150
870432192504.384370.600887503&typ
e=3&theater

NOTES ON JUDGE
HARDING-CLARKS
REPORT ON THE
SYMPHYSIOTOMY

PAYMENT SCHEME.
November 24, 2016

Judge Maureen Harding-Clarks report on the muchcriticised Symphysiotomy Payment Scheme was
published two days ago. It is 275 pages long 133 of
commentary from the judge, 142 of extracts from medical
literature and hospital records. Judge Harding-Clark was
in an important position. She assessed applications from
almost 600 women who believed that they had been
subject to symphysiotomy. She oversaw searches of
hospital records, and medical tests designed to verify
their claims, and she allocated redress payments
accordingly; 50,000 euro to those who could show they
had had a symphysiotomy, 100,000 euro to those who
could link that symphysiotomy to ongoing health
consequences, and so on. Her report does more than
describe the functioning of that role. It situates the
scheme she oversaw in the context of an extensive
defence of the uniquely Irish practice of non-emergency
symphysiotomy. It is not the independent report
survivors of symphysiotomy are entitled to under human
rights law. The media have read it as diminishing SOSs
claim that the non-emergency substitution of
symphysiotomy for Caesarean section without consent,
as practiced in Ireland, violated many womens human
rights. However, this coverage has been insufficiently
critical of this report. Here are just some of the reports
problematic features:
Lifelong Injury: The judge repeatedly stresses that she

did not find that symphysiotomy as a matter of near


certainty created lifelong suffering. Near certainty, is not,
of course, the ordinary civil standard applied to causation
in personal injuries. The report does not show that
symphysiotomy was a benign operation. Over 35% of
successful applicants to the scheme were able to
demonstrate that they suffered significant disability
which, on the balance of probabilities were caused by a
symphysiotomy, and which had lasted more than three
years. The judge emphasises that these were not the
kinds of injuries (difficulty walking, incontinence) which
were typically associated with symphysiotomy in the
media; nevertheless, the disabilities listed in her report
are distressing and significant. While the judge stresses
that she was generous in helping women over the line,
all of these women were able to prove their injury either
with original medical records (by no means easy to get
after decades), or by medical examination conducted
under the direction of the scheme. The remaining 65%
were able to satisfy the judge that they had undergone
symphysiotomy, and all of them will have suffered
significant pain, and perhaps disabilities which lasted less
than three years.
In any event, the judges focus on lifelong disability
diminishes the experience of the operation itself. Indeed,
it is striking that the report only discusses the
performance of a symphysiotomy in the clinical language
of scalpels and sinews. Womens first person testimony of
the operation, by contrast, emphasises fear, pain far

beyond the normal expectations of labour, distress and


powerlessness. Although the majority of the 55 applicants
who had symphysiotomies before labour began did not
suffer significant disability, all of them laboured through a
damaged pubic joint. Prevalence of life-long injury is not
the only measure of the harm done by symphysiotomy.
Unfounded Claims and Difficult Activists. Much
has been made of the judges finding that 185 applicants
to the scheme could not make out their claims. The
report devotes a chapter to these women. It also spends
considerable time on applicants who, whether or not they
succeeded in proving symphysiotomy, could not satisfy
the scheme that they had suffered significant disability Of
course, we dont as yet know who these women were or
how they would describe their experience of the scheme.
We should not forget that 399 women received awards,
and that many women died before the scheme came into
operation. That a large number of claims failed should
not deter us from examining whether successful
applicants have been properly treated, by the scheme or
by the state. However, there are also serious
shortcomings in how the report presents the issue of
unsuccessful claims.
First, in some cases, the judges perception that claims
were inaccurate affected the schemes procedure. For
example, the judge finds evidence of a lack of candour by
women, or of inaccurate diagnoses by doctors, in the
recent medical reports of radiographers and GPs
furnished to the scheme and explains that this problem

was so significant that it justified her insistence on


preferring contemporaneous records of symptoms to
more recent ones. To the same effect, the judge suggests
that solicitors or campaigners assisted women to prepare
statements to the scheme according to templates which
made repeated use of similar lurid or harrowing motifs
and adjusted womens symptoms to fit media reports.
She contrasts these applications with those which women
prepared personally. However, while the judge provides
anecdotes, she does not number the problematic
complaints, rank them in terms of seriousness, or give a
sense of how widespread these issues were.
Second, the language the judge uses to describe
unsuccessful applicants is entirely inappropriate in a
report of this kind. At worst they are chastised for buying
into conspiracy theories, for unreasonable reactions, for
their anger and disappointment. At best, they are
patronised as suggestive personalities amenable to
emotional contagion and subject to acquired group
memory developed through involvement in campaigning
organisations; or elderly women sent into turmoil, not by
their experience of symphysiotomy or by the
governments attitude to it, but by irresponsible media
reports. The judge says:
it is very probable that the combination of a
traumatic birth experience and exposure to other
womens stories has created a self convincing
confabulation of personal history. Another inference
is that the possibility of financial payment has
influenced suggestible women and their family

members into self- serving adoption and embracing


of the experiences described by others or in the
media and created psychosomatic conditions.
The tone and length of this discussion sits uneasily with
the judges insistence that a compassionate and
generous approach was taken to assessing claims which
suffered from these perceived flaws. Most disturbingly,
the report alleges, without explanation, that several
prominent campaigners for justice for women subjected
to symphysiotomy who have been active in representing
themselves as victims to the media, as well as several of
the 28 women still pursuing personal injuries litigation in
respect of their symphysiotomies, were found not to have
undergone the operation at all. The most wellknown campaigning organisation; SOS, denies that any of
its prominent members were unsuccessful applicants to
the scheme. The judge gives an impression of suspicion
of campaigning organisations and their lawyers. This
attitude is underscored by this section on womens
correspondence with the judge: happy women concerned
with family rather than campaigning, who are spending
money on spoiling themselves, rather than on the
amelioration of pain and disability.
I was ultimately glad that most exaggerated
accounts were ignored and compassion was applied
to these women who perhaps were influenced by
others to make the statements. This led to some of
the more pleasurable moments as judicial assessor
when I read the warm letters and notes from the
women who wrote to me after they received their
awards to tell me that they were certainly intent on

spoiling themselves a little. Several very happy


applicants rang to tell me how they were going to
spend their money. One lady was buying a special
hat. One applicant lifted my heart when she told me
that she had never had any money in her savings
account. Now she looked at her bank account every
morning, for the sheer pleasure of seeing the
amount of money in the account in her own name.
One delightful applicant invited me to tea at her
house and one wrote a poem of appreciation. Most
women who wrote, told me that it gave them huge
pleasure to be able to help their children or their
grandchildren with their awards
The reports approach undermines human rights
campaigners, group organising, and social justice
lawyering in one fell swoop, perhaps forgetting that
without the work of these organisations the redress
scheme however flawed would not have been set up
at all, and many women would not have been able to
access it.
Reproduction, Birth and Womens Bodies. The
pro-natalist tone of the report is striking. For example, the
judge repeatedly explains that even though many
applicants to the scheme complained of difficulty and
pain in sexual intercourse for a year after the operation,
most women who received awards under the scheme
went on to have multiple further pregnancies; the first
within 12-18 months of the symphysiotomy. Thus a
young womans damaged sex life, leading to more
babies, equates to a good recovery. Of course, this is
less evidence of the acceptability of symphysiotomy than

of the general unavailability of contraception in Ireland


until the 1970s. This analysis suggests that the healthy
female body is one that holds up to repeated childbirth,
whether that childbirth was chosen or not. This
impression is solidified by later references to voluntary
infertility; a medical term which works to pathologise
women who managed not to have more babies. Indeed,
the report strives to normalise a model of reproductive
life rooted in womens suffering. For example, it notes the
difficulties in distinguishing between injuries caused by
symphysiotomy (which may deserve redress), and the
presumptively acceptable injuries caused by having a
dozen children, difficult forceps births, or one or more
protracted, exhausting labours (which never can). Later,
the report patronises women who applied to the scheme
and were found not to have undergone symphysiotomy,
attributing their memories to confabulation. The judge
suggests they mistook other traumatic birth experiences
for symphysiotomy. Here the wrongfulness of
symphysiotomy is clearly being assessed against a
backdrop of normalised suffering and obstetric violence.
Arguably these mistaken applications demonstrate a
deeper problem in the history of childbirth in Ireland,
which
the
exceptionalisation
and
defence
of
symphysiotomy only serve to mask. Finally, the report
mentions
that
some
women
who
underwent
symphysiotomy were extremely grateful to have a lovely
healthy baby. This is one of several examples of places in
the report where the judge fudges the elementary

difference between symphysiotomy as a last-resort,


emergency, life-saving procedure, and symphysiotomy as
an elective procedure, substituted for C-section. A Csection might also have given the same women the same
healthy baby.
Testimony Direct quotation from womens testimony
only appears in the context of discussing and
contradicting unsuccessful applicants submissions;
representing their statements as part of a clumsily
orchestrated attempt to mislead the scheme. A long list of
fragments, for example, appears at pages 100-101 of the
report. There is no detailed discussion of successful
applicants testimony. By contrast, the report contains
over 100 pages of direct quotation, often lengthy, from
documents and statements made by doctors who
performed symphysiotomies.
Religion: Like the High Court and Court of Appeal in
Kearney and Farrell the judge finds that there were
medical as well as religious justifications for the Irish
practice of symphysiotomy. In one breath the report says
that there was no evidence of a religious as opposed to
an obstetric reason for performing symphysiotomy, and
explains that its development in Ireland was connected to
a unique need to avoid potentially dangerous repeat Csections in circumstances where contraception was not
available and sterilisation was not performed. There is a
stubborn refusal here to recognise that religion is as
much a matter of structural power as individual religious
belief. Religion was present in the development of

symphysiotomy even where its proponents did not use


religious language This was because contraception was
not available and sterilisation was not performed because
medical practice and the law of the land reflected
religious mores. The report suggests that contraception
was not countenanced by women in a country where the
majority happily embraced Catholicism, so that
symphysiotomy developed in response to womens
spiritual needs. This analysis, of course, forgets that
women were not given the choice, as a matter of law, to
control their fertility and that there is ample evidence that
those women who could do so used contraception
illegally, whether it sat easily with their consciences or
not. The expectation that women should have repeated
pregnancies, and should be willing to suffer for them, at
the hands of expert men, was a matter of vernacular
religion which cannot be reduced to happy preference.
The Irish practice of non-emergency symphysiotomy was,
therefore, a response to a particular set of state and
religious structures which facilitated harmful medical
practice. There was not the same reliance on
symphysiotomy in the same types of case in any other
country, precisely because that set of state and religious
structures did not exist. And precisely because it existed
in Ireland, certain Catholic doctors had an outlet to
develop and legitimate that practice. As the Court of
Appeal
recently
confirmed,
non-emergency
symphysiotomy was championed by only one school of
obstetric thought in Ireland, and acceptance of practice

varied from doctor and doctor and from hospital to


hospital: it is doubtful whether it would have achieved
any purchase without the driving engine of institutional
Catholicism.
Human Rights Violations: The judge finds that
symphysiotomy as practiced in Ireland was not a
deliberate act of torture. She makes this finding
(sweeping across hundreds of cases) on the basis that
symphysiotomy was used to improve maternal outcomes
rather than with any intention to inflict pain. Doctors did
their best. Like the Walsh report and the Farrell and
Kearney cases, this report finds that the development of
symphysiotomy in Ireland was, at certain times, within the
(generous) bounds of documented acceptable medical
practice, albeit some doctors strayed beyond those
bounds in practice. For the judge, that is enough to show
that important legal claims can be laid to rest. Here she
shows a stunning narrowness of legal imagination.
Contemporary human rights scholarship recognises that
obstetric violence is a real and complex human rights
issue. Even if a medical practice can be therapeutically
justified in principle, we must consider how it is
employed in the context of pregnancy and labour. In the
case of symphysiotomy, consent is the crucial issue. It has
not been possible to canvas consent in High Court cases,
for procedural reasons relating to evidence and lapse of
time. Neither does the redress scheme seek to address
the issue of lack of consent. The Walsh report, although
flawed, accepted that medical culture in Ireland at the

time was such that womens informed consent to


obstetric procedures was not always sought. Judge
Harding-Clarks report directly contradicts this finding
she simply states that she does not believe that women
were not told that a symphysiotomy would be performed
on them. From a human rights perspective, this
observation is useless.
In the forced sterilisation case of VC v. Slovakia the
European Court of Human Rights held that the Article 3
prohibition against inhuman and degrading treatment
can be violated where an accepted therapeutic practice is
paternalistically imposed on a patient without adequate
consent. It was irrelevant that the medical staff in that
case did not act in bad faith, or with the intention of illtreating the patient it was enough that they disregarded
her autonomy. And even had she not suffered physical
pain, mental distress is sufficient to prove inhuman and
degrading treatment. In view of the violation, the state
was also obliged under Article 3, to carry out an effective
investigation. The court further found a violation of the
Article 8 right to private life, because of the impact of the
surgery on the womans reproductive life. In the right
case, where it is proven that doctors chose a particular
medical practice for discriminatory reasons, they might
also find a violation of the Article 14 right to freedom
from discrimination. The standard of informed consent is
higher than mere knowledge. Both VC and the CEDAW
Committee in AS v. Hungary, stress, for example, that
obtaining the patients signature is not enough.

Consent must be voluntary and informed, and in nonemergency circumstances the patient must be given
enough time to consider the treatment, weigh her
options and refuse. Special care must be taken with
patients who are vulnerable; such as women in labour.
Protection of consent goes beyond simply being given the
name of the procedure about to be performed on you, or
having it explained after it has already been performed.
Conclusion. It is a mistake to think of the story of
symphysiotomy as one about bad doctors. It is a story
about bad systems of knowledge, and bad cultures, which
corner women, induce compliance, deny their autonomy
and thereby wound them. Those cases are extraordinarily
difficult to litigate because the assumptions which drive
the old system persist in judicial reasoning and are
exacerbated by an adversarial framing. Outside the
courtroom, we can find the same problems. What is
striking about this report is that it uses constructs from
those systems and cultures valorising reproduction
however painful, stoking a suspicion of women who claim
their human rights, privileging medical literature over first
person testimony to silence protest. It deserves closer,
and more critical reading and discussion.
THE SURGICAL SYMPHYSIOTOMY EX GRATIA
PAYMENT SCHEME REPORT TO MINISTER FOR
HEALTH SIMON HARRIS TD of JUDGE MAUREEN
HARDING CLARK 19th OCTOBER 2016
http://health.gov.ie/wp-content/uploads/2016/11/TheSurgical-Symphysiotomy-Ex-Gratia-Payment-SchemeReport.pdf

Final-Final-walsh-Report-on-Symphysiotomy The scheme


draws on Professor Oonagh Walshs final Report on
Symphysiotomy in Ireland 1944 -1984 (the Walsh Report)

http://health.gov.ie/wpcontent/uploads/2014/07/Final-Finalwalsh-Report-on-Symphysiotomy1.pdf
Ireland, Symphysiotomy and the UNHRC
July 21, 2014 by

Mirad Enright is a lecturer at Kent Law School and is completing a


PhD at University College Cork which examines the legal treatment of
questions in Muslim divorce practice in the UK and the United States
from the perspective of a multiculturalist feminism.

Power is cautious. It covers itself. It bases itself in anothers


pain and prevents all recognition that there is another by
lopped circles that ensure its own solipsism. Elaine Scarry,
The Body in Pain
Ireland was examined by the UN Human Rights Committee under the
ICCPR last week. The states response to the Committees follow up
questions has been published online. These written answers
supplement the oral presentations made by the Minister for Justice and
civil servants at the hearings in Geneva. This document is useful as a
time capsule of the governments position on redress for institutional
abuse of women and children, because it contains several pages of
defence of the official position on reparations for survivors of
symphysiotomy. Symphysiotomy is a childbirth operation, which
involves breaking a womans pelvis, usually before or during labour. It
was revived in Ireland in the 1940s by a small group of conservative
Catholic doctors, working in state-run or state-supervised hospitals, as
an alternative to Caesarean section and was performed in hospitals all
over Ireland into the 1980s. (If you need a reminder of the violence
and abuse which characterised its practice in Ireland, see here.) On
July 1, the Government published Judge Yvonne Murphys Independent
Review of Issues Relating to Symphysiotomy (the Murphy Report)
which outlines a possible redress scheme for survivors. The scheme
draws on Professor Oonagh Walshs final Report on Symphysiotomy in
Ireland 1944 -1984 (the Walsh Report) published on the same date. It
is important to stress that the fine print of the symphysiotomy redress
scheme has not yet been made public. The States written response to
the Committee, unfortunately, has introduced yet more ambiguity into
an already murky public discussion. Hundreds of women who are
members of Survivors of Symphysiotomy, disappointed by the
governments approach to redress, have begun High Court litigation
against the hospitals which performed their symphysiotomies, and
against the State (invoking the law of negligence and the principles
established in OKeeffe v. Ireland at the ECHR).
It seems fair to conclude that the State either does not understand the
concept of effective remedy under Article 2.3 of the ICCPR, or is not
interested in meeting that obligation. The treatment of survivors of
symphysiotomy is part of an embedded pattern. Less than 48 hours
after its examination before the ICCPR, the government announced an
inquiry into abuses in state-run and state-supervised institutions
focusing on the Mother and Baby Homes, which bears all the hallmarks
of this governments dogged disregard for survivors interests. My
point here isnt to suggest that Article 2.3 ICCPR provides the only, or
most important, or most effective lens through which we might look at
the governments approach to symphysiotomy. But it does usefully

show up the states determined approach to managing an important


set of political claims about gender, religion and power out of public
existence.
As Sir Nigel Rodley, stressed in his concluding comments (video), the
right to an effective remedy encompasses accountability measures as
well as material provision. In its General Comment 31 the Committee
explained the concept of effective remedy, and provided guidance on
the shape which investigation and reparation should take. In applying
the principles in this document to the proposed symphysiotomy
redress scheme, it is important to bear in mind that Rodley spoke of
some symphysiotomies on Tuesday in terms of violation of Article 7 of
the ICCPR: the prohibition against torture, cruel, inhuman and
degrading treatment, including forced subjection to medical
experimentation. (The Minister for Justice admitted at the hearing that
many symphysiotomies were performed without womens consent, and
the written response to the Committee retains this admission, while
attempting to suggest, against the testimony of women, that many
symphysiotomies were life-saving emergency surgeries, while others
were elective.) That being the case, the State must also take account
of the Basic Principles and Guidelines on the Right to a Remedy and
Reparation for Victims of Gross Violations of International Human
Rights Law and Serious Violations of International Humanitarian
Law. (the Van Boven Principles)
Investigation
The right: The state has a positive obligation to exercise due
diligence to prevent, punish, investigate or redress the harm caused
by such acts by private persons or entities. A failure by a State Party
to investigate allegations of violations could in and of itself give rise to
a separate breach of the Covenant. Cessation of an ongoing violation
is an essential element of the right to an effective remedy. The
Committee has said that [a]dministrative mechanisms are particularly
required to give effect to the general obligation to investigate
allegations of violations promptly, thoroughly and effectively through
independent and impartial bodies. National human rights institutions,
endowed with appropriate powers, can contribute to this end. There is
an inalienable right, under international law, to know the truth about
human rights violations. Moreover, as the UNCAT has observed in
respect of the comfort women abused by the Japanese
military, repeated denial of victims experiences by those in public
office may have the effect of re-traumatizing victims. Similarly, in its
2008 observations on Japan, the UNHRC criticised politicians efforts to
refute the claims of comfort women and deny the injuries done to
them.

Mario Draghi: ECBs focus on growth


Tuesday, November 29, 2016
Francesco Canepa

Stalling recovery would be the greatest risk facing the


eurozones economy, the head of the ECB has said,
underscoring, before an important policy decision next week,
the ECBs focus on supporting growth.

The ECB is due to decide next week on whether to extend


beyond March its 1.74trn bond-buying programme, the
centre piece of its much-criticised stimulus policy, some say
has created bond and property price bubbles and should be
wound down.
Mario Draghis comments, in response to a question from an
EU parliamentary committee about the risks to financial
stability from ultra-easy monetary policy, suggest the ECB
remains firmly focused on stimulating growth.
Right now the greatest risk comes from impaired growth,
Mr Draghi said. The greatest risk comes from the possibility
the recovery doesnt firm up and stalls.
The ECB has pushed its benchmark interest rate below zero,
bought 80bn of bonds a month and given free loans to
banks and lowered borrowing costs to bring eurozone
inflation back to its target of almost 2%.
Inflation is picking up, having reached 0.5% in October, and
is expected to exceed 1% next year.
But Mr Draghi said ECB rate-setters would look for ways to
preserve very substantial stimulus when they meet on
December 8 and assess different options for their bondbuying programme.
At our monetary policy meeting in December well assess

the various options that would allow the Governing Council


to preserve the very substantial degree of monetary
accommodation necessary to secure the sustained
convergence of inflation towards [target], Mr Draghi said.
After more than a year and a half of aggressive bond-buying,
the ECB owns over a quarter of the debt of countries such as
Germany and faces the threat of running out of paper to buy
that fits the many constraints of its scheme.
Mr Draghi said the programme could be adjusted. Sources
have told Reuters the ECB might buy fewer bonds from
countries where scarcity is starting to emerge or buy more of
each bond issue.
We are in a position to address this problem, he said. The
programme is sufficiently flexible that can be revisited.
Confirming a Reuters story from last week, Mr Draghi said
the ECB was upgrading its securities-lending programme.
Last weeks CSO data on the Irish labour market for the third
quarter of the year was stronger than expected.
The new head of Guaranteed Irish has said she intends to
bring the brand firmly into the 21st Century and expand its
membership base, adding its relevance has never been
greater.

The non-profit membership-driven organisation which has


promoted Irish-made product for more than 30 years
yesterday named veteran tourism marketing executive Brid
OConnell as its new executive director.
As part of Guaranteed Irishs recent rebranding, the
organisation moved to accept members conducting a
significant part of their business in Ireland, as well as
indigenous firms and Ms OConnell intends to build upon
that.
In the wake of a tumultuous year for international relations
and recent political developments in our closest
neighbouring countries, its now more important than ever
before to support businesses that are truly contributing to
Irelands economic development, she said
My ambitions are to expand the membership base of
Guaranteed Irish and bring this much-loved Irish brand firmly
into the 21st Century with a big focus on digital
communications.
Our member companies wear their Irishness and Irish links
as a badge of honour at global level.
Being based in Ireland gives them a competitive edge. To
ensure the best companies continue to operate here, we
need to maintain and grow awareness of the benefits of
doing business in Ireland.
Thats what Guaranteed Irish is all about.
Discount department store chain Guineys returned to profit
last year, despite management calling the period a
challenging time.

Newly filed accounts for the well-known retailer, which has


10 outlets spread across Dublin, Cork, Limerick, Castlebar,
Tralee, Mullingar, Waterford, and Clonmel show it
generated pre-tax profits of 116,662 in the 12 months to
the end of last January.
This was a turnaround from a pre-tax loss of 236,837 for
the preceding year.
The opening of a new store in Kilkenny also helped boost
revenues by 7% to 21.58m in the latest year.
In the directors report section of the new accounts, Guineys
management said they see the key significant risk and
uncertainty facing the business being the increased
competition from other retailers.
Regarding the last financial year, management said the
period had been a challenging year, due to economic
conditions.
However, the Dublin-based companys balance sheet
remains strong with accumulated profits amounting to
11.8m, contributing to shareholder funds totalling 11.86m.
The shareholder funds included 2m in cash.
Last years profit takes account of operating lease rentals of
909,165 and non-cash depreciation costs of 625,933.
The accounts also show during 2015, the numbers employed

by the company increased from 163 to 197 with staff costs


decreasing from 4.6m to 3.9m.
A breakdown of the staff shows 182 are sales staff, five in
administration and 10 in management.
The companys directors, Michael Guiney, Suzanne Guiney,
and Gretta Guiney, shared 158,328 in remuneration
down from 172,707 shared out in 2015.
The business paid 66,247 in dividends to shareholders
during the year. This was more than halved from the
previous year.
The expansion of the firm in recent years is underlined with
the value of its fixed assets increasing from 6.4m to 7.7m.
Guineys first opened in doors in 1971 and now has two
stores in Dublin on North Earl St and Talbot St.
The company was solely Dublin-based until 1992, when a
branch opened in Cork.
This was followed by new stores in Tralee, Waterford, and
Limerick, and then Castlebar in 2008, while the companys
online store was launched in 2012.
In 2013, Guineys opened a store in Clonmel, followed by
Mullingar. Most recently, the company opened its doors in
Kilkenny in 2015.
The firm recorded post-tax profits of 62,625 last year, after
paying out 54,037 in corporation tax.
Saudi Arabia pulled out of planned talks with non-Opec
nations including Russia as disagreements about how to
share the burden of supply cuts stood in the way of a deal to
boost prices just days before a make-or-break meeting in
Vienna.

In late European trade, Brent crude fell 1.8% to $48.13 a


barrel. Organization of the Petroleum Exporting Countries
(Opec) officials were scheduled to meet with non-members
including Russia on Monday before a ministerial meeting in
Vienna two days later.
Instead, the group called another internal meeting to try to
resolve its own differences, particularly the question of
whether Iran and Iraq are willing to cut production, said two
delegates, asking not to be identified because the talks are
sensitive.
Saudi Arabia wants an Opec deal in place before
conversations with other producers, one delegate said. The
setback suggests that Saudi Arabia remains split from its two
biggest Middle Eastern rivals at Opec. Iran insists it should
be allowed to restore output to pre-sanctions levels, while it
remains unclear if Iraq is still disputing the Opec supply
estimates that would provide the basis for any cuts.
With less than a week until the crucial ministerial meeting,
the refusal of just one major producer to participate could
scuttle the whole agreement reached in September in
Algiers.
The whole Algerian deal wasnt clear from beginning and
their approach was leave it to later, said Abdulsamad al-

Awadhi, a former Opec official for Kuwait who is now an


independent analyst in London. Two months after the initial
accord, Opec leaders are confused and the groups founding
members cant solve differences, but they want to have a
deal with non-Opec. This a tough call.
In September Opec agreed the outline of its first production
curbs since the global financial crisis in 2008. Since then, the
group has spent two months trying to agree how to share the
cuts, which would bring its production to a range of 32.5m to
33m barrels per day.
Opec estimates it pumped 33.6m barrels a day last month.
Technical experts from member countries met in Vienna this
week to finalise details of the cuts.
After two days of meetings, the talks concluded without
resolving the issue of Iran and Iraq. Ministers from Saudi
Arabia and Iran will not arrive in Vienna until Tuesday,
leaving little time for them to hold talks before the big
meeting.
Capital Economics in London said it expects some facesaving deal but for it to have little material impact on
supply.
Earnings rose by an extremely modest 0.2% in the latest
quarter, as the job vacancy rate remained unchanged
despite signs of militancy by public sector unions.

The CSO figures for the three months to the end of


September also show that weekly earnings across all parts of
the economy ticked higher by 1.2% from a year earlier.
In the public sector, wages were up 1% from a year earlier,
running behind an increase of 1.8% in the private sector,
analysts said.
Overall wage growth remains subdued despite a significant
tightening in the labour market in recent quarters,
suggesting that there is plenty of slack left in the Irish labour
market, said David McNamara, an economist at Davy
Stockbrokers. Unadjusted weekly earnings rose in 11 of the
13 areas of the economy.
At 5.7%, construction workers had the largest increase in
earnings in the year, while earnings in two other areas
professional and technical activities, and accommodation
and food services both rose 4.9%, the CSO said. Earnings
in the areas of information and communication and
education fell 0.9% in the year.
An unchanged job vacancy rate of 1% in the year suggests
there is no weakening in the supply of labour. Numbers
employed in the public sector have risen to 383,200, an
increase in the year of 1.8% from 376,300.
Neil McDonnell, new CEO of business group Isme, said the

figures showed there was no justification in public sector


unions seeking restoration of pay.
Private sector wage expectations are necessarily more
modest, he said.
The boom in infant formula exports to China last year
contributed to pre-tax profits at Limerick based Wyeth
Nutritionals more than doubling to $165m (155m).

Last year, Ireland became the second largest exporter of


infant formula to China, exporting 13,100 tonnes in the first
half of the year alone.
Now, new accounts filed by Wyeth Nutritionals Ltd show that
its profits soared as revenues increased by 11% to $584m.
Along with Abbott, Danone, and Kerry Group, the Nestlowned Wyeth Nutritionals is one of the main formula
companies based here.
The directors report for Wyeth state that the increase in
revenues was driven by increased demand in the greater
China area.
The China market is expected to grow even more for the
Irish-based players following Chinas decision last year to
abandon its controversial one-child policy.

The market is set to grow by 10% to 15%, with 1.5m-2m


more babies born each year in China.
The plant at Limerick is licensed to produce infant nutritional
products from more than 50m gallons of milk each year.
The accounts show that the firm last year recorded operating
profits of $203.7m, up 62% from 2014.
It had an operating margin of 35%.
Staff numbers at the plant in Askeaton increased from 603 to
617, while staff costs dipped from 84.44m to 83.88m.
Pay to directors last year also fell, from 660,000 to
552,000.
After paying out a dividend of $112m in 2014, no dividend
was paid last year.
Shareholder funds stood at $1.2bn, including $357m in
accumulated profits.
It spent $12.4m on research and development in the year.
The Governments Ireland Strategic Investment Fund (ISIF)
has invested 30m for a stake in Finance Ireland Investment,
a lender which primarily focuses on SMEs, in a bid to boost
lending for businesses.

It is the first time that the fund has taken a stake in a nonbank lender.

Set up 14 years ago by Billy Kane, who once headed up


Permanent TSB, Finance Ireland also advances loans to the
agriculture, motor, and commercial property firms, and to
borrowers.
It said that it is on course to provide over 300m in new
lending in 2016, but expects that the new funding will lead
to a substantial amount of new loans becoming available in
years to come.
A spokesman said that the cost of its current lending to SMEs
was at 5.5%, and up to 8%.
Any new competition in the loans market will be welcomed
by Irish SMEs.
Central Bank surveys consistently show that Irish SMEs pay
among the highest rates for their loans in the eurozone.
This is despite ECB monetary easing having led to large falls
in key funding rates to record low levels.
This significant investment by ISIF underpins our very
ambitious growth plans for the coming years, Mr Kane said.
Our mission is to create a major non-bank lender in the Irish
financial landscape, offering customers a real alternative to
the traditional banking sector, and we are well on the way to
achieving that.
ISIF was attracted by the opportunity to support an
established and experienced management team to expand
its non-bank platform and in particular grow its SME and
agri-leasing businesses, said Eugene OCallaghan, ISIF
director.
This investment complements the products provided by
other non-bank platforms in the SME sector that ISIF has
supported.
Finance Ireland and Rabobank already work with ISIF with its
MilkFlex Fund, which provides low-cost loans to Glanbia CoOp Society.
It said that MilkFlex was the first fund of its kind to offer
Irish farmers access to flexible, low-interest loans.
For its existing loans to SMEs, the lender said it requires a
business plan outlining an overview of the business,
management, markets, and historic and forecast financial
information.

It said it aims to make a decision in five business days on


loan applications.
Analysts have hailed a trading update from Origin
Enterprises as showing the international agri-services firm
was on course to achieve their price targets for 2017.

The shares nonetheless eased to 6.20 yesterday, leaving


Origin down almost 18% since the start of 2016.
Releasing the trading statement that covers the three
months to the end of October, the company said it had an
encouraging start to the year.
Revenues rose by 11% to 333.6m from the same quarter a
year ago, but acquisitions accounted for about two-thirds of
the uplift. Underlying revenues rose by 1.3% when the
dampening effects of currency translation costs were taken
into account.
Origin has a presence in the UK, Poland, Ukraine, and
Romania.
Although sector sentiment remains subdued reflecting the
current pressures on farm incomes, there has been an
encouraging start to trading in the seasonally quiet first
quarter, it said.
There was a solid foundation for the seasonally more

important second half of the financial year, it said.


Merrion Capital analyst Darren McKinley raised his price
target to 6.75. Cathal Kenny at Davy Stockbrokers said that
excluding its mostly Polish-focused grain marketing
activities, underlying revenues rose by 7.2%. The broker has
an outperform call on the shares.
Jason Molins at Goodbody Stockbrokers said it was
encouraged, but was unlikely to make material changes
to its forecast right now.
The pressure facing retailers over the Long Black Friday
weekend following the plunge in sterling since the Brexit
vote could ease significantly as the euro faces the first of its
own looming tests next week, according to analysts.

New political pressures on the euro could also help Irish


SMEs exporting across the Irish Sea, as new figures showed
the UK was so far weathering the fallout from its Brexit
decision.
The upbeat UK figures come at a time when traders are
trying to assess the outcome of next weekends Italian
referendum, which could spark a political crisis in Rome.
The turnaround in the fortunes of sterling has been marked

in the last two and a half weeks. Though trading slightly


lower yesterday at 85.1p, the UK currency has nonetheless
clawed back about half of all of its worst losses sustained
against the euro since the shock Brexit vote in late June.
The rebound will likely ease fears over retailers in the
Republic leaking sales to the North and to UK online retailers
during this cyber-spending weekend and ahead of the
Christmas spending splurge. Sterling has surged against the
euro from a post-Brexit low of 91p on October 11.
At 91p, the exchange rate also threatened to wipe out plans
of Irish exporting SMEs because of the headwinds they face
from a weak sterling. Since then, an English high court ruling
and emollient comments from prime minister Theresa May,
as well as better news for the UK economy, has helped boost
sterling.
British retail sales grew at their fastest rate in more than a
year, according to a Confederation of British Industry survey
published yesterday, as shoppers there have shown little
sign of retrenching spending since Junes vote to leave the
EU, despite a sharp fall in sterling that looks set to push up
prices early next year.
Separately, official figures showed UK firms brushed off the
uncertainty over Brexit in the three months after the
referendum and increased their investment, helping to drive
solid growth in the economy.
There are now also political worries bearing down on the
euro, including the possibility of a no vote in the Italian
referendum, which would raise fears that elections in the
Netherlands, France, and Germany next year would lead to
Brexit-like populist rejections of establishment politics.
David Lamb, head of dealing at Fexco, said that since
Octobers nadir that political factors were boosting sterling
and weighing on the euro. Sterling could rise to 83p against
the euro by the end of the year, but a move to 80p would
need a fresh catalyst and that could be the Italian
referendum, Mr Lamb said, adding that the Brexit issues
surrounding sterling will not evaporate anytime soon.
I think sterling can recover a bit more [and] 83p by yearend is not impossible, he said.

Sterling was trading as high as 69p against the euro this


time last year, and was at 76p on the eve of the Brexit vote
in June.
Philip OSullivan, chief economist at Investec Ireland, which
has one of the largest currency treasury desks in Ireland,
said that sterling at 85p against the euro spells much better
news for Irish exporters.
Consumer spending in the UK has been a positive surprise
for the UK economy there, but sterling still faces significant
Brexit-related risks, he said.
Pre-tax losses at CityJet last year plummeted by 66% to
10m, in what the airlines directors are calling a
turnaround year for the company.

The decrease in losses at CityJet came despite its revenues


having dropped by 8% from 179.8m to 165m.
The directors said they were delighted.
The turnaround came from efficiency gains and by focusing
on on chartered flight, as well as cutting costs, the airline
said.
It was sold by Air France to Germanys Intro Aviation, in
2014.
This week, the airline narrowly avoided a pilots strike when

Unite deferred plans after agreeing to talks at the Workplace


Relations Commission.
On the 2015 accounts, executive chairman Pat Byrne said
yesterday: These results clearly illustrate the improving
trading position of CityJet as we continue to reshape the
business into a profitable and sustainable aviation operator.
Revenues this year were 30% higher than 2015, he said.
In 2015, we sowed the seeds of this restructuring, ordering
new aircraft, acquiring an airline in Finland and securing
long-term wet-lease business to de-risk us from the volatility
of the air transport markets, Mr Byrne said.
Cityjet made 14m of last years total 165m revenues in
Ireland. The companys largest market is France, where it
had 53m of its sales.
Staff costs in the year totalled 34m, while directors were
paid 1.58m, including a 478,000 payment for loss of office
during the year.
Former CEO Christine Ourmieres resigned in March 2015.
Two other directors resigned in March 2016.
Mr Byrne said: We have taken delivery of eight new CRJ900
jets, which we operate for Scandinavian Airlines, with four
more CRJ900s arriving next March. We also took delivery of
the first three new Superjet SSJ100s, from an order of 15,
which we are we very successfully placing in the charter and
wet-lease markets.
He said half of its 26-airline fleet was providing so-called
wet-lease services for other airlines.
It plans to take delivery of nine more aircraft next year.
Clearly this is a growing business, with more growth to
come. The 2015 results show that the trajectory we are on is
delivering results, Mr Byrne said.
CityJet employs over 900 staff, with bases at Amsterdam,
Dublin, London, Stockholm, Paris, and Helsinki.
Four aircraft are based in Paris operating services for Air
France.
Eight planes are based in Stockholm and Helsinki operating
on behalf of SAS.
meets a couple whose idea of a happy new home is a

currently uninhabitable who dismissed the idea of a turnkey


home and opted instead for a 450-year-old castle which they
plan to renovate.

Youve got your turnkey property where new owners can


walk in and just switch on the kettle... Or for similar money
you could become the proud, and hardworking owner of a
castle.
Liz and Gordon Jones opted for the 450-year-old option.
But any kettles boiled at Sigginstown Castle in Tacumshane
in County Wexford, might be over an open fire.
Its a bit of a work in progress, if youre an optimist, and
more of a crumbling moneypit, if youre not.
The property consists of three buildings which were built in
different eras: a tower built circa 1550; an attached house
built in the 17th or 18th century; and the remains of two
walls which were once probably part of an agricultural
building.
So the tiaras and velvet robes might have to stay in storage
a bit longer.
Liz and Gordon are Americans of Irish and Scottish ancestry
who have a passion for all things mediaeval.

Their two children are off at college in the US, so they figured
it was the perfect time to go castle-shopping with help
from professional castle-hunter, Bena Stutchbury who was
involved in bringing Kilcoe Castle to Jeremy Irons attention.
Bena finds properties for anyone looking for castles or
similar buildings that may or may not be on the open
market.
She doesnt have a formal rating for the properties she
sources, but describes Sigginstown Castle as a humdinger
and really special.

The Jones dont just want to renovate a castle as a home,


they also want to create a place for living history and
community events.
Liz, a global programme manager providing technical
services and training, explains: Our family has participated
in medieval re-enactment for the last 30 years.
We have always dreamed of having a venue to teach
traditional and historical skills, and learn more ourselves.
We would like to see the building used for community
activities and workshops at various stages of construction.
That might be a worthy ambition, but the couple seem to be
grounded in reality too: We were especially attracted to the
attached house, as we realised that spiral staircases in keeps
are tough as you get older.
And Gordon is adamant that proper plumbing is installed
there is a garderobe, but we will use that for ducts and
wiring rather than its original intention.
A polite enquiry as to whether the couple are billionaires is
met with shrieks of laughter: Definitely not billionaires or

millionaires probably not even thousandaires, says


Gordon.
Since we are not fabulously wealthy, our challenge will be
to balance creativity, cost and conservation. Gordon does
not want to eat cat food in his old age due to this project!
notes Liz.
Gordon, an emergency medical technician with a local
ambulance company in Connecticut, also worked as a
professional draughtsman for many years, so hopefully it will
be just the latter skills hell need for this project.

He is also a professional musician, singing church music,


classical and opera, as well as playing American and Irish
folk music on guitar.
Liz isnt afraid of a challenge either she took up the fiddle
two years ago to learn Irish trad music, having not touched it
since age 15.
The couple want to renovate the property, which is listed as
a historical monument, to a habitable condition.
And they want to get the community involved as much as
possible.
They explain: We are sponsoring a student design

competition. We hope to get students to submit design ideas


for the property.
We hope to involve the winner in the project going forward
if that is feasible.
The design should conserve the tower in a state
contemporary with its 1550 construction it will be a
crudely liveable space but with few, if any, modern
amenities.
However, the Jones want to live in the attached house while
minimising the impact on the historical fabric.

We are mediaeval buffs but we also want to live in the


21st century so we will need plumbing and flush toilets etc,
said Gordon.
The Jones new home has no roof, windows or doors, but it
does have parapets, a watchtower, garderobes, a portcullis
and a machicolation (an opening in the battlements, through
which stones or other material, such as boiling water or oil,
could be dropped on attackers).
They have been busy clearing some of the weeds from the
site this week and hope to draft in family and friends as well
as experts.
They have found some bits of broken pottery and some early
17th century cobbles but are not expecting or hoping to find
some archeological treasures.

Pizza delivery firm Dominos Pizza plans to increase its


presence across the UK to 1,600 stores after seeing a strong
performance from new outlets and a positive market outlook,
it has said.

Outside the UK, Dominos has also identified opportunities


for 400 stores, excluding its German joint venture, up from
around 100 at the end of 2016. The firm, which expects to
have 950 UK stores operating by the end of 2016, had
previously been targeting 1,200.
Our continued strong ecommerce performance and our
collaboration with our dedicated franchisees, enable us to
increase our UK presence significantly, said chief executive
David Wild.
Internationally, our progress in Switzerland and new
collaborations in the Nordic region are exciting opportunities
for the business, Mr Wild said.
Shares in the firm, down almost 3% so far this year, were up
3% at one stage yesterday. Dominos, which hosted an event
for financial analysts yesterday, said it was continuing to
trade well and profit guidance for 2016 was unchanged.
Analysts are on average forecasting a pre-tax profit of

84.3m (98.7m), up from 73.2m made in 2015.


The firm said re-phasing of supply-chain projects mean that
full-year capital expenditure will be around 20m, less than
the 33m indicated at the half year.
Dominos said it remains committed to the return of surplus
cash to shareholders through buybacks, but had paused the
process in recent weeks because of a technical issue it is
resolving.
A huge downward revision by the UK government of its
bailed-out banks has once again put a spotlight on the overvaluation of AIB and other banks here on the States books.

In an assessment prepared as part of its budget this week,


the British government has said it faces an almost 27bn
(31bn) loss from rescuing failed banks during the 20072009 financial crisis after a slump in the lenders value since
Britains vote to leave EU.
Shares in RBS the owner of Ulster Bank and Lloyds have
fallen by about a fifth since the June 23 vote to leave the EU.
Their valuations have also been rocked by the slide in bank
shares across Europe this year, which has hit hard the
stockmarket-listed Irish banks too.
The Office for Budget Responsibility, Britains independent
budget watchdog, said it has increased its forecast for

potential UK taxpayer losses by more than 9bn since March.


Britain spent more than 136.6bn rescuing lenders, including
RBS, Lloyds and Northern Rock. However, it has so far only
managed to recoup just over half of that money.
Shares in Bank of Ireland, in which the Government here has
a stake of just under 14%, have slid 22% since the June 23
vote. The banks value is down by over a third to 7bn from
11bn at the start of the year.
Such a sharp slide will have a some sort of read-through for
the valuation of AIB, which is all but owned outright by the
Government.
Last month, the Irish Examiner reported the Government was
likely to slash its current 12.2bn valuation of AIB on the
States books by billions, to reflect the rocky-times European
bank shares have faced this year.
The Government, through the Ireland Strategic Investment
Fund, last revalued Bank of Ireland at the end of June, but
left unchanged an earlier valuation for AIB, at 12.2bn.
The agency is expected to announce its new bank valuations
in the coming weeks.
Alan McQuaid, chief economist at Merrion Capital, said
yesterday that bank valuations across Europe face even
choppier waters if Italys prime minister Matteo Renzi loses
his December 4 referendum.
The vote is designed to usher in reforms in the country and
Mr Renzi may resign if a no vote prevails.
Italy is home to some of the weakest banks in the eurozone
and its politics could have a disproportionate effect in
rocking European bank shares, amid fears the perceived
Brexit-style revolt against establishment politicians will
spread.
Following the Brexit vote, there are more political hurdles for
bank valuations in 2017 from the Dutch, French and German
elections. Mr McQuaid said however, that 2018 could be a
good year for stockmarkets and a good time to sell a bank, if
those new political minefields were avoided.
Cantor Fitzgerald Ireland bank analyst Stephen Hall said the
valuation of over 12bn for AIB on the Governments books
was very high. That valuation implies AIB is trading at a

large premium to Bank of Ireland, Mr Hall said, adding that a


yes vote in the Italian referendum could, however, lead to a
re-rating of all European bank shares.
Finance Minister Michael Noonan last week launched a
contract for the appointment of advisers who will explore the
potential for selling AIB in the coming years.
Luxury spending is set to benefit if US president-elect Donald
Trump succeeds in lowering US taxes, spurring rich
consumers to buy more, according to the chief executive of
French cognac maker Remy Cointreau.

Affluent households should continue to benefit from these


tax decisions, chief executive Valerie Chapoulaud-Floquet
said about the Remy Martin owners first-half results.
The decrease in the tax rate should continue to stretch the
market, she said.
As part of his campaign, Mr Trump proposed tax cuts worth
$6.2 trillion (5.8tn) over the next decade with the top 1% of
American earners receiving almost half of the total benefit
and boosting spending power, according to an analysis by
the Tax Policy Center.
He also promoted a plan to lower the basic US corporate tax

to 15% from 35%. The French spirits company has been


focusing more on the most expensive spirits, epitomised by
a six-litre bottle of Louis XIII cognac that sells for 75,500.
The distiller has high hopes in the US for that blend, which is
made up of 40-to-100 year-old cognacs and is the companys
priciest offering, Ms Chapoulaud-Floquet said.
The US has yet to reach its full potential for spirits growth,
according to Remy Cointreau. Still, Ms Chapoulaud-Floquet
raised the possibility that the US may increase import taxes.
That could harm Remys business, especially because
cognac cannot be made anywhere outside of the designated
production area in France.
Lets be pragmatic, lets see what happens, she said. Are
American whiskies going to benefit from nationalism?
Maybe. Will Barbadian rum be treated differently? I dont
know. In the luxury world, for the time being, whats being
said is that what could happen will be favourable. Now, if I
were a tequila producer, I might be a little bit afraid, for sure.

Remy shares gained 1% yesterday and have now risen 14%


this year.
Lufthansa chief executive Carsten Spohr said Europes thirdlargest airline must hold its nerve and face down striking
pilots if its to deliver meaningful savings and survive as a
force in aviation.

Taking on the pilots is not about being tough, but about


the future of Lufthansa, Mr Spohr said in Berlin on the eve
of a second day of walkouts by cockpit crew. If the company
caves in to pay demands it has no chance of survival he
said.
Lufthansa has already canceled almost 1,900 flights, wiping
out 40% of the timetable and disrupting travel for more than
215,000 people.
Scrapped services will top 2,600 by the end of a third day of
action today, taking the number of passengers impacted to
315,000. Lufthansa has said each day of strikes has so far
cost about 10m, with Fridays action set to cost half that.
A long-running spat over wages, working conditions and the
expansion of Lufthansas low-cost Eurowings arm has
reached new levels of bitterness after Mr Spohr sought to
block the strike. When a Frankfurt labour court dismissed the
case and an appeal failed, the Vereinigung Cockpit union
retaliated by extending the protest by two more days.
The union is seeking a 20% raise for 2012 through 2017, or
3.7% a year. Lufthansa has offered 2.5%, or 0.38% annually,
through 2018.

Robust growth in employment continued, despite the


challenge to the economy of the uncertainty of Brexit and
despite the sharp fall of sterling this year.
Employment rose by 13,500, or 0.7%, in the quarter, for a
year-on-year gain of 57,500, or 2.9%, the same as in quarter
two.
The jobs growth was spread right across the economy, with
strong increases in the hospitality sector, construction, and
industry.
Employment has now risen for 16 consecutive quarters, and
is at its highest level since the end of 2008.
Meanwhile, Irelands jobless rate is down to 7.5%. This
compares to 9.2% a year ago and the peak of 15% in 2012.
Unemployment decreased by 25,000 in the past year to
178,000.
The strength of the labour market should soothe some
concerns about the Irish economy, which have raised their
heads as the growth of domestic spending weakened over
the course of this year.
Business investment declined in the first half of the year,
while retail spending has lost momentum since early
summer, with sales actually declining in the third quarter.
The pace of growth in new car sales has also eased, since

earlier in the year.


Activity indices for the manufacturing and service sectors
have fallen back since mid-year, in the aftermath of the vote
for Brexit in the UK and the further slump in sterling.
Tax receipts have lost some of the buoyancy evident earlier
in the year. Consumer confidence has also come off its highs
in recent months.
Some sectors of the economy, though, are seeing increased
growth, most notably construction.
Survey indicators for the sector point to strengthening
activity, with a pick-up, also, in house prices and mortgage
lending in the last two quarters.
While most data suggests that the Irish economy has lost
some of its momentum, the labour market figures indicate
that it is performing quite well.
CSO data shows that GDP grew by 4% in the first half of
2016, a slower pace than in recent years, but still a strong
performance.
Most forecasters expect that GDP growth will average 4% in
2016 and 3.5% next year. While the uncertainty around
Brexit remains a headwind for the Irish economy, there have
been favourable developments recently, in terms of the
near-term growth prospects for the economy.
Global growth has picked up momentum in recent months,
with better data from the US, eurozone, the UK, and
Japanese economies.
The UK economy, in particular, has held up much better than
expected, following the vote for Brexit. Meantime, the latest
indicators suggest that growth is accelerating in our two
other main export markets, the US and the eurozone.
More, expansionary fiscal policies are also coming to the
fore, most notably in the US, where a Donald Trump
presidency is expected to deliver a near-term fillip to the
economy via tax cuts and spending increases.
Meanwhile, the euro has lost considerable ground against
the dollar and sterling in the past month.
In particular, the euros recent fall from 90p to 85p against
sterling will offer some relief to hard-pressed Irish exporters
to the UK, who have had to deal with a sharp decline in the

pound this year.


Rising political risks in Europe could weigh on the euro in the
coming year, helping to put a floor under sterling, despite
the ongoing uncertainty surrounding Brexit.
There is also some speculation about a possible transitional
deal between the UK and EU, in the forthcoming exit
negotiations.
The UK could retain at least partial access to the single
market, but give some ground on immigration, thereby
avoiding a hard Brexit.
That would be good news for Ireland.
Thus, while one should not be complacent about the risks
facing the Irish economy in 2017 and beyond, there are still
reasonable grounds for optimism that it will be able to
withstand these challenges.
Oliver Mangan is chief economist at AIB

First fine of 4.5m for overcharging


tracker mortgage customers
Tuesday, November 29, 2016
Eamon Quinn

The Central Bank has fined Springboard Mortgages a unit


of Permanent TSB Group 4.5m for overcharging
customers for their tracker mortgages.

The sanction involves 220 mortgage accounts and has been


imposed for breaches under the Central Banks Consumer
Protection Codes.
The move is the first such sanction imposed on any lender
following the start of the Central Bank probe into tracker
rates and is something of a declaration of intent by the
regulator because the fine is relatively large in terms of the
number of accounts involved.
It suggests that when the Central Bank completes its
investigation that the separate fine for Permanent TSB,
which involves 1,152 customers, and fines for other banks
which are found to have breached the codes, will be
substantial.
The probe into the trackers will extend into next year. The
full amounts to be paid by the lenders under restitution
schemes to wronged customers will not be known for some
time.
Some other banks involved in the Central Bank investigation
have put aside tens of millions of euros to cover potential
fines and any restitution costs.
Other lenders involved in the Central Bank investigation
include AIB, Ulster Bank, Bank of Ireland, and KBC Bank.
In the Springboard case, the Central Bank said the lender

was involved in three suspected contraventions of its old


consumer code and two suspected contraventions of its
most recent code, updated four years ago.
That update meant the regulator was given greater powers
to increase fines. It said Springboard admitted breaking the
consumer codes and had agreed to the 4.5m penalty.
The Central Bank had widened its investigation into other
lenders following the probe into Permanent TSB.
In July last year, three senior managers at Permanent TSB
publicly apologised for the failures of the bank in not
informing customers about their mortgage rights.
Permanent TSB revealed at the time some customers had
either lost their homes or investment property because of
the actions by the bank.
The bank said it had found no evidence the failures were as
a result of a deliberate policy or that customers were missold products.
It said its failures included not informing the customer fully
and not applying the correct mortgage rates.
The group said that 1,372 customers were affected across
Permanent TSB and its Springboard unit because the bank
had wrongly informed them about their rights under their
contracts when they had requested changes to their
mortgages between 2006 and 2011.
http://www.irishexaminer.com/business/first-fine-of-45m-forovercharging-tracker-mortgage-customers-432781.html?
utm_source=link&utm_medium=click&utm_campaign=nextandprev

Process to repay 100m to Anglo clients


approved
Tuesday, November 29, 2016
Ann OLoughlin

The special liquidators of Irish Bank Resolution Corporation


have secured court orders approving a process to govern
their planned repayment of an estimated 100m in
overcharged interest by the former Anglo Irish Bank.

The orders were sought arising from a High Court finding of


2011 that the bank had overcharged a businessman, John
Morrissey, of Palmerston Rd, Ranelagh, some 143,676
interest on an overall sum of some 31.6m allegedly owed to
it.
The High Court found the overcharging arose from the
banks misinterpretation of the terms and conditions of loan
interest which were common to the vast majority of its
commercial loans.
The liquidators took legal advice following that judgment,
and were advised borrowers who were overcharged interest
were entitled to have claims corresponding to the
overcharged amount admitted in the banks special
liquidation.
It set up a remediation team to deal with the matter and it
has found 6,435 borrowers with 15,571 accounts were
affected. Based on the teams work to date, it is estimated
the potential total refund could be about 100m, Kieran
Wallace, joint special liquidator, said in court documents.
In those circumstances, Michael Collins, counsel for Mr
Wallace, applied at the Commercial Court yesterday to Mr
Justice Brian McGovern to approve directions for the
remediation process.

Those directions included approval for various assumptions


the court was told will have to be made given existing data
limitations, including assumptions where the likely refund
sums are sufficiently low such as not to merit time and
money being spent on the individual examination of files
http://www.irishexaminer.com/business/process-to-repay-100m-toanglo-clients-approved-432779.html?
utm_source=link&utm_medium=click&utm_campaign=nextandprev

Like many others, I have been thinking about and


discussing Miller (R (Miller) v Secretary of State for
Exiting the European Union [2016] EWHC 2768) with
colleagues today. This is the decision from the High Court
that the Government cannot trigger Article 50 in order to
begin the process of withdrawal from the EU without
getting Parliamentary authorisation first.
Put very shortly (and without wanting to get too far into
the details of the reasoning per se), this is because the
Court found that, as a constitutional statute and one that
created domestic rights and anchored EU rights, the
European Communities Act 1972 could not be turned to
naught by the Executive. The prerogative power had been
constrained by this Act, and it was not within the royal
prerogative to make even international treaty decisions
(such as withdrawing from the EU) that would disturb this
domestic statute. In other words, parliamentary
authorisation is required before Article 50 is triggered
and the formal process of leaving the EU can begin.
There are already, and will in the coming days, be lots of
analyses on the reasoning per se from a constitutional
law perspective (see, for example, the reflections of Paul
Daly, Kenneth Armstrong and Aileen McHarg). My
purpose here is to offer a few reflections more broadly on

the implications of the judgment, especially for those


more interested in its practical meaning for Brexit than in
its (unquestioned) broad constitutional significance per
se.
This will be appealed to the UK Supreme Court. Although
many lawyers are expressing confidence that the
Supreme Court will follow the High Court in finding that
parliamentary authorisation is required, there are some
important things to take note of., and especially that the
Supreme Court will likely find itself dealing with some
more complex devolution-related issues that are on
appeal after the Brexit decision in Northern Ireland last
week. This does not reduce the likelihood that the Court
would find parliamentary authorisation is required, but it
may have some implications for the mode of reasoning.
Todays decision approaches the question of the royal
prerogative, Article 50 and Brexit in very broad terms;
simply put, this is a big decision making big statements
about big questions of constitutional law. Courts almost
always have the capacity to narrow down their enquiry; to
construct questions as being discrete and particular, and
one might imagine that the Supreme Court might decide
to take a more minimalist approach to the questions this
case raises. In truth, I think this is unlikely for the simple
reasons that the case really does raise questions of wide
and deep constitutional significance, but some trimming
of the ways in which general constitutional principles are
outlined might be expected. This may not change the
outcome per se.

The Court made it very clear that parliamentary


authorisation is required, but did not determine what the
form of authorisation would be. One might interpret it as
a simple vote to authorise the triggering of Article 50, but
the more likely outcome is that a Bill to trigger Article 50
will be expected and then voted on by the Parliament.
In either case, the level of detail will be a matter of
political
decision-making, contestation, conflict and compromise.
One might expect that in order to authorise Article 50
being triggered, Parliament would expect a number of
things to be relatively clearly determined in advance.
These might include big and complex questions about
the status of Northern Ireland and Scotland, implications
on human rights in Northern Ireland (where particular
questions arise vis--vis the Good Friday/Belfast
Agreement), questions about the border, and the status
of EU citizens living in the UK. It might also involve some
seemingly smaller, but very significant, questions about
things like continuity in research and development
funding, key regulatory tasks currently undertaken by EU
agencies and so on. Of course, the more detailed the
proposition put to Parliament the more the requirement
of parliamentary authorisation will delay the triggering of
Article 50. I cannot foresee a situation in which,
realistically speaking, this is completed in much less than
12 months if the Supreme Court upholds the outcome of
this case.
This may well introduce some real complications into the

Brexit strategies of the UK. In order to give Parliament


some indication of what it might be authorising if it
authorises Article 50 being triggered the UK will,
presumably, need to have some kind of relatively
concrete (although of course not binding) discussions
with the European Union itself in order to get a sense of a
possible exit deal. In other words, the fairly rigid
proposition that there will be no firm negotiation until
Article 50 has been triggered should, for reasons of
practicality and pragmatism, be relaxed by those who
hold it within the European Union itself.
That said, whatever Parliament authorises will have to be
somewhat speculative: the final shape and detail of any
Brexit deal that might be agreed will be the subject of
extensive negotiation and, depending on its content,
might require unanimity by the other member states and,
in some cases (and very much depending on the content
and effects of the deal) that may even require national
referenda in some member states. In other words, there
is a real possibility that the UK might exit the EU without a
deal and in authorising the triggering of Article 50,
Parliament will need to take that into account. This will
not be a situation in which absolute certainty is likely to
be possible.
The Court today foundand it is widely agreed in any
case
that the Brexit referendum was merely advisory. It does
not require the UK to leave the EU. Some have latched
onto this to try to suggest that Parliament might

indefinitely block or veto Brexit. While this is a technical


legal possibility I consider (and I suspect most agree) that
it is highly unlikely and would almost certainly be
considered utterly illegitimate. This is not to say that
Parliament might not try to require a referendum on the
proposed Brexit deal (if any); this is a different matter.
A key premise of todays judgment is that an invocation of
Article 50 is irrevocable and will lead to withdrawal from
the EU. This was conceded by all parties for the purposes
of getting to the big constitutional questions of domestic
relevance. However, as a matter of EU law this is not by
any means clearly the case; there is certainly a possibility
that an Article 50 notice might be withdrawn and a state
might change its mind about leaving the EU. Ultimately,
whether an Article 50 notice can be revoked is a matter of
EU law and might be referred to the CJEU to decide.
However, even if there were such a reference the Court
might decide it cannot be decided in abstract terms (i.e. it
might say that Article 50 means what it means within a
member states constitutional system and that might vary
across the member states) and, effectively, decide not to
decide. The latter point was brought to me in
conversation by Alison Young.
There is, in my view, only a slim possibility that this will
trigger an early election in the Spring. An election at that
point, and pre Parliamentary authorisation for triggering
Article 50, would be perceived as a proxy Brexit2 and
there seems to be little if any government desire for this.
Authorisation will, as I said at 4 above, almost certainly

take a substantial amount of timeanything up to a year,


in my viewand so I would be very surprised if there an
election in 2017. Post authorisation, however, there might
be a case for an election that would give the new
government a strong mandate in terms of negotiating the
exit and any possible Brexit Deal, and I would not be
overly surprised to see a general election being called for
the spring of 2018.
For people in Birmingham, we will have a
roundtable/Q&A on the case next Tuesday in Lecture
Theatre 1 of Birmingham Law School at 6pm. Plans are
still being finalised but speakers confirmed so far are me,
Adrian Hunt, Natasa Mavronicola and Ben Warwick. More
TBC; all are welcome.
https://www.judiciary.gov.uk/wp-content/uploads/2016/11/summary-rmiller-v-secretary-of-state-for-exiting-the-eu-20161103.pdf

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND


QUEENS BENCH DIVISION (JUDICIAL REVIEW)
________
McCords (Raymond) Application [2016] NIQB 85

IN THE MATTER OF AN APPLICATION BY RAYMOND McCORD


FOR LEAVE TO APPLY FOR JUDICIAL REVIEW
AND IN THE MATTER OF ARTICLE 50 OF THE TREATY OF THE
EUROPEAN UNION
AND IN THE MATTER OF AN APPLICATION FOR LEAVE TO
APPLY FOR JUDICIAL REVIEW BY
(1) STEVEN AGNEW
(2) COLUM EASTWOOD
(3) DAVID FORD

(4)
(5)
(6)
(7)
(8)
(9)

JOHN ODOWD
DESSIE DONNELLY
DAWN PURVIS
MONICA WILSON
THE COMMITTEE ON THE ADMINISTRATION OF JUSTICE
THE HUMAN RIGHTS CONSORTIUM

AND
(1) HER MAJESTYS GOVERNMENT
(2) THE SECRETARY OF STATE FOR NORTHERN
IRELAND
(3) THE SECRETARY OF STATE FOR EXITING THE
EUROPEAN UNION
Respondents
________
MAGUIRE J
Introduction
[1]
The court has before it two applications for judicial
review which substantially relate to the same subject matter
the intention of the Government, following the result of the
referendum held in the United Kingdom on 23 June 2016 and
in the light of the result, where a majority of those who
voted, voted in favour of the United Kingdom leaving the EU
to use the Royal Prerogative to invoke Article 50 TEU to
trigger the process by which withdrawal from the EU is
effected.
[2]
The first application has been made by Raymond
McCord, who is a man of 62 years of age. He describes
himself as a British and European citizen and as a resident of
Northern Ireland. He has, as his Order 53 relates, acted as a
victims campaigner following the murder of his son,
Raymond, by Loyalist paramilitaries on 9 November 1997.
[3]
The second application has been made by multiple
applicants and will be referred to herein as Agnew and

Others. The majority of the applicants are politicians,


including several who are members of the Northern Ireland
Assembly. In addition, there are applicants who have close
associations with the voluntary and community sector in
Northern Ireland. This group of applicants also includes
concerned human rights organisations: the Committee on
the Administration of Justice (an independent human rights
organisation with a cross community membership in
Northern Ireland) and the Human Rights Consortium (a
charity with over 160 member organisations from across all
communities in Northern Ireland).
[4]
The intended respondents are variously described in
the Order 53 Statements. In essence, the applications are
directed at Her Majestys Government for the United
Kingdom. A number of Secretaries of State are expressly
referred to: in particular, the Secretary of State for Exiting
the European Union and the Secretary of State for Northern
Ireland.
[5]
As, in the view of the court, the applications raised
devolution issues for the purpose of Order 120 of the Rules
of the Court of Judicature, the court served devolution
notices on the Attorney General, the Attorney General for
Northern Ireland and others. In response, the Attorney
General for Northern Ireland entered an appearance and has
provided to the court written and oral representations in
respect of the devolution issues.
[6]
The applications for judicial review have been
considered together. Because of their urgency, the court has
dealt with them under an expedited timetable. The hearing
before the court has taken the form of a rolled up hearing so
that the court technically has before it both the issue of
leave to apply for judicial review and the issue of appropriate
relief in the event that leave to apply for judicial review is
granted.
[7]
Mr Ronan Lavery QC and Mr Conan Fegan BL
appeared for Mr McCord. Mr David Scoffield QC and Mr

Christopher McCrudden BL and Mr Gordon Anthony BL


appeared for the applicants in Agnew and Others. Mr Tony
McGleenan QC and Mr Paul McLaughlin BL appeared for the
intended respondents in each case. As already noted, the
Attorney General for Northern Ireland, Mr John Larkin QC and
Miss Leona Gillen, entered an appearance and made written
and oral submissions. The court is grateful to all counsel for
their submissions and for their assistance in enabling the
proceedings to be brought to hearing quickly.
Case Management
[8]
Apart from the issue of the urgency of these
applications, a matter which the court has had to consider is
the relationship these proceedings should bear to similar
proceedings which, at the time these applications were
brought, were already underway in the jurisdiction of
England and Wales. The English proceedings, R (Miller) and
others v Secretary of State for Exiting the European Union,
also is concerned with the means by which Article 50 TEU is
to be triggered and the question of the displacement of
prerogative executive power by statute. In that litigation, at
centre stage is the question of whether the statutory
provisions which have the intention of providing for EU law in
the United Kingdom limit the operation of prerogative power,
the archetypal example being the European Communities
Act 1972. While this issue also has been raised in the
challenges before this court, this court also has before it a
range of specifically Northern Irish constitutional provisions
which are said to have the same or a similar impact on the
means of triggering Article 50.
[9]
In view of the overlap between the respective
challenges the court, on the application of the intended
respondents, sought to avoid these proceedings simply
duplicating those in England and Wales. Accordingly the
court has stayed the consideration of the central issues
which the English courts will deal with. Instead, these
proceedings have sought to concentrate on the impact of
Northern Ireland constitutional provisions in respect of notice

under Article 50 and it is with this subject that this judgment


is concerned. With the co-operation of the parties, the
grounds of challenge which will be dealt with in Millar and
others (in particular, grounds 3(b) and (c) in McCord and
ground 4(2)(a)(i) in Agnew and others) have been held over
pending the outcome of the English litigation.
The background to the applications
[10]
It is unnecessary to go into great detail about the
background to these challenges. It will suffice to say that
the issue of withdrawal by the United Kingdom from the EU
has, for some time, been a feature of the political agenda. It
was not, however, until relatively recently that the
Government at Westminster determined that there should be
a referendum held on the question of whether the United
Kingdom should remain a member of the EU. The
Governments intention to hold a referendum on EU
membership was announced in January 2013.
[11]
In 2015 the European Union Referendum Act was
passed. This made provision for such a referendum. Section
1(4) set out the question which was to appear on the ballot
paper as follows:
Should the United Kingdom remain a member of the
European Union or leave the European Union?
The alternative answers to the above question appearing on
the ballot papers were (as per Section 1(5)):
Remain a member of the European Union
Leave the European Union.
[12]
The 2015 Act also provided for the publication of a
report which contained a statement in relation to the
outcome of negotiations relating to the United Kingdoms
request for reforms to address concerns over the United
Kingdoms membership of the EU and the opinion of the
Government of the United Kingdom on what had been

agreed (see Section 6(1)). Other information also had to be


published (see Section 7).
[13]
Part VII of the Political Parties, Elections and
Referendums Act 2000 applied to the referendum (see:
Section 3 of the 2015 Act). This defined the term
referendum as a referendum or other poll held, in
pursuance of any provision made by or under an Act of
Parliament, on one or more questions specified in or in
accordance with any such provision.
[14]
The referendum took place on 23 June 2016. Its
result was that 51.89% of the valid votes were cast in the
United Kingdom in favour of leaving the European Union
while 48.11% were in favour of remaining. In Northern
Ireland, 55.8% of the valid votes were in favour of remaining
in the European Union, while 44.2% were in favour of
leaving.
[15]
On 24 June 2016, in a public statement, the Prime
Minister (David Cameron MP) accepted the result of the
referendum and indicated that it would be for a new Prime
Minister to decide when to trigger Article 50 TEU.
[16]
Pre-action correspondence between each of the
applicants and the Crown Solicitors Office began in July
2016. In the McCord case the initial letter of claim was
dated 27 July 2016 and was responded to on 5 August 2016.
In the case of Agnew and others the initial correspondence
was dated 22 July 2016 and this also was responded to on 5
August 2016. In both cases, the contention was advanced
that Article 50 could not be triggered by the use of
prerogative power and that legislation (or other mandate
from Parliament) was required for this purpose. In each
case, the Governments response was that Parliaments
express authorisation was not needed to commence the
Article 50 process.
[17]
On 11 August 2016 the McCord application for leave
to apply for judicial review was filed. This was followed up

within days on 19 August 2016 by the application for


judicial review in the name of Stephen Agnew and others
being filed.
The grounds of judicial review
[18]
There are substantial areas of commonality between
the two applications. But there are also some areas of
material difference. Each Order 53 statement has been the
subject of amendments since originally being filed. In the
course of the provision of skeleton arguments to the court
and in the development of the arguments orally, a clearer
picture of the main grounds of challenge has emerged. It
appears to the court that the following broad description can
be provided in relation to the grounds of challenge.
[19]

The principal grounds are:

(a)
The contention that the prerogative power cannot be
exercised for the purpose of notification in accordance with
Article 50(2) TEU and the allied contention that this is
because it has been displaced by the Northern Ireland Act
1998 read along with the Belfast Agreement and the BritishIrish Agreement and other constitutional provisions. In these
circumstances it is contended that an Act of Parliament is
required to trigger Article 50(2), though in the case of
McCord this argument is taken a step further, as appears
hereafter. This issue will be referred to hereafter as Issue
1.
(b)
The contention that if an Act of Parliament is
required, there is a requirement for a Legislative Consent
Motion to be granted by the Northern Ireland Assembly
before such legislation could be passed authorising
notification in accordance with Article 50(2) TEU. This issue
will be referred to hereafter as Issue 2.
(c)
The contention that there are a variety of public law
restraints on any exercise of prerogative power in any event.
These include issues about the requirement to take all

relevant considerations into account and not to give


excessive weight to the referendum result. This issue will be
referred to hereafter as Issue 3.
(d)
The contention that there has been a failure by the
Northern Ireland Office to comply, prior to notification being
given under Article 50, with the terms of section 75 of the
Northern Ireland Act 1998 and with the terms of its own
equality scheme. This issue will hereafter be referred to as
Issue 4.
(e)
The contention in the McCord case that Article 50
TEU cannot be triggered without the consent of the people of
Northern Ireland. Moreover it is asserted that the Good
Friday Agreement has created a substantive legitimate
expectation that there would be no change in the
constitutional status of Northern Ireland without the consent
of the people of Northern Ireland. This issue will be referred
to hereafter as Issue 5.
Article 50 TEU
[20]
The above is the key provision which is at the centre
of these proceedings. This provision, dealing with
withdrawal of a Member State from the EU, appeared for the
first time in 2008 following the negotiation of the Lisbon
Treaty. Until that time, there had been no express provision,
the court has been told, dealing with this subject. In the
absence of same, the matter fell to be regulated by the
Vienna Convention on the Law of Treaties.
[21]
The terms of Article 50, are largely self-explanatory,
and the court will therefore record the provision in full below:
Article 50
1.
Any Member State may decide to withdraw from the
Union in accordance with its own constitutional
requirements.

2.
A Member State which decides to withdraw shall
notify the European Council of its intention. In the light of the
guidelines provided by the European Council, the Union shall
negotiate and conclude an agreement with that State,
setting out the arrangements for its withdrawal, taking
account of the framework for its future relationship with the
Union. That agreement shall be negotiated in accordance
with Article 218(3) of the Treaty on the Functioning of the
European Union. It shall be concluded on behalf of the Union
by the Council, acting by a qualified majority, after obtaining
the consent of the European Parliament.
3.
The Treaties shall cease to apply to the State in
question from the date of entry into force of the withdrawal
agreement or, failing that, two years after the notification
referred to in paragraph 2, unless the European Council, in
agreement with the Member State concerned, unanimously
decides to extend this period.
4.
For the purposes of paragraphs 2 and 3, the member
of the European Council or of the Council representing the
withdrawing Member State shall not participate in the
discussions of the European Council or Council or in
decisions concerning it.
A qualified majority shall be defined in accordance with
Article 238(3)(b) of the Treaty on the Functioning of the
European Union.
5.
If a State which has withdrawn from the Union asks
to rejoin, its request shall be subject to the procedure
referred to in Article 49.
[22]
These judicial review applications are concerned with
notification of intention by a Member State which decides to
withdraw, here the United Kingdom. This involves the
European Council being advised of that intention. This, in
the scheme of the provision, initiates a process by which
there is a negotiation with a view to an agreement being
concluded with the withdrawing State. This agreement will

set out the arrangements for withdrawal, taking account of


the framework for the withdrawing States further
relationship with the Union. The agreement will be between
the withdrawing State and the Council. The consent of the
European Parliament has to be obtained in respect of it prior
to it being concluded. There is then a timetable which
comes into operation in accordance with Article 50(3). This
stipulates when the Treaties shall cease to apply to the
withdrawing State. This may be (a) from the date of entry
into force of the withdrawal agreement, or (b) failing that,
two years after the notification unless the European Council,
in agreement with the Member State concerned,
unanimously decides to extend the period.
[23]
It appears to the court that a feature of the
arrangements is that once notification by the withdrawing
State is given, save for some exceptional circumstance,
which is not expressly provided for in the provisions, the
parties, the withdrawing State and the Union are on a set
course which leads to the Treaties ceasing to apply to the
withdrawing State.
[24]
The reference in Article 50(1) to withdrawal being in
accordance with its own constitutional requirements
appears to be a reference to the withdrawing States own
constitutional requirements and not a reference to the
requirements of EU law. This was the view of the Court of
Appeal in England and Wales in Shindler v Chancellor of the
Duchy of Lancaster [2016] EWCA Civ. 469 (see, in particular
paragraph [16]) and the contrary has not been argued in this
court.
Salient features of the Northern Ireland constitutional
landscape
[25]
It is necessary in these cases to provide some
contextual information about how the constitutional
arrangements in Northern Ireland operate after the advent of
the Good Friday Agreement. It is also necessary to cite in
this judgment a substantial number of legal and other

provisions which relate to the operation of the governmental


institutions in Northern Ireland. This is of importance
because it is contended for the purpose of Issue 1 that
statutory provisions, and other materials which aid their
interpretation, represent a corpus of law which has the effect
of excluding the use of prerogative power for the purpose of
triggering Article 50(2). In order to assess this argument,
the precise terms of many of the provisions being relied on
by the applicants will need to be set out.
The Good Friday Agreement
[26]
The Good Friday Agreement, officially referred to as
the Belfast Agreement, was the product of extensive multiparty negotiations. It was published in April 1998 in a
command paper presented to Parliament. It contained a
range of elements but, most importantly, it provided for the
establishment of democratic institutions in Northern Ireland
(Strand 1); the establishment of a North/South Ministerial
Council (Strand 2); and the operation of a British Irish
Council and British-Irish Intergovernmental Conference
(Strand 3).
[27]
In the Declaration of Support, with which the
Agreement begins, the participants in the multi-party
negotiations dedicate themselves to the achievement of
reconciliation, tolerance and mutual trust and to the
protection and vindication of human rights (paragraph 2).
Likewise the participants commit themselves to
partnership, equality and mutual respect (paragraph 3). At
paragraph 5 it is stated that:
It is accepted that all of the institutional and constitutional
arrangements - an Assembly in Northern Ireland, a
North/South Ministerial Council, implementation bodies, a
British-Irish Council and a British-Irish Intergovernmental
Conference and any amendments to British Acts of
Parliament and the Constitution of Ireland - are interlocking
and interdependent and that in particular the functioning of
the Assembly and the North/South Council are so closely

inter-related that the success of each depends on that of the


other.
[28]
Under the heading Constitutional Issues the
Agreement referred to a new British-Irish Agreement
replacing the Anglo-Irish Agreement. In such a new
Agreement, there would be recognition of the legitimacy of
whatever choice is freely exercised by a majority of people in
Northern Ireland with regard to its status i.e. whether they
prefer to continue to support the Union with Great Britain or
a sovereign United Ireland. The Agreement would also
affirm that, if in the future, the people of the island of
Ireland, exercise their right of self-determination to bring
about a United Ireland, it will be a binding obligation on both
Governments to introduce and support in their respective
Parliaments legislation to give effect to that wish. Effect to
the above was given in British legislation: of which see below
Section 1 of the Northern Ireland Act 1998. Changes to the
Irish Constitution were also to be made.
[29]
As regards Strand 1 provision was made for a
democratically elected Assembly in Northern Ireland. This
was to be capable of exercising executive and legislative
powers, subject to safeguards which included arrangements
to ensure that all sections of the community could
participate and work together successfully in the operation
of the new institutions and arrangements to ensure that key
decisions were taken on a cross-community basis. Special
provision was to be made for parallel consent to be achieved
on some issues and weighed majorities on some other
issues.
[30]
The operation of the Assembly was provided for at
paragraphs 6-13 of Strand 1. In respect of executive
authority, this was to be discharged on behalf of the
Assembly by a First Minister and Deputy First Minister and up
to ten Ministers with departmental responsibilities. The
former were to be jointly elected into office by the Assembly
whereas the Ministers would be allocated to parties on the
basis of the dHondt system by reference to the number of

seats each party had in the Assembly. The First Minister and
Deputy First Minister, inter alia, had the duty of co-ordinating
the work of the Executive Committee. All Ministers,
including the First Minister and Deputy First Minister, were
obliged to affirm the terms of a Pledge of Office.
[31]
The Assembly was, in accordance with paragraphs
26-29, to be given authority to pass primary legislation for
Northern Ireland in devolved areas.
[32]
The first mention of the EU in Strand 1 is paragraph
31 where it is stated that:
Terms will be agreed between appropriate Assembly
representatives and the Government of the United Kingdom
to ensure effective coordination and input by Ministers to
national policy-making, including on EU issues.
[33]
A continuing role for Secretary of State was provided
for at paragraph 32 where it was stated that he/she was to
be responsible for non-devolved matters; was to represent
Northern Ireland interests in the United Kingdom Cabinet;
and was to lay legislation before Westminster on reserved
matters.
[34]
Various functions of the Westminster Parliament were
set out at paragraph 33. These should be viewed against
the backdrop that Parliaments powers to legislate for
Northern Ireland would remain unaffected. Westminster, in
particular, was to legislate for non-devolved issues and was
to ensure that the United Kingdoms international obligations
were met in respect of Northern Ireland. Westminster was
also to be the forum for parliamentary scrutiny of the
responsibilities of the Secretary of State.
[35]
Strand 2 of the Agreement dealt with the
North/South Ministerial Council. It was intended to bring
together those with executive responsibilities in Northern
Ireland and the Irish Government. The object was to
develop consultation, co-operation and action within the

island of Ireland on matters of mutual interest within the


competence of the Administrations. The Council was to
meet in different formats: plenary, specific sectoral formats
and an appropriate format to consider institutional or crosssectoral matters, including in relation to the EU, and to
resolve disagreement. What was envisaged was the
exchange of information and discussion and consultation
with a view to co-operation on matters of mutual interest
within the competence of both Administrations, north and
south. Best endeavours were to be used to reach
agreements on the adoption of common policies in areas
where there was a mutual cross-border and all island benefit
within the competence of both Administrations. It was also
provided that the Ministerial Council could take decisions by
agreement on policies and action on an all island and crossborder level. Each side, however, was to remain accountable
to the Assembly and Oireachtas respectively. Provision was
to be made for appropriate mechanisms for co-operation in
each separate jurisdiction and for co-operation which would
take place through agreed implementation bodies on a
cross-border or all island level. Such implementation bodies
were to have a clear operational remit and would implement
on an all island and cross-border basis policies agreed in the
Council. The Council was to be supported by a standing joint
secretariat. At paragraph 17 of this section of the
Agreement, reference was made to the Council considering
the European Union dimension of relevant matters including
the implementation of EU policies and programmes and
proposals under consideration in the EU framework.
Arrangements were to be made to ensure that the views of
the Council were taken into account and represented
appropriately at relevant EU meetings.
[36]
In an annex to this section of the Agreement the
following areas for north-south co-operation and
implementation are stated as ones which may be
considered:
1. Agriculture - animal and plant health.
2. Education - teacher qualifications and exchanges.

3. Transport - strategic transport planning.


4. Environment - environmental protection, pollution, water
quality, and waste management.
5. Waterways - inland waterways.
6. Social Security/Social Welfare - entitlements of crossborder workers and fraud control.
7. Tourism - promotion, marketing, research, and product
development.
8. Relevant EU Programmes such as SPPR, INTERREG, Leader
II and their successors.
9. Inland Fisheries.
10. Aquaculture and marine matters.
11. Health: accident and emergency services and other
related cross border issues.
12. Urban and rural development.
Others to be considered by the shadow North/ South
Council.
[37]
Strand 3 of the Agreement relates to the British-Irish
Council. Its object was to promote the harmonious and
mutually beneficial development of the totality of
relationships among the peoples of these islands.
Membership was to comprise of representatives of the
British and Irish Governments, devolved institutions in
Northern Ireland, Scotland and Wales, when established and,
if appropriate, elsewhere in the United Kingdom together
with representatives of the Isle of Man and the Channel
Islands. As with the North/South Council, the British/Irish
Council was to operate in different formats and was to
endeavour to reach agreement by co-operation on matters
of mutual interest within the competence of the relevant
administrations. Suitable issues for early discussion could, it
was noted, include transport links, agricultural issues,
environmental issues, cultural issues, health issues,
educational issues and approaches to EU issues.
[38]
The British/Irish Council was normally to operate by
consensus.
[39]

A further institution provided for in Strand 3 was the

new British-Irish Intergovernmental Conference dealing with


the totality of relationships. This was to subsume earlier
similar institutions. Its object was to promote bilateral cooperation at all levels in matters of mutual interest within
the competence of both Governments. All decisions were to
be made by agreement between both Governments without
any derogation from the sovereignty of either Government.
There were to be regular meetings of the conference
concerned with non-devolved Northern Ireland matters.
Provision was made for members of the Northern Ireland
Executive being involved in meetings of the Conference and
in reviews of the working of the machinery and institutions
which had been established.
[40]
Apart from the establishment of the institutions
already referred to, the Good Friday Agreement also referred
to proposals in specific subject areas, which it is not
necessary to summarise here. There are substantial sections
of the Agreement dealing with Rights, Safeguards and
Equality of Opportunity featuring the incorporation of the
European Convention on Human Rights into Northern Ireland
law; a statutory obligation on public authorities in Northern
Ireland to carry out their functions with due regard to the
need to promote equality of opportunities; the establishment
of a Human Rights Commission and other initiatives. Equally
important topics which were afforded attention in the
agreement included such matters as security,
decommissioning of arms, policing and justice, and
prisoners.
[41]
As a result of the Good Friday Agreement a new
British-Irish Agreement was established dated the same date
as the Agreement itself. It does not require specific
discussion for the purpose of this judgment.
The Northern Ireland Act 1998
[42]
The Northern Ireland Act 1998 was enacted to
implement the Good Friday Agreement. Its long title states
that it is an Act to make provision for the Government of

Northern Ireland for the purpose of implementing the


Agreement reached at multi-party talks on Northern Ireland
set out in Command Paper 3883.
[43]
The 1998 Act, while not setting out all of the
constitutional provisions applicable to Northern Ireland, has
been described as in effect a constitution (see Lord
Bingham in Robinson v Secretary of State for Northern
Ireland and Others [2002] NI 390 at 398 paragraph [11]). In
Lord Binghams view, in accordance with the above, its
provisions should, consistently with the language used, be
interpreted generously and purposively, bearing in mind the
values which the constitutional provisions are intended to
embody (ibid). This was also the view of Lord Hoffman in
the same case. At paragraph [25] in his speech, he noted
that the Act was passed to give effect to the Belfast
Agreement concluded on Good Friday 1998. As he put it:
This Agreement was the product of multi-party negotiations
to devise constitutional arrangements for a fresh start in
Northern Ireland. The Act was a constitution for Northern
Ireland framed to create a continuing form of Government
against the background and history of the territory and the
principles agreed in Belfast.
[44]
No party before the court contested these
descriptions and the court will proceed on the basis that it is
correct to approach issues of the interpretation of the 1998
Act in the way described.
[45]
The language used in the Act, nonetheless, remains
important and it is therefore necessary to set out some of
the key provisions below.
[46]
The court begins with Section 1 of the Act which
deals with the status of Northern Ireland. It reads:
(1)
It is hereby declared that Northern Ireland in its
entirety remains part of the United Kingdom and shall not
cease to be so without the consent of a majority of the
people of Northern Ireland voting in a poll held for the

purposes of this section in accordance with Schedule 1.


(2)
But if the wish expressed by a majority in such a poll
is that Northern Ireland should cease to be part of the United
Kingdom and form part of a United Ireland, the Secretary of
State shall lay before Parliament such proposals to give
effect to that wish as may be agreed between Her Majestys
Government in the United Kingdom and the Government of
Ireland.
The detailed provisions relating to a poll for the purposes of
Section 1 are found at Schedule 1 to the Act.
[47]
Section 4 of the Act deals with transferred, excepted
and reserved matters. A transferred matter is any matter
which is not either an excepted or reserved matter. It is
therefore a residual category. Excepted matters are matters
falling within a description specified in Schedule 2 whereas
reserved matters are any matter falling within a description
specified in Schedule 3.
[48]
Schedule 2 paragraph 3 is relevant to these
applications. It provides a description of certain excepted
matters as follows:
International relations, including relations with territories
outside the United Kingdom, the European Communities
(and their institutions) and other international organisations
but not
(c)
observing and implementing international
obligations, obligations under the Human Rights Convention
and obligations under Community law.
[49]
Section 5 of the Act deals with Acts of the Northern
Ireland Assembly. The starting point is that subject to
Sections 6 to 8, the Assembly may make laws, to be known
as Acts. However, a notable provision is found at Section
5(6) of the Act. It states:

(6)
This section does not affect the power of the
Parliament of the United Kingdom to make laws for Northern
Ireland
[50]
Section 6 relates to the subject of legislative
competence. Under Section 6(1) a provision of an Act is not
law if it is outside the legislative competence of the
Assembly. Section 6(2) explains that a provision is outside
that competence if any of the following paragraphs apply.
There are then stated six outside competence paragraphs
including:
[If the provision] deals with an excepted matter and is not
ancillary to other provisions (whether in the Act or previously
enacted) dealing with reserved or transferred matters.

[If the provision] is incompatible with Community law.


[51]
Section 7 entrenches certain enactments from
modification by an Act of the Assembly or subordinate
legislation made, confirmed or approved by a Minister or
Northern Ireland department. Of relevance to this case is:
(a)

The European Communities Act 1972.

[52]
Section 7(2) goes on to say that sub-section (1) does
not prevent an Act of the Assembly or subordinate legislation
modifying certain particular provisions in the European
Communities Act 1972. These provisions are of a minor
nature.
[53]
Section 8 of the Act refers to the Secretary of States
consent being required in relation to Bill which contains
(a)
a provision which deals with an excepted matter and
is ancillary to other provisions dealing with reserved or
transferred matters; or
(b)
[54]

a provision which deals with a reserved matter.


Under Section 11, the Attorney General for Northern

Ireland may refer to the Supreme Court a question of


whether a provision of a Bill would be within the legislative
competence of the Assembly.
[55]
Section 12 relates to the particular situation where a
reference has been made to the Supreme Court under
Section 11 but where the Supreme Court has referred, for a
preliminary ruling, a matter arising to the European Court of
Justice.
[56]
The next provision which the court draws attention to
is Section 24. Section 24(1) establishes that:
A Minister or Northern Ireland Department has no power to
make, confirm or approve any subordinate legislation, or to
do any act, so far as the legislation or act
(b)

Is incompatible with European Union law.

[57]
Section 27 deals with quotas for the purpose of
international obligations. It provides:
(1)
A Minister of the Crown may make an order
containing provision such as is specified in subsection
(2)
where
(a)
An international obligation or an obligation under
Community law is an obligation to achieve a result defined
by reference to a quantity (whether expressed as an amount,
proportion or ratio or otherwise); and
(b)
the quantity relates to the United Kingdom (or to an
area including the United Kingdom or to an area consisting of
a part of the United Kingdom which is or includes the whole
or part of Northern Ireland).
(2)
The provision referred to in subsection (1) is
provision for the achievement by a Minister or Northern
Ireland department (in the exercise of his or its functions) of
so much of the result to be achieved under the international
obligation or obligation under Community law as is specified

in the order.
[58]
Part V of the Act is that part dealing with the NorthSouth Ministerial Council and the British-Irish Council. Of
particular interest is Section 55 which is concerned with the
subject of implementation bodies. Such a body is a body
for implementing, on the basis mentioned in paragraph 11 of
Strand 2 of the Belfast Agreement, policies agreed in the
North-South Ministerial Council (see Section 55(3)).
Paragraph 11 deals with policies agreed in the Council for
implementation on an all-island and cross border basis
[59]
Section 98 is an interpretation provision. It contains
a definition of community law for the purpose of the Act. It
means:
(a)
all rights, powers, liabilities, obligations and
restrictions created or arising by or under the Community
Treaties; and
(b)
all remedies and procedures provided for by or under
those Treaties.
The North/South Co-operation (Implementation Bodies)
(Northern Ireland) Order 1999
[60]
Under the proposals for the North/South Ministerial
Council the prospect of implementation bodies coming into
existence was plainly recognised. Those bodies could be on
a cross border or all island basis. A further Agreement was
made between the United Kingdom and the Government of
Ireland in respect of this matter on 8 March 1999. This
agreement provided for the establishment of implementation
bodies and the above Order was made by the Secretary of
State legally to provide for them.
[61]
The Order envisages and establishes a number of
such bodies. The body of most relevance to these
proceedings is called the Special EU Programmes Body. Its
functions were provided for at Part 4 of Annex 1 of the

Agreement. It was described in the following way:


A body with the following functions:
Until the conclusion of the current Community Initiatives
the central secretariat, monitoring, research, evaluation,
technical assistance and development roles currently
exercised jointly in respect of INTERREG and PEACE by the
Department of Finance and the Department of Finance and
Personnel.
administration of certain sectoral sub-programmes under
INTERREG and PEACE (interest rate subsidy and cross border
co-operation between public bodies)
In relation to post 1999 Structural Funds
advising North/South Ministerial Council and the two
Departments of Finance on negotiation with the EU
Commission of post 1999 Community Initiatives and of
Common Chapter
preparing for the approval of the two administrations in
the Council and in close consultation with the two
Departments of Finance and other relevant Departments,
detailed programme proposals under the new Community
Initiatives (likely to be INTERREG III, LEADER III and EQUAL,
and possibly a successor to PEACE)
central secretariat, monitoring, research, evaluation
technical assistance and development roles in respect of
these initiatives
grant making and other managerial functions in respect
of INTERREG III and of north/south elements of programmes
under other initiatives, within the framework of the relevant
overall policies of North and South respectively, and subject
to the expenditure allocations and specific programme
parameters agreed between the two administrations and
with the EU Commission;

monitoring and promoting implementation of the


Common Chapter, which would have a budgetary allocation
[62]
The above functions were to be exercised in
accordance with Part 4 of Annex 2 which dealt with the
current Community Initiatives and also post-1999 structural
funds.
[63]
The court does not doubt that the intention of both
governments was that the approach taken would apply to
future equivalent or substitute Community Initiatives. That
this is so can be seen from the terms of letters exchanged
between the respective governments subsequently. For an
example, see the Schedule to the North/South Co-operation
(Implementation Bodies) (Amendment) (Northern Ireland)
Order 2007.
[64]
There is nothing, however, in any of the instruments
which entrenches the arrangements in respect of
Implementation Bodies. The instruments can be viewed as
being consistent with the existence of an implicit assumption
that membership of the EU, on the part of both countries,
would continue.
Issue 1
[65]
The central issue in these applications relates to the
legal authority upon which Notice is to be given by the
United Kingdom Government to the European Council for the
purpose of Article 50(2) TEU. As the opening sentence of
Article 50(2) indicates:
A member state which decides to withdraw shall notify the
European Council of its intention.
This notice triggers the arrangements provided for in the
remainder of Article 50.
[66]
It is the governments view that notification is
properly to be viewed as an executive action taken under

prerogative power. However, the applicants dispute this.


They argue that prerogative power cannot be used to effect
notification because that power has been displaced by
statute. In these circumstances, they submit, notification
must be effected by a process which involves authority for
this action being given by Act of Parliament. The issue,
therefore, it can be said, is concerned with the legal
underpinning of any such notification. The reason why the
applicants say that prerogative power cannot be deployed
for this purpose is that it has been displaced by reason of the
terms of the Northern Ireland Act 1998 when interpreted, as
they say they must be, in the light of the Good Friday
Agreement and consequential arrangements.
[67]
It is implicit in the applicants argument that were it
not for the displacement of the prerogative in the way
described, the use of the prerogative for present purposes
would be unobjectionable. That this is correct is consistent
with a range of legal authorities such as Council of Civil
Service Unions v Minister for the Civil Service [1984] 3 WLR
1174 and Blackburn v Attorney General [1971] 2 AER 1380.
The court will therefore regard this position as an
appropriate starting point.
[68]
Those before the court all accepted that there are
circumstances in which prerogative power must give way to
statutory power so that only the latter can be lawfully used
for a particular purpose. The argument before the court was
not about the principle of law involved but about how the
principle is to operate in this case.
[69]
It seems to the court that two central questions
arise. Firstly, the court must seek to ascertain what test is to
be applied when determining the issue. Secondly, the court
must then apply the test to the alleged displacing provisions.
[70]
As regards the test to be applied, the court inevitably
must consider the approaches to this issue which can be
discerned from the cases in which this principle of law has
been discussed. In this regard the court has been directed

by the parties to the key authorities in this area, beginning


with the reminder from the Case of Proclamations (1611) 12
Co Rep 74 that the King hath no prerogative, but that which
the law of the land allows him.
[71]
The most significant of the cases cited to the court is
that of Attorney General v De Keysers Royal Hotels Ltd
[1920] AC 508. As a senior judge later remarked the
relevant principles upon which the courts have to determine
whether prerogative power has been fettered by statute
were exhaustively considered by the House of Lords in De
Keyser (see Roskill LJ, as he then was, in Laker Airways
Limited v Department of Trade [1997] 1 QB 643 at 719(e)).
De Keyser concerned the taking over of a hotel for housing
administrative staff of the flying Corps during the First World
War. An issue subsequently arose as to the payment of
compensation for the use of the hotel. This depended on
whether the takingover had been under statute or by
reason of prerogative power. The House of Lords decided
that the taking-over was under statutory power with the
result that compensation was payable. While the statutory
scheme existed, the prerogative had been superseded.
[72]
It is worthwhile to set out below the key passages in
the speeches of their Lordships in De Keyser. Lord Dunedin
stated at page 526:
The prerogative is defined by a learned constitutional writer
as the residue of discretionary or arbitrary authority which
at any given time is legally left in the hands of the Crown.
In as much as the Crown is a party to every Act of Parliament
it is logical enough to consider that when the Act deals with
something which before the Act could be effected by the
prerogative, and specially empowers the Crown to do the
same thing, but subject to conditions, the Crown assents to
that, and by that Act, to the prerogative being curtailed.
Lord Atkinson at page 539 stated:
It is quite obvious that it would be useless and meaningless

for the legislature to impose restrictions and limitations


upon, and attach conditions to, the exercise by the Crown of
the powers conferred by a statute, if the Crown were free at
its pleasure to disregard these provisions, and by virtue of its
prerogative do the very thing the statutes empowered it to
do. One cannot in the construction of a statute attribute to
the legislature (in the absence of compelling words) an
intention so absurd. It was suggested that when a statute is
passed empowering the Crown to do a certain thing which it
might heretofore have done by virtue of the prerogative, the
prerogative is merged in the statute. I confess I do not think
the word merge is happily chosen. I should prefer to say
that when such a statute, expressing the will and intention of
the King and of the three estates of the realm is passed, it
abridges the royal prerogative while it is enforced to this
extent: that the Crown can only do the particular thing under
and in accordance with the statutory provisions, and that its
prerogative power to do that thing is in abeyance.
Whichever mode of expression be used, the result intended
to be indicated is, I think, the same namely, that after the
statute has been passed, and while it is enforced, the thing it
empowers the Crown to do can thenceforth only be done by
and under the statute, and subject to all the limitations,
restrictions and conditions by it imposed, however
unrestricted the royal prerogative may theretofore have
been.
Lord Moulton, dealing with the same issue, at page 554
asked:
What effect has this course of legislation upon the royal
prerogative? I do not think it can be said to have abrogated
that prerogative in any way, but it has given the Crown
statutory powers which render the exercise of that
prerogative unnecessary, because the statutory powers that
have been conferred upon it are wider and more
comprehensive than those of the prerogative itself. But it
has done more than this. It has indicated un-mistakenly that
it is the intention of the nation that the powers of the Crown

in these respects should be exercised in the equitable


manner set forth in the statute, so that the burden shall not
fall on the individual but shall be borne by the community
this being so, when powers covered by this statute are
exercised by the Crown it must be presumed that they are so
exercised under the statute and therefore subject to the
equitable provision for compensation which is to be found in
it.
At page 561 Lord Sumner said:
I do not think that the precise extent of the prerogative
need now be dealt with. The legislature, by appropriate
enactment, can deal with such a subject matter as that now
in question in such a way as to abate such portions of the
prerogative as apply to it. It seems also to be obvious that
enactments may have this effect, provided they directly deal
with the subject matter, even though they enact a modus
operandi for securing the desired result, which is not the
same as that of the prerogative there is no object in
dealing by statute with the same subject matter as is already
dealt with by the prerogative, unless it be either to limit or at
least vary its existence, or to provide an additional mode of
attaining the same object.
Finally, Lord Parmoor at page 576 stated that:
The principles of construction to be applied in deciding
whether the royal prerogative has been taken away or
abridged are well ascertained. It may be taken by or
abridged by express words [or] by necessary implication I
am further of opinion that where a matter has been directly
regulated by statute there is a necessary implication that the
statutory regulation must be obeyed, and that as far as such
regulation is inconsistent with the claim of a royal
prerogative right, such right can no longer be enforced.
He also stated at page 575:
The constitutional principle is that when the power of the

executive to interfere with the property or liberty of subjects


has been placed under Parliamentary control and directly
regulated by statute, the executive no longer derive its
authority from the Royal Prerogative of the Crown but from
Parliament .
[73]
The issue of the prerogative giving way to statute
law arose before the Court of Appeal in England and Wales in
the case of Laker Airways in 1977.
[74]
This was a case of some little complexity but it
essentially involved a consideration of the relationship
between a statutory scheme under the Civil Aviation Act
1971 which expressly dealt with the granting of a licence
by the UK authorities under the Act to the plaintiff airline
and a treaty based arrangement involving the United States
of America and the United Kingdom for, inter alia, the
granting of a designation under which an airline could
operate on a transatlantic route. The plaintiff airline, prior to
a change of United Kingdom Government policy, had been
enjoying the benefit of a statutory licence and was on the
way to achieving designation under the Bermuda Agreement
of 1946. But this, on the change of policy, soon changed.
The United Kingdom government, by issuing guidance,
sought successfully to induce a revocation of the statutory
licence but the court later held this to be unlawful.
Notwithstanding this the government sought then to rely on
the non-designation of the airline under the Bermuda
arrangements which were based on prerogative power. The
court held that reliance on the prerogative power was
defeated by the existence of the statutory right.
[75]
The principles informing where the line between the
prerogative and statute should be drawn were not, however,
the subject of extensive consideration. As already noted,
Roskill LJ (as he then was) considered that there had been
exhaustive consideration of the issue of principle in De
Keyser. In the case before him he applied the opinions in De
Keyser. Lord Denning focussed more broadly on the wider
issues of abuse of power disclosed by the case and said little

about the issue now under discussion. Lawton LJ took the


view that by necessary implication the Act should be
construed so as to prevent the government from rendering
licences useless by the withdrawal of designation when the
Secretary of State could not procure the authority lawfully to
revoke them nor lawfully do so himself: see page 728 (c)-(d).
An aspect of the matter commented upon by Lawton LJ was
that there was nothing in the Act which curbed the use of the
prerogative in the sphere of international relations but, in his
view, the provisions of the Act regulated all aspects of the
revocation of licences with the consequence already
described.
[76]
The next case involving the line to be drawn
between statute and prerogative power is that of R v
Secretary of State for Home Department ex parte Fire
Brigades Union and others [1995] 2 AC 513. This case
concerned schemes for criminal injury compensation.
Parliament in 1988 had legislated for a new statutory
scheme in the Criminal Justice Act 1988 but this scheme was
not commenced. Instead, the Secretary of State decided to
introduce a fresh scheme in its place using prerogative
power. This latter scheme brought in a series of tariff
provisions under which compensation was to be calculated
as against the more generous compensation arrangements
contained in the 1988 Act. The issue which arose was
whether it was lawfully open to the Secretary of State to use
prerogative power in this way while, albeit not commenced,
the scheme under the 1988 Act remained on the statute
book. The Court of Appeal held that the Secretary of States
use of the prerogative power to establish the tariff scheme
was unlawful and by a majority of 3/2 the House of Lords
agreed. In the Court of Appeal Sir Thomas Bingham MR
stated at page 522 (e)-(f):
The leading cases to which our attention was properly
drawn, Attorney General v De Keysers Hotel Limited and the
Laker Airways case did not concern statutory provisions
not brought into force and so provide no direct answer to this
question. It must therefore be approached as an issue of

principle. Again, as it seems to me, the Secretary of States


argument gives too little weight to the overriding legislative
role of Parliament. It has approved detailed provisions
governing the form which, underpinned by statute, the
scheme should take. Sections 108-117 and Schedule 6 and
7 are not a discussion paper but a blueprint approved in the
most solemn form for which our constitution provides. It
was, of course, open to the Secretary of State to invite
Parliament to repeal the provisions [h]e could have sought
enactment of provisions giving effect to the tariff scheme in
substitution for the 1988 provisions; or if the 1988 provisions
were simply repealed he could have exercised his
prerogative powers to introduce the tariff scheme, the field
then being once more unoccupied by statute. What in my
judgment he could not lawfully do, so long as the 1988
provisions stood un-repealed as an enduring statement of
Parliaments will, was to exercise prerogative powers to
introduce a scheme radically different from that Parliament
had approved.
[77]
In the House of Lords, in a passage often later cited,
Lord Browne-Wilkinson at page 553 (d)-(g) said:
My Lords, it would be most surprising if, at the present day,
prerogative powers could be validly exercised by the
executive so as to frustrate the will of Parliament expressed
in a statute and, to an extent, to pre-empt the decision of
Parliament whether or not to continue with the statutory
scheme even though the old scheme had been abandoned.
It is not for the executive, as the Lord Advocate accepted, to
state as it did in the White Paper (paragraph 38) that the
provisions of the Act of 1988 will accordingly be repealed
when a suitable legislative opportunity occurs. It is for
Parliament, not the executive, to repeal legislation. The
constitutional history of this country is the history of the
prerogative powers of the Crown being made subject to the
overriding powers of the democratically elected legislature
as the sovereign body. The prerogative powers of the Crown
remain in existence to the extent that Parliament has not
expressly or by implication extinguished them. But under

the principle in Attorney General v De Keysers Royal Hotel


Limited if Parliament has conferred on the executive
statutory power to do a particular act, that act can only
thereafter be done under the statutory powers so conferred:
any pre-existing prerogative powers to do the same act is
pro tanto excluded.
[78]
A further case to which the court was referred was R
v Secretary of State for the Home Department ex parte
Northumbria Police Authority [1989] QB 26. The subject
matter of this case was the supply of equipment to police
forces. A circular made by the Secretary of State under
prerogative powers had provided that riot control equipment
could be made available to police forces, irrespective of the
approach taken by police authorities. This was challenged
by the Northumbria Police Authority on the basis that it had
to approve any provision of equipment in accordance with
the terms of the Police Act 1964, save in a situation of grave
emergency. A Divisional Court dismissed the Police
Authoritys judicial review, a decision later upheld by the
Court of Appeal.
[79]
At pages 44-45 Croom-Johnston LJ explained the
position as follows:
It is clear that the Crown cannot act under the prerogative if
to do so would be incompatible with statute. What was said
here is that the Secretary of States proposal under the
circular would be inconsistent with the powers expressly or
impliedly conferred on the Police Authority by Section 4 of
the 1964 Act. The Divisional Court rejected the submission
for reasons with which I wholly agree; namely that Section 4
did not expressly grant a monopoly, and that granted the
possibility of an authority which declines to provide
equipment required by the Chief Constable there is every
reason not to imply a Parliamentary intent to create one.
Purchase LJ at page 63 said:
It is well established that the courts will intervene to

prevent executive action under prerogative powers in


violation of property or other rights of the individual where
this is inconsistent with the statutory provisions providing for
the same executive action. Where the executive action is
directed towards the benefit of protection of the individual, it
is unlikely that its use will attract the intervention of the
courts. In my judgment, before the courts will hold that such
executive action is contrary to legislation, express and
unequivocal terms must be found in the statute which
deprive the individual from receiving the benefit of
protection intended by the exercise of prerogative power. In
the present case the Secretary of State contended that if he
does not have the power to make equipment available to
police forces under the Act, he must have this power under
the royal prerogative for the purpose of promoting the
efficiency of the police. In order to dispute this the police
authority had to contend that the combined effects of
Section 4(1) and 41 is to prevent the Secretary of State from
supplying equipment unless it is requested by the police
authority. These sections have already been considered in
this judgment. Even if I am not justified in holding that these
sections afford positive statutory authority for the supply of
equipment, they must fall short of an express and
unequivocal inhibition sufficient to abridge the prerogative
powers, otherwise available to the Secretary of State, to do
all that is reasonably necessary to preserve the peace of the
realm.
[80]
Finally, in the case of R (Alvi) v Secretary of State for
the Home Department (Joint Council for the Welfare of
Immigrants Intervening) [2012] 1 WLR 2208, in the context
of considering an issue of whether a form of Home Office
guidance should have been dealt with under Immigration
Rules, Lord Hope, as background to his consideration, noted
the general position in respect of the operation of
prerogative powers as follows:
The exercise of a prerogative power may however be
suspended, or abrogated, by an Act of Parliament: Attorney
General v De Keysers Royal Hotel Limited per Lord

Atkinson. So a statute which operates in the field of


prerogative may exclude the possibility of exercising
prerogative powers. Where a complete and exhaustive code
is to be found in the statute, any powers under the
prerogative which would otherwise have applied are
excluded entirely Any exercise of a prerogative power in a
manner, or for purpose, which is inconsistent with the
statute will be an abuse of power
The submission of the parties on the appropriate test
[81]
Both Mr Scoffield for the applicant in Agnew and
others and Mr McGleenan for the respondents were in
general agreement that there was no single and universal
test which could be said to apply in this area, having regard
to the authorities, which would precisely delineate the point
of which prerogative power must give way to statute.
Inevitably much would depend on the circumstances.
[82]
Counsels postures on this issue tended to reflect
their respective clients interest in this case. Accordingly, Mr
Scoffield argued for a broad and flexible approach to the test
to be applied. There was, he argued, no need to establish an
intention on the part of the legislature, or even a conscious
choice, to limit the prerogative. Nor was there any
requirement that the restriction of the prerogative power be
formal or express. It was enough, counsel argued, that
statutory power operates in the context of the prerogative
and was inconsistent with it. On the other hand, Mr
McGleenan placed emphasis on the need for a narrow
approach to this issue. In his submission, the correct
approach should recognise that only in limited circumstances
should a recognised prerogative power cease to be available
to the executive. This may occur where, in his formulation:
Parliament has intended that it should cease to be available
either by expressly legislating to this effect or where this
result arose by way of necessary implication from statute.

The courts view


[83]
It is the courts view that the test which should be
applied will reflect a series of factors and cannot be reduced
to a single bright line rule which governs every case. The
fact that there is no express language found in the statute
specifically limiting the operation of the prerogative will be
highly relevant, as an obvious way of setting aside or limiting
prerogative power would be for the statute concerned to
expressly say so. It also seems to the court that there is
support in the authorities for the view that, absent express
provision being made, abridgment of the prerogative by a
statute or statutory scheme must arise by necessary
implication. In this context the court accepts that the
approach to this term found in R (Morgan Grenfell & Co Ltd)
v Special Commissioner of Income Tax [2002] 2 WLR 1299 at
paragraph [45] is an appropriate one. Lord Hobhouse stated
that:
It is accepted that the statute does not contain any express
words that abrogate the tax payers common law right to
rely on legal professional privilege. The question therefore
becomes whether there is a necessary implication to that
effect. A necessary implication is not the same as a
reasonable implication as was pointed out by Lord Hutton in
B (A Minor) v Director of Public Prosecutions [2000] 2 AC
428, 481. A necessary implication is one which necessarily
follows from the express provisions of the statute construed
in their context. It distinguishes between what it would have
been sensible or reasonable for Parliament to have included
or what Parliament would, if it had thought about it, probably
have included and what it is clear that the express language
of the statute shows that the statute must have included. A
necessary implication is a matter of express language and
logic not interpretation.
[84]
Other factors to be considered, it appears to the
court, include:


That the statute must occupy the specific ground
hitherto occupied by the prerogative. The statute, in other
words, must empower the doing of the very thing which the
prerogative has dealt with up to the point of statutory
intervention.

That the intervention by the statute must be direct in


its effect on the subject matter in question and not the result
of a side wind.

That the juxta position of the parallel sources of


authority must be such as it can be said that the use of the
prerogative power would be incompatible or inconsistent
with the relevant statutory provision.
[85]
What the court must do now is to apply the approach
outlined above to the provisions in the Northern Ireland Act
1998 read against its constitutional background in order to
conclude whether the effect of these in this case displaces
prerogative power in relation to the function of notification
for the purpose of Article 50(2) of TEU.
[86]
On this issue the applicants case has been put both
in general ways and by reference to specific provisions.
[87]
In respect of the former, it has been suggested that
the Northern Ireland Act 1998 has been inextricably
interwoven with the United Kingdoms continued
membership of the EU and this outworking of the model of
democracy should be viewed as protected from change on
the facts of this case.
[88]
It is also submitted that Parliament has not
authorised any action under Article 50 and that to allow
Article 50 to be triggered without an Act of Parliament
authorising it would automatically result in the removal or
abrogation of rights currently enjoyed by United Kingdom
citizens. To achieve such a result, therefore, requires the
legislative sanction of Parliament.

[89]
Additionally, it was asserted that notification under
Article 50 involved, in effect, the beginning of a far reaching
process of amending the 1998 Act which would cut across
domestic, EU and international dimensions. This would
upset the delicate constitutional balance established as a
result the Good Friday Agreement and the 1998 Act.
[90]
Put another way, the operation of EU law should be
viewed as a building block of Northern Irelands
constitutional protections and continued membership is a
necessary element of the North-South and East-West
structures and the relationships which form the kernel of the
constitutional arrangements for Northern Ireland in modern
times. This was illustrated especially in respect of cross
border activities over a wide range of subject matters and, if
these were interfered with by the triggering of Article 50, this
would have momentous consequences for the rights granted
to individuals and for society as a whole. Among the
consequences for society would be the weakening of
constitutional protections, such as those under the European
Convention on Human Rights, by the removal of the
underpinning provided for it in EU law.
[91]
In respect of reliance on specific provisions the court
was shown a large number of provisions which, it was
contended, detailed the direct damage which notification
would have to Northern Irelands constitutional framework.
This damage was the greater because of the interlocking
nature of the major elements in the arrangements.
[92]

Particular emphasis was placed on the following:

(i)
The loss of EU law as a limit to the Assemblys power
to legislate and as a constraint on the use of executive
power (section 6(2)(b) and Section 24(1)(b)).
(ii)
The loss of EU law in connection with the operation of
the North/South Council and the implementation bodies
established in connection with it. The main example in this
area was in connection with the operation of the Special EU

Programmes Body whose remit has been referred to earlier


in this judgment. Part of the day to day functioning of this
body involved on-going consideration of issues of EU law and
its administration in both parts of Ireland. It was contended
that the nature of this body was a good example of the
requirement that there should not be change to the position
of Northern Ireland as part of the EU.
[93]
The applicants accepted (at least in the Agnew and
others case) it could not be said any of the specific
provisions referred to expressly superseded the prerogative
but, it was submitted, the territory dealt with in many of the
provisions of the 1998 Act demonstrated an undermining of
prerogative power in a manner fatal to its continued use.
[94]
The retort of the intended respondents to the
applicants claims above was in broad terms that there was
nothing in the provisions relied upon by the applicants that
either expressly or by necessary implication had the effect of
curtailing the ability of the executive to use prerogative
power for the purpose of Article 50(2).
[95]
In this regard, the intended respondents pointed out
that the terms of the EU Referendum Act did not specify
what steps the Government was required to take in the
event of a vote in favour of leaving the EU. The matter, it
was suggested, was left to the executive to decide and no
case could be made that it was any part of the statutory
intention, as now claimed, that there would have to be a
further Act of Parliament before Article 50(2) could be
triggered.
[96]
Nor, it was contended, could it be said that any of
the provisions of the 1998 Act or its contextual surroundings
could properly be viewed as having this effect. The Act was
not directed at this issue. There were statutory provisions in
other areas where a clear intention to replace prerogative
power by an exercise of statutory power could be plainly
identified, for examples the European Union (Amendment)
Act 2008 sections 5, and the European Union Act 2011

section 2, but nothing remotely similar arose in the present


case. In this regard, the words of Lloyd J (as he then was)
were quoted from his judgment in R v Secretary of State for
Foreign and Commonwealth Affairs ex parte Rees-Mogg
[1994] 2 WLR 115 at page 124, where he said:
When Parliament wishes to fetter the Crowns treaty-making
power in relation to community law, it does so in express
terms, such as one finds in section 6 of the 1978 Act
[European Parliamentary Elections Act 1978].
[97]
The most which could be said in this area, according
to the intended respondents, was that the Good Friday
Agreement and the provisions made subsequently in the
1998 Act were written against the context then prevailing,
including the United Kingdoms membership of the EU. The
provisions made were a recognition of a day to day feature
of government but it was no part of the arrangements made
that any guarantee was being offered or provided about
possible departure by the United Kingdom or Ireland from
the EU at some date in the future. On the contrary, there
was a working assumption that both states were likely to
remain in the EU, but at that stage, no-one had in mind that
at a later date one or other might (by a vote of the people in
a referendum) decide to leave.
[98]
The language found in the provisions quoted by the
applicants reflected, in the intended respondents
submission, no more than that EU law and policy was an
aspect of governance which affected the functioning of the
various governmental bodies and agencies within their
respective jurisdictions.
[99]
The Attorney General supported the arguments of
the intended respondents. As he put it: the triggering of
Article 50(2) will amend not even a comma or full stop of
the Northern Ireland Act 1998. Moreover, the provisions
cited by the applicants said nothing about the exercise by
the Government of the prerogative in respect of international
affairs, including the making of treaties.

[100] The limits to the competence of the Assembly and


Executive found in the 1998 Act were simply a function of
the substantive content of EU at a given point in time as
given effect to by legislation. Triggering Article 50(2) had no
direct impact on this situation. Citizens in the United
Kingdom would continue to enjoy whatever rights Parliament
provided for from time to time, whether their origin derived
from the EU or another source.
[101] Moreover, there was nothing in any of the
agreements preceding the 1998 Act which involved any
guarantee of continued membership of the EC or which
stipulated any requirement about how leaving the EU, if that
became a policy goal, would be effected.
The Courts Assessment
[102] While the court has had opened to it a wide range of
provisions relating to the 1998 Act, and the agreements
which preceded it, the court cannot identify any particular
provision which expressly has sought to limit or alter the
prerogative power of the executive in the context of
notification under Article 50(2). In the courts view, Mr
Scoffields concession on this point is properly made.
[103] The issue therefore becomes, in accordance with the
test the court favours, whether the prerogative has become
unavailable by reason of any necessary implication arising
out of any the statutory provisions read in the light of their
status and background.
[104] There are two aspects to the courts consideration
which it believes have to be kept firmly in mind. First of all
there is the need to keep focus on the subject matter of the
prerogative power which is in question. This is the power to
notify for the purpose of withdrawal from the EU in
accordance with Article 50(2). Secondly, the alleged
displacing provisions have to be read in context. This is
important because the meaning of the provisions cannot be

divorced from their surroundings.


[105] In the present case, it seems to the court that there
is a distinction to be drawn between what occurs upon the
triggering of Article 50(2) and what may occur thereafter. As
the Attorney General for Northern Ireland put it, the actual
notification does not in itself alter the law of the United
Kingdom. Rather, it is the beginning of a process which
ultimately will probably lead to changes in United Kingdom
law. On the day after the notice has been given, the law will
in fact be the same as it was the day before it was given.
The rights of individual citizens will not have changed
though it is, of course, true that in due course the body of EU
law as it applies in the United Kingdom will, very likely,
become the subject of change. But at the point when this
occurs the process necessarily will be one controlled by
parliamentary legislation, as this is the mechanism for
changing the law in the United Kingdom.
[106] At this point in the analysis the context of the various
statutory or other provisions must be considered. In this
connection, the court has difficulty in affording such
provisions any role concerned with displacing prerogative
power for the purpose here at issue. What the various
provisions here at issue are concerned with is not the
limitation of prerogative powers but the operation of the new
institutions in circumstances where an on-going reality of
life, in accordance with the then existing law, was
membership of the EU. The devolved institutions, to a
greater or lesser extent, within the area transferred to them
will be administering EU provisions and considering the
future development of EU law in relevant subject areas. The
same will be true of North/South and East/West institutions
and implementation bodies, again all within the limits of
their respective jurisdictions. It would be strange if it were
otherwise. This sort of activity is consonant with the terms
of the Good Friday Agreement and the 1998 Act. The roles
referred to in the Agreement involve such matters as the
input by Northern Ireland Ministers to national policy making
in the area of EU issues; the consideration of the EU

dimension in the North/South Council; and approaches to EU


issues in the British/Irish Council (see paragraphs [32], [35]
and [37] supra). The same pattern emerges from a
consideration of relevant portions of the 1998 Act. The role
of the devolved institutions is in the area of observing and
implementing obligations under community law (Schedule 2
paragraph (3)(c)); providing a means for certain community
law obligations to be given effect in Northern Ireland (section
27(1) and (2)); and enabling implementation bodies to carry
out certain functions in respect of community law initiatives.
But it is a different matter to portray the position as being
one in which it is accurate to say that a cornerstone of the
new institutions, without which the various edifices would
crumble, is continued membership of the EU. The devolved
institutions and the various North/South and East/West
bodies do not as their raison detre critically focus on EU law.
Their concerns and functions are much wider than this. This
is not to say that the United Kingdom leaving the EU will not
have effects at all but it is to say at the least it is an
over-statement to suggest, as the applicants do, that a
constitutional bulwark, central to the 1998 Act
arrangements, would be breached by notification. This
would be to elevate this issue over and beyond its true
contextual position.
[107] It is therefore, in the courts opinion, inapt for the
applicants to talk in terms of notification changing the rights
of individuals or of the operation of institutions becoming
transformed by reason of the invocation of Article 50(2).
This simply will not happen by reason of the step of
notification per se. The reality is, at this time, it remains to
be seen what actual effect the process of change
subsequent to notification will produce. In the meantime,
sections 6 and 24 of the 1998 Act will continue to apply; the
North/South and East/West institutions will continue to
operate; and the work of implementation bodies will go on.
While the wind of change may be about to blow the precise
direction in which it will blow cannot yet be determined so
there is a level of uncertainty, as is evident from discussion

about, for example, how Northern Irelands land boundary


with Ireland will be affected by actual withdrawal by the
United Kingdom from the EU.
[108] The court is not persuaded, for the purpose with
which this judicial review is concerned, prerogative power
has been chased from the field or that statutory power (in
the form of the 1998 Act) has displaced it in accordance with
the test described above. Rather, it is the courts view the
prerogative power is still operative and can be used for the
purpose of the executive giving notification for the purpose
of Article 50. This, however, is said without prejudice to the
issues which have been stayed and which are under
consideration in the English courts.
Issue 2
[109] As the court has held that the intended respondents
are entitled to proceed to notify under Article 50(2) using
prerogative power and that an Act of Parliament is legally
unnecessary for this purpose, the second issue, strictly, does
not arise for consideration.
[110] However, the court will consider it, in case it is wrong
in its conclusions in respect of Issue 1 and an Act of
Parliament is required for pulling the Article 50 trigger.
[111] In respect of Issue 2, the case which is made on
behalf of the applicants in Agnew and others, where the
issue is pleaded (unlike in the case of McCord where it is not
pleaded but appears in this applicants skeleton argument),
is that in the event of an Act of Parliament being required for
Article 50(2) purposes, there is an obligation on the intended
respondents to seek and receive the consent of the Northern
Ireland Assembly to such legislation by obtaining from it the
passage of a Legislative Consent Motion authorising such
legislation.
[112] It is argued by the applicants that the failure to seek
and procure such a consent would be in breach of a

constitutional convention whereby the consent of the


Northern Ireland Assembly will be obtained for Westminster
legislation affecting the devolved powers of the Assembly
(see paragraph 4(2)(b) of the Order 53 Statement in Agnew
and others). The matter is explained further at paragraph 46
et seq of the Agnew and others skeleton argument. This
reads:
As regards devolution, a constitutional convention has
evolved, and is now clearly established, whereby
Westminster legislates with regard to transferred matters
only with the consent of the Northern Ireland Assembly. This
derives from two sources. The first source is the practice
which evolved between 1921 and 1970, in which a
constitutional convention to similar effect evolved at
Westminster vis a vis the Parliament of Northern Ireland
The second source is the practice that has evolved more
generally in the United Kingdom between Westminster and
the devolved legislatures, not only in Northern Ireland but
also in Scotland and Wales. Sometimes called the Sewel
Convention after the Scottish Office Minister in the House of
Lords who set out the terms of the convention during the
second reading debate on the Scotland Billthere are also
written commitments to this effect in, for instance, the
Memorandum of Understanding and Supplementary
Agreements between the United Kingdom Government, the
Scottish Ministers, the Welsh Ministers and the Northern
Ireland Executive Committeeparagraph 14 of which states:
the UK Government will proceed in accordance with the
convention that the UK Parliament would not normally
legislate with regards to devolved matters except with the
agreement of the devolved legislature. The devolved
administrations will be responsible for seeking such
agreement as may be required for this purpose on an
approach from the UK Government.
[113] The approach of the intended respondents to Issue 2
has not been to deny the existence of a convention in the
terms described but to submit that it has no application on
the facts of this case. Moreover, and in any event, they

submit that such a convention is not legally enforceable and


is, in reality, a matter of politics not law.
[114] The crucial legal provision, they contend, is section 5
(6) of the 1998 Act whose terms have been set out earlier in
this judgment. Under this provision the Westminster
Parliament is free to make laws for Northern Ireland and this
is unaffected by the onset of devolution under the 1998 Act.
In other words, it is contended that, as a matter of law, the
Parliament of the United Kingdom can pass any law in
relation to Northern Ireland and is uninhibited by the need to
obtain a Legislative Consent Motion.
[115] In any event, the intended respondents say, any Act
of Parliament of the nature envisaged, to trigger Article
50(2), does not fall within the terms of the convention. This
is because such an Act would constitute legislation on an
excepted matter for the purpose of the scheme of devolution
whereas the convention is about obtaining the consent of
the Northern Ireland Assembly to Westminster legislation
which falls into the devolved category.
[116] Finally, the intended respondents point out that the
terms of the convention clearly envisage that there would be
occasions where, notwithstanding the convention, Parliament
may choose to legislate for Northern Ireland without seeking
consent despite the fact that the legislation may be in
respect of a transferred matter. The use of the word
normally in the formulation of the convention enables such
to occur and any debate about the propriety of such a step,
it is submitted, should be reserved to the world of political
debate.
[117] On this issue, the Attorney General for Northern
Ireland strongly supported the submissions of the intended
respondents. In his view the subject matter of any
legislation at Westminster to trigger Article 50(2) would be
an excepted matter for the purpose of the 1998 Act so that
the convention would not apply to it. The Attorney General
for Northern Ireland drew attention to inconsistencies in the

way in which the convention had been stated in some of the


publications in this area, especially in respect of what
constituted devolved matters. In his submission, the correct
view of the conventions intersection with devolved powers
was that found at paragraph 14 of the Memorandum of
Understanding and Supplementary Agreements between the
United Kingdom Government, the Scottish Ministers, the
Welsh Ministers and the Northern Ireland Executive. The
terms of this have already been referred to in the quotation
taken from the applicants skeleton argument in Agnew and
others as referred to above (see paragraph [111] supra).
This formulation, he noted, was also consistent with the
terms of the Sewel convention, a point also relied on by the
applicants, as the above quotation shows. In fact the Sewel
Convention, in the terms in which it has been referred to
above, has now been recognised by statute law in Scotland:
see section 2 of the Scotland Act 2016. In effect the test for
the application of the convention in Northern Ireland, the
Attorney General for Northern Ireland submitted, was
whether the United Kingdom Parliament was legislating for
Northern Ireland with regard to devolved matters. In the
Attorney General for Northern Irelands view there existed a
linkage between this expression and the legislative scheme
of devolution found in the 1998 Act. Hence when the scheme
of legislative competence was applied, any Act of Parliament
which had the object of giving notification for the purpose of
Article 50(2) would not be legislation with regard to devolved
matters. The alternative formulation which the Attorney
General for Northern Ireland did not support but drew
attention to was that found in two documents from different
sources: the first was Devolution Guidance Note 8 and the
second was Standing Order 42A of the Northern Ireland
Assemblys Standing Orders. In both sources the terms of the
convention appear to have been widened to include
legislation which dealt with change to the legislative
competence of the Assembly and legislation which changed
the executive functions of a Minister or any Department. It
was the Attorney Generals view that the Assemblys
Standing Order may have had its textual origin in the

Guidance Note which appears to have been published before


the latest version of the Memorandum which4 is dated 2013.
Interestingly when the Guidance Note is studied it can be
seen that in that part of it referred to as General the
narrower view of the convention is referred to whereas the
wider view appears in a later section of it entitled Long Term
legislative plans. Another matter raised by the Attorney
General related to the terms in which the convention was
written, particularly the use of the word normally in the
usual formulation of the convention. This, in his opinion, was
significant and rendered the convention unenforceable in
practice. In this regard, he drew the courts attention to how
a similarly worded provision in the Ministerial Code was
interpreted by both the High Court and the Court of Appeal
in the Northern Ireland constitutional case of Re De Bruns
and anothers Application [2001] NIQB 3 (High Court) and
[2001] NI 442 (Court of Appeal). In that case, at both levels,
it was held that the use of the word normally in the
relevant formulation in the Code made it clear that the
normative step was not to be regarded as obligatory.
[118] On the issue of the width of the convention the
Attorney General for Northern Ireland provided the court with
a note he had received from the Lord Advocate, Scotlands
senior law officer, in respect of his written submission. This
note took issue with the Attorney General for Northern
Irelands view of the scope of the Legislative Consent
convention in Scotland. From this note it is clear that the
Lord Advocates view of the convention in Scotland is
supportive of the wider interpretation referred to above
which he viewed as the correct interpretation in line with
provisions relating to legislative competence in the Scotland
Act; Devolution Guidance Note 10 (which relates to
Scotland); and the Standing Orders of the Scottish
Parliament.
The Courts Assessment
[119] For the purpose of this judgment the court will
assume that a convention exists in Northern Ireland along

the lines of the narrower of the two views expressed above.


This is consistent with the passage quoted from the skeleton
argument of the applicants in Agnew and others as set out
above. It is also consistent with what these applicants have
described as the sources of the convention. The first of
these was said to be practice in the operation of devolved
government under the Government of Ireland Act 1920.
While the matter was never free from difficulty, it was often
said during that period, which stretched to the early 1970s,
there was in operation a convention that Westminster would
not legislate for Northern Ireland within the transferred field
without the consent of the Government of Northern Ireland
(see, for example, Calvert, Constitutional Law in Northern
Ireland (1968) at pages 89 et seq and Hadfield, The
Constitution of Northern Ireland (1989) page 80 et seq). The
practice in question, however, did not go beyond that just
described. The second source referred to by the applicants
the Sewel convention was confined in a similar way, as has
already been referred to. Neither of these sources can be
associated with what has been described above as the wider
view, bringing into the scope of the convention legislation for
the purposes already described. In these circumstances, the
court would be slow to presume the existence of an alleged
convention which has been broadened in the manner
described, is contested and does not reflect consistent
practice and usage. The main question for the court is
whether that convention which the court will assume does
exist is in play on the facts of this case.
[120] This requires the court to decide whether such
legislation as the United Kingdom Parliament may pass for
the purpose of giving notice under Article 50(2) comes
within the scope of the above convention, as it applies in
Northern Ireland. The appropriate test, having regard to the
position of the applicants and the intended respondents and
the Attorney General for Northern Ireland, is whether the
Westminster legislation at issue is with regards to devolved
matters.
[121]

In the courts view, the answer to the above question

lies in a consideration of the scheme for the distribution of


legislative competence found in the 1998 Act. When this
legislation is examined, it is the courts view that applying
Schedule 2 to the 1998 Act, the better view is that any
legislation for the purpose of notification under Article 50(2)
would be legislation relating to an excepted matter i.e it
would be legislation concerning relations with the European
Communities and their institutions. It would not, in the
courts view, be legislation with regards to devolved
matters, even if one was to adopt a broad approach to the
meaning of this phrase. Accordingly, the convention has no
application to the scenario with which Issue 2 is concerned.
[122] Even if the court was wrong in its view above, the
court has great difficulty in seeing how this convention
could, in any event, be viewed as enforceable via legal
proceedings given its status as a convention, where such a
status is associated with unenforceability in a court of law,
the use of the word normally in the provision, the
essentially political nature of the decision which would then
be at issue, and the clear terms of section 5(6) of the 1998
Act. The situation may, of course, be different in Scotland, a
matter this court will leave for the Scottish courts to decide.
Issue 3
[123] This issue arises in the context of how the intended
respondents should go about exercising prerogative power
for the purpose of notifying under Article 50(2). It therefore
assumes that the court will not find in favour of the
applicants on Issue 1.
[124] The theme of this ground is that the intended
respondents are obliged to exercise prerogative power in
accordance with the principles of public law.
[125] A number of particular grounds of challenge are
made. Firstly, it is claimed that the prerogative may only be
exercised in a way which is not inconsistent with Northern
Irelands unique constitutional place in the United Kingdom.

Secondly, it is asserted that the prerogative may only be


exercised after properly having taken into account and
having enquired into all relevant alternatives to the entirety
of the United Kingdom exiting the EU. Thirdly, it is submitted
that the prerogative may lawfully be exercised only if the
Government has not given excessive weight to the result of
the referendum held on 23 June 2016. Fourthly, it is put
forward that the prerogative must be exercised in a manner
which upholds EU law for so long as it remains effective in
the United Kingdom. Fifthly, it is claimed that the
prerogative must be exercised in a manner which respects
obligations of the United Kingdom such as those arising
under the British-Irish Agreement.
[126] The intended respondents have offered various
responses to the above grounds. They point to a level of
overlap between some of the matters raised and Issue 1.
Further, they allege that some of the grounds put forward
are really challenges to the decision to withdraw from the EU
rather than challenges which concern the mechanism of
Article 50(2), which is the focus of this judicial review
challenge. Some of the challenges made, it is also
contended, are in the abstract and are not based on
evidence. Finally, it is objected that the substance of the
challenge enters into forbidden territory and is not
justiciable.
The courts assessment
[127] It seems to the court that there is a substantial area
of overlap between some of the grounds put forward under
this issue and those which have been dealt with at Issue 1
above. In this regard the matters referred to at one and five
in the list referred to above appear to duplicate the
argument at Issue 1 which the court has already ruled on.
But even if this wrong or if there is a remainder left over, the
court confesses to having some difficulty in appreciating how
grounds of the broad nature of these grounds are to be
assessed by it. Much of what underlies the propositions
which have been put forward appear to the court to depend

on assessments within government which are wide ranging


and multi-factoral and beyond the abilities of the court to
assess.
[128] For example, the second argument made refers to
the extent of the enquiries which it is alleged the
Government should carry out into possible alternatives to
withdrawal from the EU and how these should be taken into
account. The court has little or no evidence about these
matters. But even if it did have such evidence, it is difficult
to see how, given the context in which these matters have
arisen, the court would set about carrying out its own
assessment of them.
[129] Much the same can be said regarding allegations
about the weight to be given by the Government to the
referendum result. The obvious answer to the ground
referring to this issue is that the weight to be given to this
factor is a political judgment for the government of the day
and that on grounds of lack of expertise the court has no
standing in respect of it.
[130] The fourth issue raised above appears to assert an
abstract proposition without any evidential sub-stratum.
[131] The court has grave doubts about the justiciability of
much of the ground covered under this heading. While the
time has long gone when it could be said that the manner in
which prerogative power is used is beyond the power of the
court to inquire into, there still remain some exercises of
prerogative power which are viewed as inappropriate for
judicial review because of their subject matter. The
landmark judgment in Council of Civil Service Unions v
Minister for the Civil Service [1984] 3 WLR 1174 says as
much. A passage in the speech of Lord Roskill in which he
refers to a list of instances of the use of prerogative power
which could not be the subject of judicial review should not
be overlooked. He said:
Many examples were given during the argument of

prerogative powers which as at present advised I do not


think could properly be made the subject of judicial review.
Prerogative powers such as those relating to the making of
treaties, the defence of the realm, the prerogative of mercy,
the grant of honours, the dissolution of Parliament and the
appointment of ministers as well as others are not, I think,
susceptible to judicial review because their nature and
subject matter are such as not to be amenable to the judicial
process. The courts are not the place wherein to determine
whether a treaty should be concluded or the armed forces
disposed in a particular manner or Parliament dissolved on
one date rather than another (see page 1203).
[132] This has been the approach to be taken on this issue
since CCSU. While there have been particular prerogative
powers which have since been held subject to judicial review
or particular contexts in which judicial review of a particular
aspect of the prerogative, for example, in respect of foreign
affairs, has occurred, a reason for viewing a matter as nonjusticiable has been where high policy has been involved. In
R v Secretary of State for Foreign and Commonwealth Affairs
ex p Everett [1989] 1 AER 656, a case in which a prerogative
power (to issue passports) was viewed as being open to
judicial review, Taylor LJ nonetheless noted at page 660):
At the top of the scale of executive functions under the
prerogative are matters of high policymaking treaties,
making law, dissolving Parliament, mobilising the armed
forces. Clearly those matters, and no doubt a number of
others, are not justiciable.
[133] In the courts view, it is difficult to avoid the
conclusion that a decision concerning notification under
Article 50(2) made at the most senior level in United
Kingdom politics, giving notice of withdrawal from the EU by
the United Kingdom following a national referendum, is other
than one of high policy. Accordingly, it seems to fit well into
the category of prerogative decisions which remain
unsuitable for judicial review, referred to by Lord Diplock, in
CCSU:

Such decisions will generally involve the application of


government policy. The reasons for the decision maker
taking one course rather than another do not normally
involve questions to which, if disputed, the judicial process is
adapted to provide the right answer, by which I mean that
the kind of evidence that is admissible under judicial
procedures and the way in which it has to be adduced tend
to exclude from the attention of the court competing policy
considerations which, if the executive discretion is to be
wisely exercised, needs to be weighed against one and other
a balancing exercise which judges by their upbringing and
experience are ill-equipped to perform (see [1984] 3 WLR at
page 1027).
[134] For the reasons the court has already given, such a
decision does not lend itself to the process of judicial review
and remains an example of the sort of decision which
properly should be viewed as non-justiciable.
[135] In reaching this conclusion the court wishes to
indicate that it has considered cases such as Youssef v
Foreign Secretary [2016] 2 WLR 509, R (Sandiford) v Foreign
Secretary [2014] 1 WLR 2697 and R (Bancoult) v Secretary
of State for Foreign and Commonwealth Affairs [2009] 1 AC
453, but, in the courts estimation, none of those cases
reach the heights of the high level policy which underpins
the present case.
[136] In the light of the various factors set out above, the
court does not consider that any of the arguments advanced
under this issue are well made and it rejects them as
grounds of challenge.
Issue 4
[137] This is a discrete issue. In respect of it, the
applicants contend that before a notification is provided
under Article 50(2) a necessary preliminary step in the
process is that the Northern Ireland Office (NIO) must

comply with section 75 of the 1998 Act and its own equality
scheme.
[138]

Section 75 provides, in its material part, as follows:

(1) A public authority shall in carrying out its functions in


relation to Northern Ireland have due regard to the need to
promote equality of opportunity:
(a)
Between persons of different religious belief, political
opinion, racial group, age, marital status or sexual
orientation;
(b)

Between men and women generally;

(c)
Between persons with a disability and persons
without; and
(d)
Between persons with dependants and persons
without.
(2) Without prejudice to its obligations under subsection (1),
a public authority shall in carrying out its functions relating
to Northern Ireland have regard to the desirability of
promoting good relations between persons of different
religious belief, political opinion or racial group.
[139] The detail of the argument is that the NIO is a public
authority for the purpose of the 1998 Act as demonstrated
by its inclusion in the Northern Ireland Act 1998 (Designation
of Public Authorities) Order 2000 and must, for the purpose
of Schedule 9 of the 1998 Act assess the impact on equality
of opportunity of policies adopted in the exercise of its
functions. There is, it is said, no statement from the NIO
indicating that its obligations have been taken into account
in relation to any advice the Secretary of State has given or
might be minded to give in the context of the triggering of
Article 50(2). There is therefore a prima facie case of breach
of section 75 and of the NIOs Equality Scheme in respect of
consultation, screening and the production of an equality

impact assessment.
[140] The intended respondents have sought to meet this
issue in a variety of ways.
[141] The following particular points were made as
alternatives to each other:
(i)
It was submitted that section 75 was not engaged on
the facts of this case. The means by which it is said to enter
the case is in respect of alleged advice given to Her
Majestys Government by the Secretary of State for Northern
Ireland, either in the past or to be given in the future in
relation to the subject of triggering Article 50(2). However,
the Secretary of State is not a designated public authority for
the purpose of section 75, a point clear from the list of public
authorities to which section 75 applies. This has also been
recognised by the courts as is shown by the case of Re
Murphys Application [2001] NI 425 at 435 where Kerr J (as
he then was) stated:
Only those bodies and agencies specified in s75 (3) of the
Act are to be public bodies for the purpose of the section.
The fact that the Secretary of State was performing a
function that, in other circumstances, might have been
carried out by the Assembly, could not bring him within the
provision. In this context it is worthy of note that s76 (7)
provides that a public authority shall include a Minister of the
Crown. If it had been intended that the Secretary of State
should be subject to section 75, that could have readily been
made clear, as it has been in s.76 (see page 435).
In these circumstances Parliament must be viewed as having
deliberately excluded the Secretary of State from the reach
of section 75.
(ii)
Consistently with (i) above, the NIO are not involved
in performing any duty in relation to Northern Ireland which
is relevant for present purposes. But even if this was wrong,
any complaint with regard to a failure to act consistently

with its own Equality Scheme should be dealt with by means


of the tailor-made provisions of Schedule 9 to the 1998 Act
(which refers to the subject of Enforcement of Duties and
from paragraph 10 deals with complaints of a failure by a
public authority to comply with an approved equality
scheme). This was the view which, subject to exceptions,
was taken by the Court of Appeal in Northern Ireland in Re
Neills Application [2006] NI 278: see, paragraph [26] for the
view of Girvan J (as he then was) at first instance and
paragraph [28] for the view of Kerr LCJ (as he then was)
speaking for the Court of Appeal. Notably, he said:
It would be anomalous if a scrutinising process could be
undertaken parallel to that for which the [Equality]
Commission has the express statutory remit. We have
concluded that this was not the intention of Parliament. The
structure of the statutory provisions is instructive in this
context. The juxtaposition of ss75 and 76 with contrasting
enforcing mechanisms for the respective obligations
contained in those provisions strongly favour the conclusion
that Parliament intended that, in the main at least, the
consequence of a failure to comply with s.75 would be
political, whereas the sanction of legal liability would be
appropriate to breaches of the duty contained in s.76.
This is not a case, argue the intended respondents, where
the court should permit the complaint put forward by the
applicants to be litigated by way of judicial review.
(iii)
Another reason why this issue should be rejected by
the court is the stage at which this issue is being raised, i.e.
prior to notification of the intention to withdraw from the EU.
On this aspect, it was argued that the Government is only at
the outset of a process which has a long way to go. At this
stage the outcome of the process is unclear with the
consequence that there would not be sufficient information
on which to base any impact assessment for the purpose of
section 75. In short, no sensible assessment could be made
at this stage. Support for rejecting a claim of this sort for
this reason could, it was submitted, be found in such cases

as R (Nash) v Barnet LBC (Capita plc and others, interested


parties) [2013] LGR 515 at [80]; R (Bailey) v Brent LBC
[2012] LGR 530 at paragraph [104]; and R (Fawcett Society)
v Chancellor of the Exchequer [2010] EWHC 3522 Admin at
paragraph [15].
[142] In a short submission the Attorney General for
Northern Ireland supported the intended respondents
position. In his written submission he put the matter thus:
section 75 does not have any application with respect to
the giving of notification by the Prime Minister, by the United
Kingdom government collectively, or by the Foreign
Secretary. Secondly, section 75 does not have any
application with respect to the content of cabinet discussions
engaged in by the Secretary of State. Thirdly, while section
75 applies to any policy that the Northern Ireland Office
would propose to adopt, it does not apply to interim advice.

The courts assessment


[143] The court agrees with the submissions of the
intended respondents and the Attorney-General for Northern
Ireland and would reject the applicants arguments on this
issue.
[144] Its primary reason for doing so is that it seems to the
court that the nature of the impugned decision viz the
notification of an intention on the part of the United Kingdom
as a Member State of the EU to withdraw from it cannot
properly be regarded as the carrying out a function relating
to Northern Ireland. In contrast, it seems to the court that
the function being carried out is a function relating to the
United Kingdom in its capacity as a Member State of the
European Union. It is a function being carried out by the
Prime Minister or the Secretary of State for Exiting the
European Union or, perhaps, the Secretary of State for

Foreign Affairs, and is not a function being carried out by the


Secretary of State for Northern Ireland or by the Northern
Ireland Office. Consequently, in the courts view, section 75
has no purchase on this issue and is not engaged.
[145] If the court is wrong about this issue and section 75
is engaged on the facts of this case, the court is of the view
that the claim now being advanced of breach of section 75 is
premature. This is because the point at which consultation,
screening and impact assessment may be viewed as being
required is yet to occur. There is strength in the intended
respondents point that the invocation of Article 50(2)
represents the start of a lengthy process which lies ahead
and that it would be much too early to seek to subject the
process to the sort of analysis referred to. The simple fact is
that the effects which would have to be considered are far
from clear at this stage.
[146] While the court need not decide the point, given the
conclusions it has already reached, it would be minded to
adopt the posture taken by the Court of Appeal in Neill,
which would mean that if this argument is to be addressed
the forum in which it should be addressed is by the use of
the procedure set out in Schedule 9 of the Northern Ireland
Act 1998. Recent cases on this issue in this court have
followed the general approach of the Court of Appeal in the
Neill case: see Re BMAs Application [2012] NIQB 90 and Re
McCotters Application [2014] NIQB 7.
Issue 5
[147] This issue arises from an amended amended Order
53 Statement in the McCord case and involves submissions
which go considerably wider than those already discussed.
Expressly it is contended that as a matter of law Article 50
cannot be triggered without the consent of the people of
Northern Ireland. This, it is asserted, is because the
Northern Ireland people are said to have a legitimate
expectation that there would be no change in the
constitution of Northern Ireland without their consent.

Withdrawal from the EU would, the argument contends, be


such a change.
[148] Mr Lavery QC for Mr McCord submitted that the
requirement for the consent of the people of Northern
Ireland derived from the terms of the Good Friday Agreement
and the Northern Ireland Act 1998 and that these sources
attenuated the operation of the doctrine of parliamentary
sovereignty.
[149] In support of this argument reference was made to
authorities which recognise the importance of the Good
Friday Agreement and the 1998 Act such as Robinson which
is referred to above at paragraph [43]. Such authorities
should be interpreted as introducing a federal structure
governing the relationship between the constituent parts of
the United Kingdom. Attention was also drawn to a number
of statements from senior Judges in the United Kingdom
which cast doubt on the authority of the traditional view of
parliamentary sovereignty. Such opinions had been
expressed both in court (see, for example, the views of Lord
Steyn and Lord Hope in R (Jackson and others) v Attorney
General [2005] 1 AC 262 at paragraphs [100][112] and
[104][107]) and out of court (see, for example, Lady Hale,
The Supreme Court in the Constitution, Legal Wales 2012).
In addition, reference was made to a number of academic
articles and to a number of Canadian constitutional cases. In
the former category, the court read with interest the work of
Mark Elliot entitled The Principle of Parliamentary
Sovereignty in Legal, Constitutional and Political
Perspective, which is found at Chapter 2 of The Changing
Constitution, 8th Edition edited by Jowell, Oliver and
OCinneide. In the latter category, the court considered
three Canadian constitutional cases: Reference Re Secession
of Quebec [1998] 2 R.C. 217; Reference Re Senate Reform
[2014] 1 S.C.R. 704 and Reference Re Supreme Court Act
[2014] I. S. C. R. 433.
[150] The intended respondents urged the court to reject
Mr Laverys submissions which, it was claimed, went well

beyond the immediate issue of the legal underpinning for


notification pursuant to Article 50(2).
[151]

The following specific submissions were made:

(a)
The status of Northern Ireland which formed the
subject matter of provision in the Good Friday Agreement
and the later section 1 of the 1998 Act was concerned with
the question only of whether Northern Ireland was either to
remain in the United Kingdom or join a united Ireland. This is
express in the relevant passages. There was, in contrast, no
reference anywhere to the need for the consent of the
people of Northern Ireland to any particular change in the
arrangements for government. Nor could any such
restriction be implied.
(b)
The sovereignty of the United Kingdom Parliament
was preserved in the new constitutional arrangements for
Northern Ireland, as is clear from the terms of section 5 (6)
of the 1998 Act. It followed that there was no legal
impediment of the sort contended for to the ability of the
United Kingdom to withdraw from the European Union.
(c)
No domestic authority had been cited by the
applicant to support the contention that it is now the case
that the consent of the people of Northern Ireland was
required for the purpose of withdrawing from the EU. The
constitutional relationship between the United Kingdom
Parliament and a devolved area had recently been the
subject of extensive discussion by the Supreme Court in the
case of Axa General Insurance Ltd and others v HM Advocate
and others [2012] 1 AC 868 and there had been no
suggestion that the devolved arrangements entailed any
such requirement or had the effect of limiting the power of
the United Kingdom legislature.
(d)
In the face of the existing and well recognised
constitutional provisions in respect of devolution there was
an absence of material which could establish a legitimate
expectation of the sort now contended for.

(e)
The doctrine of legitimate expectation was not
appropriate, in any event, to a situation where what was
being alleged was a commitment or promise to the
population or a section of the population at large. A
statement at a macro-level, especially in the realm of
politics, was not enforceable by the court: see, for examples,
the judgment of Richards LJ in R (Wheeler) v Office of the
Prime Minister and another [2008] EWHC 1409 (Admin) at
paragraph [44] and R v Secretary of State for Education and
Employment [2000] 1 WLR 1115 per Laws LJ at pages 1130113.
(f)
There could be no basis for suggesting the
Government does not remain committed to the peace
process.
The courts assessment
[152] The court is not aware of any specific provision in the
Good Friday Agreement or in the 1998 Act which confirms
the existence of the limitation which the applicant contends
for and which establishes a norm that any change to the
constitutional arrangements for the government of Northern
Ireland and, in particular, withdrawal by the United Kingdom
from the EU, can only be effected with the consent of the
people of Northern Ireland. Nor can the court identify
material which would cause it to imply any such limitation.
This is not, in the courts estimation, surprising as if such a
limitation exists, it would be reasonable to have expected
this to have been highlighted in the run up to the
referendum held in June of this year. The proposition for
which the applicant contends would, it seems, have the most
unusual result of requiring a second referendum on the issue
of EU membership to be held in Northern Ireland within a
short time of the people of Northern Ireland having gone to
the polls in respect of the same issue in a national
referendum where the national outcome was in favour of
withdrawal.

[153] While it is correct that section 1 of the 1998 Act does


deal with the question of the constitutional status of
Northern Ireland it is of no benefit to the applicant in respect
of the question now under consideration as it is clear that
this section (and the relevant portion of the Good Friday
Agreement) is considering the issue only in the particular
context of whether Northern Ireland should remain as part of
the United Kingdom or unite with Ireland. The very fact that
the issue is dealt with in this way, it seems to the court,
makes it unlikely that the applicants wider view as to the
meaning of these provisions can be correct.
[154] It further seems to the court that in this area it is
difficult to see how the court can overlook the importance of
the terms in which the 1998 Act are cast or to deviate from
what to date has been plain, namely that the United
Kingdom Parliament has retained to itself the ability to
legislate for Northern Ireland (see section 5(6)) without the
need to resort to any special procedure, save in so far as
that might be required for the purpose of section 1 of the
1998 Act (a matter about which the court need not dilate
upon).
[155] In the courts view, any suggestion that a legitimate
expectation can overwhelm the structure of the legislative
scheme is not viable.
[156] The court acknowledges that on the issue of the
doctrine of parliamentary sovereignty (in the Diceyan sense
that Parliament can make or unmake any law whatsoever
and that no-one can override or set aside the legislation of
Parliament) there are differing views about the extent to
which the doctrine may be reconciled with, in particular, the
rule of law, but this does not mean that a first level judge is
free to disregard the doctrine or sweep it away. If that task
is to be undertaken it will fall to the highest court to do so in
an appropriate case, as Lord Steyn in Jackson recognised.
Finally, while the academic writings and Canadian cases
demonstrated that there was no lack of possible approaches
to constitutional development this, in itself, is not a reason

why constitutional orthodoxy must be set aside.


[157] Essentially, for the reasons advanced by the
intended respondents the court rejects the applicants
submissions in this area.
Conclusion
[158] As the hearing has been a rolled up hearing the court
indicates that in respect of Issues 1, 2, 3 and 4 it is prepared
to grant leave but not in respect of Issue 5. In respect of all
issues the court dismisses the applications.
http://www.courtsni.gov.uk/en-GB/Judicial
%20Decisions/PublishedByYear/Documents/2016/%5B2016%5D
%20NIQB%2085/j_j_MAG10076Final.htm

OSCOLA and the supplement for citing international materials, which you
will need to consult in conjunction with OSCOLA Ireland, from the Oxford
Law
http://legalcitation.ie/wp-content/uploads/2016/04/OSCOLA-Ireland2016.pdf

CONSTITUTION OF THE DEMOCRATIC REPUBLIC OF EAST


TIMOR
PART I
FUNDAMENTAL PRINCIPLES
Section 1
(The Republic)
1.
The Democratic Republic of East Timor is a democratic,
sovereign, independent and unitary State based on the rule
of law, the will of the people and the respect for the dignity
of the human person.
2.
November 28th 1975 is the Day of Proclamation of
Independence of the Democratic Republic of East Timor.
Section 2

(Sovereignty and constitutionality)


1.
Sovereignty rests with the people, who shall exercise it
in the manner and form laid down in the Constitution.
2.
The State shall be subject to the Constitution and to the
law.
3.
The validity of the laws and other actions of the State
depend upon their compliance with the Constitution.
4.
The State shall recognise customary laws of East Timor,
subject to the Constitution and to any legislation dealing
specifically with customary law.
Section 3
(Citizenship)
1.
There shall be original citizenship and acquired
citizenship in the Democratic Republic of East Timor.
2.
The following citizens shall be considered original
citizens of East Timor, as long as they are born in the
national territory:
a)

Children of parents born in East Timor;

b)

Children of a father or mother born in East Timor;

c)
Children of incognito parents, stateless parents or
parents of unknown nationality;
d)
Children of a foreign father or mother who, being over
seventeen years old, declare their will to become East
Timorese nationals.
3.
The following citizens shall be considered original
citizens of East Timor, even if they are born in a foreign

country:
a)
Children of an East Timorese father or mother living
overseas;
b)
Children of an East Timorese father or mother serving
the State outside the country;
4.
Acquisition, loss and reacquisition of citizenship, as well
as its registration and proof, shall be regulated by law.
Section 4
(Territory)
1.
The territory of the Democratic Republic of East Timor
comprises the land surface, the maritime zone and the air
space demarcated by the national boundaries that
historically comprise the eastern part of Timor Island, the
enclave of Oecussi, the island of Ataro and the islet of Jaco.
2.
The extent and limits of territorial waters and the
exclusive economic zone, and the rights of East Timor to the
adjacent seabed and continental shelf shall be laid down in
the law.
3.
The State shall not alienate any part of the East
Timorese territory or the rights of sovereignty over the land,
without prejudice to rectification of borders.
Section 5
(Decentralisation)
1.
On matters of territorial organisation, the State shall
respect the principle of decentralisation of public
administration.
2.
The law shall determine and establish the
characteristics of the different territorial levels and the
administrative competencies of the respective organs.

3.
Oecussi Ambeno and Ataro shall enjoy special
administrative and economic treatment.
Section 6
(Objectives of the State)
The fundamental objectives of the State shall be:
a)
To defend and guarantee the sovereignty of the
country;
b)
To guarantee and promote fundamental rights and
freedoms of the citizens and the respect for the principles of
the democratic State based on the rule of law;
c)
To defend and guarantee political democracy and
participation of the people in the resolution of national
problems;
d)
To guarantee the development of the economy and the
progress of science and technology;
e)
To promote the building of a society based on social
justice, by establishing material and spiritual welfare of the
citizens;
f)
To protect the environment and to preserve natural
resources;
g)
To assert and value the personality and the cultural
heritage of the East Timorese people;
h)
To promote the establishment and the development of
relations of friendship and co-operation among all Peoples
and States;
i)
To promote the harmonious and integrated
development of the sectors and regions and the fair

distribution of the national product;


j)
To promote an effective equality of opportunities
between women and men.
Section 7
(Universal Suffrage and multi-party system)
1.
The people shall exercise the political power through
universal, free, equal, direct, secret and periodic suffrage
and through other forms laid down in the Constitution.
2.
The State shall value the contribution of political parties
for the organised expression of the popular will and for the
democratic participation of the citizen in the governance of
the country.
Section 8
(International Relations)
1.
On matters of international relations, the Democratic
Republic of East Timor shall govern itself by the principles of
national independence, the right of the Peoples to selfdetermination and independence, the protection of human
rights, the mutual respect for sovereignty, territorial integrity
and equality among States and the non-interference in
domestic affairs of other States.
2.
The Democratic Republic of East Timor shall establish
relations of friendship and co-operation with all other
peoples, aiming at the peaceful settlement of conflicts, the
general, simultaneous and controlled disarmament, the
establishment of a system of collective security and
establishment of a new international economic order capable
of ensuring peace and justice in the relations among
peoples.
3.

The Democratic Republic of East Timor shall maintain

privileged ties with the countries whose official language is


Portuguese.
4.
The Democratic Republic of East Timor shall maintain
special ties of friendship and co-operation with its
neighbouring countries and the countries of the region.
Section 9
(International law)
1.
The legal system of East Timor shall adopt the general
or customary principles of international law.
2.
Rules provided for in international conventions, treaties
and agreements shall apply in the internal legal system of
East Timor following their approval, ratification or accession
by the respective competent organs and after publication in
the official gazette.
3.
All rules that are contrary to the provisions of
international conventions, treaties and agreements applied
in the internal legal system of East Timor shall be invalid.
Section 10
(Solidarity)
1.
The Democratic Republic of East Timor shall extend its
solidarity to the struggle of the peoples for national
liberation.
2.
The Democratic Republic of East Timor shall grant
political asylum, in accordance with the law, to foreigners
persecuted as a result of their struggle for national and
social liberation, defence of human rights, democracy and
peace.
Section 11
(Valorisation of Resistance)

1.
The Democratic Republic of East Timor acknowledges
and values the secular resistance of the Maubere People
against foreign domination and the contribution of all those
who fought for national independence.
2.
The State acknowledges and values the participation of
the Church in the process of national liberation of East Timor.
3.
The State shall ensure special protection to wardisabled, orphans and other dependants of those who
dedicated their lives to the struggle for independence and
national sovereignty, and shall protect all those who
participated in the resistance against the foreign occupation,
in accordance with the law.
4.
The law shall define the mechanisms for rendering
tribute to the national heroes.
Section 12
(Relationship between the State and religious
denominations)
1.

There shall be no official religion of the State.

2.
The State shall respect the different religious
denominations, which are free in their organisation and in
the exercise of their own activities, to take place in due
observance of the Constitution and the law.
3.
The State shall promote the cooperation with the
different religious denominations that contribute to the wellbeing of the people of East Timor.
4.
The religious denominations have the right to possess
and to acquire assets for the achievement of their
objectives.
Section 13
(Official languages and national languages)

1.
Tetum and Portuguese shall be the official languages in
the Democratic Republic of East Timor.
2.
Tetum and the other national languages should be
valued and developed by the State.
Section 14
(National symbols)
1.
The national symbols of the Democratic Republic of
East Timor shall be the flag, the emblem and the national
anthem.
2.
The emblem and the national anthem shall be approved
by law.
Section 15
(National Flag)
1.
The National Flag is rectangular and is formed by two
isosceles triangles, the bases of which are overlapping. One
triangle is black and its height is equal to one-third of the
length overlapped to the yellow triangle, whose height is
equal to half the length of the Flag. In the centre of the black
triangle there is a white star of five ends, meaning the light
that guides. The white star has one of its ends turned
towards the upper right end of the flag. The remaining part
of the flag is purple-red.
2.

The colours mean:

Golden-yellow the wealth of the country;


Black the obscurantism that needs to be overcome;
Purple-red the struggle for national liberation;
White peace.
PART II

FUNDAMENTAL RIGHTS, DUTIES, FREEDOMS AND


GUARANTEES
TITLE I
GENERAL PRINCIPLES
Section 16
(Universality and Equality)
1.
All citizens are equal before the law, shall exercise the
same rights and shall be subject to the same duties.
2.
No one shall be discriminated against on grounds of
colour, race, marital status, gender, ethnical origin, social or
economic status, political or ideological convictions, religion,
education and physical or mental condition.
Section 17
(Equality between women and men)
Women and men shall have the same rights and duties in all
areas of political, economic, social, cultural and family life.
Section 18
Child protection
1.
Children shall be entitled to special protection by the
family, the community and the State, particularly against all
forms of abandonment, discrimination, violence, oppression,
sexual abuse and exploitation.
2.
Children shall enjoy all rights that are universally
recognised, as well as all those that are enshrined in
international conventions normally ratified or approved by
the State.

3.
Every child born in or outside the wedlock shall enjoy
the same rights and social protection.
Section 19
(Youth)
1.
The State shall promote and encourage youth initiatives
towards the consolidation of national unity, reconstruction,
defence and development of the country.
2.
The State shall promote education, health and
vocational training for the youth as may be practicable.
Section 20
(Old Age)
1.
Every old age citizen has the right to special protection
by the State.
2.
The old age policy entails measures of economic, social
and cultural nature designed to provide the elderly with
opportunities for personal achievement through active and
signifying participation in the community.
Section 21
(Disabled citizen)
1.
A disabled citizen shall enjoy the same rights and shall
be subject to the same duties as all other citizens, except for
the rights and duties which he or she is unable to exercise or
fulfil due to his or her disability.
3.
The State shall promote the protection of disabled
citizens as may be practicable and in accordance with the
law.
Section 22
(East Timorese citizens overseas)

East Timorese citizens who are or live overseas shall enjoy


protection by the State for the exercise of their rights and
shall be subject to duties not incompatible with their
absence from the country.
Section 23
(Interpretation of fundamental rights)
Fundamental rights enshrined in the Constitution shall not
exclude any other rights provided for by the law and shall be
interpreted in accordance with the Universal Declaration of
Human Rights.
Section 24
(Restrictive laws)
1.
Restriction of rights, freedoms and guarantees can only
be imposed by law in order to safeguard other
constitutionally protected rights or interests and in cases
clearly provided for by the Constitution.
2.
Laws restricting rights, freedoms and guarantees have
necessarily a general and abstract nature and may not
reduce the extent and scope of the essential contents of
constitutional provisions and shall not have a retroactive
effect.
Section 25
(State of exception)
1.
Suspension of the exercise of fundamental rights,
freedoms and guarantees shall only take place if a state of
siege or a state of emergency has been declared as provided
for by the Constitution.
2.
A state of siege or a state of emergency shall only be
declared in case of effective or impending aggression by a
foreign force, of serious disturbance or threat of serious

disturbance to the democratic constitutional order, or of


public disaster.
3.
A declaration of a state of siege or a state of
emergency shall be substantiated, specifying rights,
freedoms and guarantees the exercise of which is to be
suspended.
4.
A suspension shall not last for more than thirty days,
without prejudice of possible justified renewal, when strictly
necessary, for equal periods of time.
5.
In no case shall a declaration of a state of siege affect
the right to life, physical integrity, citizenship, nonretroactivity of the criminal law, defence in a criminal case
and freedom of conscience and religion.
6.
Authorities shall restore constitutional normality as
soon as possible.
Section 26
(Access to courts)
1.
Access to courts is guaranteed to all for the defence of
their legally protected rights and interests.
2.
Justice shall not be denied for insufficient economic
means.
Section 27
(Ombudsman)
1.
The Ombudsman shall be an independent organ in
charge to examine and seek to satisfy citizens complaints
against public bodies, certify the conformity of the acts with
the law, prevent and initiate whole process to remedy
injustice.
2.

Citizens may present complaints concerning acts or

omissions on the part of public bodies to the Ombudsman,


who shall undertake a review, without power of decision, and
shall forward recommendations to the competent organs as
deemed necessary.
3.
The Ombudsman shall be appointed by the National
Parliament through absolute majority votes of its members
for a term of office of four years.
4.
The activity the Ombudsman shall be independent from
any means of grace and legal remedies as laid down in the
Constitution and the law.
5.
Administrative organs and public servants shall have
the duty to collaborate with the Ombudsman.
Section 28
(Right to resistance and self-defence)
1.
Every citizen has the right to disobey and to resist
illegal orders or orders that affect their fundamental rights,
freedoms and guarantees.
2.
The right to self-defence is guaranteed to all, in
accordance with the law.
TITLE II
PERSONAL RIGHTS, FREEDOMS AND GUARANTEES
Section 29
(Right to life)
1.

Human life is inviolable.

2.
The State shall recognise and guarantee the right to
life.
3.

There shall be no death penalty in the Democratic

Republic of East Timor.


Section 30
(Right to personal freedom, security and integrity)
1.
Every one has the right to personal freedom, security
and integrity.
2.
No one shall be arrested or detained, except under the
terms clearly provided for by applicable law, and the order of
arrest or detention should always be presented for
consideration by the competent judge within the legal
timeframe.
3.
Every individual who loses his or her freedom shall be
immediately informed, in a clear and precise manner, of the
reasons for his or her arrest or detention as well as of his or
her rights, and allowed to contact a lawyer, directly or
through a relative or a trusted person.
4.
No one shall be subjected to torture and cruel, inhuman
or degrading treatment.
Section 31
(Application of criminal law)
1.
No one shall be subjected to trial, except in accordance
with the law.
2.
No one shall be tried and convicted for an act that does
not qualify in the law as a criminal offence at the moment it
was committed, nor endure security measures the provisions
of which are not clearly established in previous law.
3.
Penalties or security measures not clearly provided for
by law at the moment the criminal offence was committed
shall not be enforced.
4.

No one shall be tried and convicted for the same

criminal offence more than once.


5.
Criminal law shall not be enforced retroactively, except
if the new law is in favour of the accused.
6.
Anyone who has been unjustly convicted has the right
to a fair compensation in accordance with the law.
Section 32
(Limits on sentences and security measures)
1.
There shall be no life imprisonment nor sentences or
security measures lasting for unlimited or indefinite period of
time in the Democratic Republic of East Timor.
2.
In case of danger as a result of mental illness, security
measures may be successively extended by judicial decision.
3.

Criminal liability is not transmissible.

4.
Persons who are subjected, on conviction, to a sentence
or a security measure involving loss of freedom remain
entitled to their fundamental rights, subject to the limitations
that necessarily derive from that conviction and from the
requirements for its enforcement.
Section 33
(Habeas corpus)
1.
Everyone who illegally loses his or her freedom has the
right to apply for habeas corpus.
2.
An application for habeas corpus shall be made by the
detainee or by any other person in the exercise of his or her
civil rights, in accordance with the law.
3.
The court shall rule on the application for habeas
corpus within 8 days at a hearing in the presence of both
parties.

Section 34
(Guarantees in criminal proceedings)
1.
Everyone charged with an offence is presumed innocent
until convicted.
2.
An accused person has the right to select, and be
assisted by, a lawyer at all stages of the proceedings and the
law shall determine the circumstances for which the
presence of the lawyer is mandatory.
3.
Every individual is guaranteed the inviolable right of
hearing and defence in criminal proceedings.
4.
Evidence is of no effect if obtained by torture, coercion,
infringement of the physical or moral integrity of the
individual, or wrongful interference with private life, the
home, correspondence or other forms of communication.
Section 35
(Extradition and expulsion)
1.
Extradition shall only take place following a court
decision.
2.

Extradition on political grounds is prohibited.

3.
Extradition in respect of offences punishable, under the
law of the requesting State, by death penalty or life
imprisonment or whenever there are grounds to assume that
the person to be extradited may be subjected to torture and
inhuman, degrading and cruel treatment, shall not be
permitted.
4.
An East Timorese national shall not be expelled or
expatriated from the national territory.
Section 36

(Right to honour and privacy)


Every individual has the right to honour, good record
and reputation, protection of his or her public image and
privacy of his or her personal and family life.
Section 37
(Inviolability of home and correspondence)
1.
Any person's home and the privacy of his or her
correspondence and other means of private communication
are inviolable, except in cases provided for by law as a result
of criminal proceedings.
2.
A person's home shall not be entered against his or her
will, except under the written order of a competent judicial
authority and in the cases and manner prescribed by law.
3.
Entry into any person's home at night against his or her
will is clearly prohibited, except in case of serious threat to
life or physical integrity of somebody inside the home.
Section 38
(Protection of personal data)
1.
Every citizen has the right to access personal data
stored in a computer system or entered into mechanical or
manual records regarding him or her, and he or she may
require correction and up-date thereof and has the right to
know their purpose.
2.
The law shall determine the concept of personal data,
as well as the conditions applicable to the processing
thereof.
3.
The processing of personal data on private life, political
and philosophical convictions, religious faith, party or trade
union membership and ethnical origin, without the consent
of the interested person, is prohibited.

Section 39
(Family, marriage and maternity)
1.
The State shall protect the family as the societys basic
unit and a condition for the harmonious development of the
individual.
2.

Every one has the right to establish and live in a family.

3.
Marriage shall be based upon free consent by the
parties and on terms of full equality of rights between
spouses, in accordance with the law.
4.
Maternity shall be dignified and protected, and special
protection shall be guaranteed to all women during
pregnancy and after delivery and working women shall have
the right to be exempted from the workplace for an
adequate period before and after delivery, without loss of
remuneration or any other benefits, in accordance with the
law.
Section 40
(Freedom of speech and information)
1.
Every citizen has the right to freedom of speech and
the right to inform and be informed impartially.
2.
The exercise of freedom of speech and information shall
not be limited by any sort of censorship.
3.
The exercise of rights and freedoms referred to in this
Section shall be regulated by law based on the imperative of
respect for the Constitution and the dignity of the human
person.
Section 41
(Freedom of the press and mass media)

1.
Freedom of the press and other mass media is
guaranteed.
2.
Freedom of the press shall comprise, namely, the
freedom of speech and creativity for journalists, the access
to information sources, editorial freedom, protection of
independence and professional confidentiality, and the right
to create newspapers, publications and other means of
broadcasting.
3.

The monopoly on the mass media shall be prohibited.

4.
The State shall guarantee the freedom and
independence of the public mass media from political and
economic powers.
5.
The State shall guarantee the existence of a public
radio and television service that is impartial in order to, interalia, protect and disseminate the culture and the traditional
values of the Democratic Republic of East Timor and
guarantee opportunities for the expression of different lines
of opinion.
6.
Radio and television stations shall operate only under a
licence, in accordance with the law.
Section 42
(Freedom to assemble and demonstrate)
1.
Every citizen is guaranteed the freedom to assemble
peacefully and unarmed, without a need for prior
authorisation.
2.
Everyone is recognised the right to demonstrate in
accordance with the law.
Section 43
(Freedom of association)
1.

Every citizen shall enjoy freedom of association

provided that the association is not intended to promote


violence and is in accordance with the law.
2.
No one shall be compelled to join an association or to
remain in it against his or her will.
3.
The establishment of armed, military or paramilitary
associations, including organisations of a racist or
xenophobic nature or that promote terrorism, shall be
prohibited.
Section 44
(Freedom of movement)
1.
Every citizen has the right to move freely and to settle
anywhere in the national territory.
2.
Every citizen is guaranteed the right to emigrate freely
and to return to the country.
Section 45
(Freedom of conscience, religion and worship)
1.
Every person is guaranteed the freedom of conscience,
religion and worship and the religious denominations are
separated from the State.
2.
No one shall be persecuted or discriminated against on
the basis of his or her religious convictions.
3.
The right to be a conscientious objector shall be
guaranteed in accordance with the law.
4.
Freedom to teach any religion in the framework of the
respective religious denomination is guaranteed.
Section 46
(Right to political participation)

1.
Every citizen has the right to participate in the political
life and in the public affairs of the country, either directly or
through democratically elected representatives.
2.
Every citizen has the right to establish and to
participate in political parties.
3.
The State shall value the contribution of the political
parties to the organised expression of the will of the people
and to the democratic participation of the citizen in the
governance of the country.
4.
The establishment and organisation of political parties
shall be regulated by law.
Section 47
(Right to vote)
1.
Every citizen over the age of seventeen has the right to
vote and to be elected.
2.
The exercise of the right to vote is personal and
constitutes a civic duty.
Section 48
(Right to petition)
Every citizen has the right to submit, individually or jointly
with others, petitions, complaints and claims to organs of
sovereignty or any authority for the purpose of defending his
or her rights, the Constitution, the law or general interests.
Section 49
(Defence of Sovereignty)
1.
Every citizen has the right and the duty to contribute
towards the defence of independence, sovereignty and
territorial integrity of the country.

2.
Serving in the army shall take place in accordance with
the law.
TITLE III
ECONOMIC, SOCIAL AND CULTURAL RIGHTS AND DUTIES
Section 50
(Right to work)
1.
Every citizen, regardless of gender, has the right and
the duty to work and to choose freely his or her profession.
2.
The worker has the right to labour safety and hygiene,
remuneration, rest and vacation.
3.
Dismissal without just cause or on political, religious
and ideological grounds is prohibited.
4.
Compulsory work, without prejudice to the cases
provided for under penal legislation, is prohibited.
5.
The State shall promote the establishment of cooperatives of production and shall lend support to household
businesses as sources of employment.
Section 51
(Right to strike and prohibition of lock-out)
1.
Every worker has the right to resort to strike, the
exercise of which shall be regulated by law.
2.
The law shall determine the conditions under which
services are provided, during a strike, that are necessary for
the safety and maintenance of equipment and facilities, as
well as minimum services that are necessary to meet
essential social needs.

3.

Lock-out is prohibited.

Section 52
(Trade union freedom)
1.
Every worker has the right to form or join trade unions
and professional associations in defence of his or her rights
and interests.
2.
Trade union freedom is sub-divided, namely, into
freedom of establishment, freedom of membership and
freedom of organisation and internal regulation.
3.
Trade unions and trade union associations shall be
independent of the State and the employers.
Section 53
(Consumer rights)
1.
Consumers have the right to goods and services of
good quality, to truthful information and protection of their
health, safety and economic interests, and to reparation for
damages.
2.
Advertising shall be regulated by law, and all forms of
concealed, indirect or misleading advertising are prohibited.
Section 54
(Right to private property)
1.
Every individual has the right to private property and
can transfer it during his or her lifetime or on death, in
accordance with the law.
2.
Private property should not be used to the detriment of
its social purpose.
3.
Requisitioning and expropriation of property for public
purposes shall only take place following compensation in

accordance with the law.


4.
Only national citizens have the right to ownership of
land.
Section 55
(Obligations of the Taxpayer)
Every citizen with a certified income has the duty to pay tax
in order to contribute to public revenues.
Section 56
(Social security and assistance)
1.
Every citizen is entitled to social assistance and security
in accordance with the law.
2.
The State shall promote, in accordance with its national
resources, the establishment of a social security system.
3.
The State shall support and supervise the activity and
functioning of institutions of social solidarity and other nonprofit institutions of recognised public interest, in accordance
with the law.
Section 57
(Health)
1.
The State shall recognise the right of every citizen to
health and medical care.
2.
The State shall promote the establishment of a national
health service that is universal and general. The national
health service shall be free of charge in accordance with the
possibilities of the State and in conformity with the law.
3.
The national health service shall have, as much as
possible, a decentralised participatory management.

Section 58
(Housing)
Everyone has the right to a house, both for himself or herself
and for his or her family, of adequate size that meets
satisfactory standards of hygiene and comfort and preserves
personal intimacy and family privacy.
Section 59
(Education and culture)
1.
The State shall recognise and guarantee that every
citizen has the right to education and culture, and it is
incumbent upon it to promote the establishment of a public
system of universal and compulsory basic education that is
free of charge in accordance with its possibilities and in
conformity with the law.
2.
Everyone has the right to equal opportunities for
education and vocational training.
3.
The State shall recognise and supervise private and cooperative education.
4.
The State should ensure the access of every citizen, in
accordance to their abilities, to the highest levels of
education, scientific research and artistic creativity.
5.
Everyone has the right to cultural enjoyment and
creativity and the duty to preserve, protect and value
cultural heritage.
Section 60
(Intellectual Property)
The State shall guarantee and protect the creation,
production and commercialisation of literary, scientific and
artistic work, including the legal protection of copyrights.

Section 61
(Environment)
1.
Everyone has the right to a humane, healthy, and
ecologically balanced environment and the duty to protect it
and improve it for the benefit of the future generations.
2.
The State shall recognise the need to preserve and
rationalise natural resources.
3.
The State should promote, in accordance with its
capacities, actions aimed at protecting the environment and
safeguarding the sustainable development of the economy.
PART III
ORGANIZATION OF POLITICAL POWER
TITLE I
GENERAL PRINCIPLES
Section 62
(Source and exercise of political power)
Political power belongs to the people and is exercised in
accordance with the terms of the Constitution.
Section 63
(Participation by citizens in political life)
1.
Direct and active participation by men and women in
political life is a requirement of, and a fundamental
instrument for consolidating, the democratic system.
2.
The law shall promote equality in the exercise of civil
and political rights and non-discrimination on the basis of
gender for access to political positions.

Section 64
(Principle of Renewal)
No one shall hold any political office for life, or for indefinite
periods of time.
Section 65
(Elections)
1.
Elected organs of sovereignty and of local government
shall be chosen by free, direct, secret, personal and regular
universal suffrage.
2.
Registration of voters shall be compulsory and officially
initiated, single and universal, to be up-dated for each
election.
3.
Electoral campaigns shall be governed in accordance
with the following principles:
a)
Freedom to canvass;
b)
Equality of opportunity and treatment for all
candidacies;
c)
Impartiality towards candidacies on the part of public
bodies;
d)
Transparency and supervision of electoral expenses.
4. Conversion of the votes into mandates shall observe the
principle of proportional representation;
5.

The electoral process shall be regulated by law.

Article 66
(Referendum)
1.
Voters who are registered in the national territory may
be called upon to express their opinions in a referendum on
issues of relevant national interest.
2.

A referendum shall be called by the President of the

Republic, following a proposal by one third, and deliberation


approved by a two thirds majority, of the Members of the
National Parliament, or following a well-founded proposal by
the Government.
3.
Matters falling under the exclusive competence of the
Parliament, the Government and the Courts as defined by
the Constitution shall not be the subject of a referendum.
4.

The process of a referendum shall be defined by law.

Section 67
(Organs of Sovereignty)
The organs of sovereignty shall comprise the President of the
Republic, the National Parliament, the Government and the
Courts.
Section 68
(Incompatibilities)
1.
The holding of the offices of President of the Republic,
Speaker of the National Parliament, President of the Supreme
Court of Justice, President of the High Administrative, Tax
and Audit Court, Attorney-General and member of
Government shall be incompatible with one another.
2.

The law shall define other incompatibilities.

Section 69
(Principle of separation of powers)
Organs of sovereignty, in their reciprocal relationship and
exercise of their functions, shall observe the principle of
separation and interdependence of powers established in the
Constitution.
Section 70
(Political parties and the right of opposition)

1.
Political parties shall participate in organs of political
power in accordance with their democratic representation
based on direct and universal suffrage.
2.
The right of political parties to democratic opposition,
as well as the right to be informed regularly and directly on
the progress of the main issues of public interest, shall be
recognised.
Section 71
(Administrative organisations)
1.
The central government should be represented at the
different administrative levels of the country.
2.
Oecussi Ambeno shall be governed by a special
administrative policy and economic regime.
3.

Ataro shall enjoy an appropriate economic status.

4.
The political and administrative organisation of the
territory of the Democratic Republic of East Timor shall be
defined by law.
Article 72
(Local government)
1.
Local government is constituted by corporate bodies
vested with representative organs, with the objective of
organising the participation by citizens in solving the
problems of their own community and promoting local
development without prejudice to the participation by the
State.
2.
The organisation, competence, functioning and
composition of the organs of local government shall be
defined by law.

Section 73
(Publication of legislation and decisions)
1.
Legislation and decisions shall be published by the
organs of sovereignty in the official gazette.
2.
Failure to publish any of the legislation or decisions
specified in item 1 above or decisions of a general nature
taken by the organs of sovereignty or local government shall
render them null and void.
3.
The form of publication of other legislation and
decisions, and the consequences of the failure to do so, shall
be determined by law.
TITLE II
PRESIDENT OF THE REPUBLIC
CHAPTER I
STATUS, ELECTION AND APPOINTMENT
Section 74
(Definition)
1.
The President of the Republic is the Head of State and
the symbol and guarantor of national independence and
unity of the State and of the smooth functioning of
democratic institutions.
2.
The President of the Republic is the Supreme
Commander of the Defence Force.
Section 75
(Eligibility)
1.
To stand as presidential candidates, East Timorese
citizens should meet cumulatively the following
requirements:

a)

original citizenship;

b)

at least 35 (Thirty -five) years of age;

c)

to be in possession of his or her full faculties;

d)

to be proposed by a minimum of five thousand voters.

2.
The President of the Republic has a term of office of 5
years and shall cease his or her functions with the swearingin of the new President-elect.
3.
The President of the Republic's term of office may be
renewed only once.
Section 76
(Election)
1.
The President of the Republic shall be elected by
universal, free, direct, secret, and personal suffrage.
2.
The election of the President of the Republic shall be
conducted through the system based on the majority of valid
expressed votes, excluding blank votes.
3.
Where no candidate gets more than half of the votes, a
second round shall take place on the 30th day following the
first voting.
4.
Only the two candidates obtaining the highest number
of votes shall be eligible to stand in a run-off election,
provided they have not withdrawn their candidacies.
Section 77
(Inauguration and swearing-in)
1.
The President of the Republic shall be sworn in by the
Speaker of the National Parliament and shall be inaugurated
in public ceremony before the members of the National

Parliament and the representatives of the other organs of


sovereignty.
2.
The inauguration shall take place on the last day of the
term of office of the outgoing President or, in case of election
due to vacancy, on the eighth day following the publication
of the electoral results.
3.
At the swearing-in ceremony, the President of the
Republic shall take the following oath:
I swear on my honour to respect and enforce the
Constitution and the laws and dedicate all my energies to
the defence and consolidation of independence and national
unity.
Section 78
(Incompatibilities)
The President of the Republic shall not hold any other
political position or public office at the national level, and
under no circumstances shall he or she undertake private
assignments.
Section 79
(Criminal liability and Constitutional Obligations)
1.
The President of the Republic shall enjoy immunity in
the exercise of his or her functions.
2.
The President of the Republic shall be answerable
before the Supreme Court of Justice for crimes committed in
the exercise of his or her functions and for clear violation of
his or her constitutional obligations.
3.
It is the incumbent upon the National Parliament to
initiate the criminal proceedings, following a proposal made
by one-fifth, and deliberation approved by a two-third
majority, of its Members.

4.
The Plenary of the Supreme Court of Justice shall issue
a judgement within a maximum of 30 days.
5. Conviction shall result in forfeiture of office and
disqualification from re-election.
6. For crimes not committed in the exercise of his or her
functions, the President of the Republic shall also be
answerable before the Supreme Court of Justice, and
forfeiture of office shall only occur in case of sentence to
prison.
7. In the cases provided for under the previous item,
immunity shall be withdrawn at the initiative of the National
Parliament in accordance with provisions of item 2 of this
Section.
Section 80
(Absence)
1.
The President of the Republic shall not be absent from
the national territory without the previous consent of the
National Parliament or of its Standing Committee, if
Parliament is in recession.
2.
Failure to observe provision of item 1 above shall imply
forfeiture of the office, as provided for by the previous
Section.
3.
The President of the Republic's private visits not
exceeding fifteen days shall not require the consent of the
National Parliament. Nonetheless, the President of the
Republic should notify the National Parliament of such visits
in advance.
Section 81
(Resignation of Office)

1.
The President of the Republic may resign from office by
message addressed to the National Parliament.
2.
Resignation shall take effect once the message is made
known to the National Parliament without prejudice to its
subsequent publication in the official gazette.
3.
Where the President of the Republic resigns from office,
he or she shall not be eligible to stand for presidential
elections immediately after resignation nor in the regular
elections to be held after five years.
Section 82
(Death, resignation or permanent disability)
1.
In case of death, resignation or permanent disability of
the President of the Republic, his or her functions shall be
taken over on an interim basis by the Speaker of the
National Parliament, who shall be sworn in by the Speaker
a.i. of the National Parliament before the Members of the
National Parliament and representatives of the organs of
sovereignty.
2.
Permanent disability shall be declared by the Supreme
Court of Justice, which shall also have the responsibility to
confirm the death of the President of the Republic and the
vacancy of office resulting therefrom.
3.
The election of a new President of the Republic in case
of death, resignation or permanent disability should take
place within the subsequent ninety days, after certification
or declaration of death, resignation or permanent disability.
4.
The President of the Republic shall be elected for a new
term of office.
5.
In case of refusal by the President-elect to take office or
in case of his or her death or permanent disability, the
provisions of this Section shall apply.

Section 83
(Exceptional Cases)
1.
Where death, resignation or permanent disability occur
in the imminence of exceptional situations of war or
protracted emergency, or of an insurmountable difficulty of a
technical or material nature, to be defined by law,
preventing the holding of a presidential election by universal
suffrage as provided for by Section 76, the new President of
the Republic shall be elected by the Parliament from among
its members within the ninety subsequent days.
2.
In the cases referred to in the previous item, the
President-elect shall serve for the remainder of the
interrupted term and he or she can run for the new election.
Section 84
(Replacement and interim office)
1.
During temporary impediment of the President of the
Republic, the presidential functions shall be taken over by
the Speaker of National Parliament or, in case of impediment
of the latter, by his or her replacement.
2.
The parliamentary mandate of the Speaker of the
National Parliament or of his or her replacement shall be
automatically suspended over the period of time in which he
or she holds the office of President of the Republic on an
interim basis.
3.
The parliamentary functions of the replacing or interim
President of the Republic shall be temporarily taken over in
accordance with the Rules of Procedures of the National
Parliament.
CHAPTER II

COMPETENCIES
Section 85
(Competencies)
It is exclusively incumbent upon the President of the
Republic:
a)
To promulgate statutes and order the publication of
resolutions by the National Parliament approving
agreements and ratifying international treaties and
conventions;
b)
Exercise competencies inherent to the functions of
Supreme Commander of the Defence Force;
c)
To exercise the right of veto regarding any statutes
within 30 days from the date of their receipt;
d)
To appoint and swear in the Prime Minister designated
by the party or alliance of parties with the highest number
of members after consultation with political parties sitting in
the National Parliament;
e)
To request the Supreme Court of Justice to undertake
preventive appraisal and abstract review of the
constitutionality of the rules, as well as verification of
unconstitutionality by omission.
f)
To submit relevant issues of national interest to a
referendum as laid down in Section 66;
g)
To declare the state of siege or the state of emergency
following authorisation of the National Parliament, after
consultation with the Council of State, the Government and
the Supreme Council of Defence and Security;
h)
To declare war and make peace following a Government
proposal, after consultation with the Council of State and the

Supreme Council of Defence and Security under


authorisation of the National Parliament;
i)
To grant pardons and commute sentences after
consultation with the Government;
j)
To award honorary titles, decorations and merits in
accordance with the law.
Section 86
(Competencies with regard to other organs)
It is incumbent upon the President of the Republic, with
regard to other organs:
a)

To chair the Supreme Council of Defence and Security;

b)

To chair the Council of State;

c)
To set dates for presidential and legislative elections in
accordance with the Law;
d)
To request the convening of extraordinary sessions of
the National Parliament, whenever imperative reasons of
national interest so justify;
e)
To address messages to the National Parliament and the
country;
f)
To dissolve the National Parliament in case of a serious
institutional crisis preventing the formation of a government
or the approval of the State Budget and lasting more than
sixty days, after consultation with political parties sitting in
the Parliament and with the Council of State, on pain of
rendering the dissolution null and void, taking into
consideration provisions of Section 100;

g)
To dismiss the Government and remove the Prime
Minister from office after the National Parliament has
rejected his or her programme for two consecutive times.
h)
To appoint, swear in and remove Government Members
from office, following a proposal by the Prime-Minister, in
accordance with item 2, Section 106;
i)
To appoint two members for the Supreme Council of
Defence and Security;
j)
To appoint the President of the Supreme Court of Justice
and swear in the President of the High Administrative, Tax
and Audit Court;
k)
To appoint the Attorney-General for a term of four
years;
l)
To appoint and dismiss the Deputy Attorney-Generals in
accordance with item 6, Section 133;
m) To appoint and dismiss, following proposal by the
Government, the General Chief of Staff of the Defence Force,
the Deputy General Chief of Staff of the Defence Force, and
the Chiefs of Staff of the Defence Force, after consultation
with the General Chief of Staff regarding the latter two
cases;
n)

To appoint five Members for the Council of State;

o)
To appoint one member for the Superior Council the
Judiciary and for the Superior Council for the Public
Prosecution.
Section 87
(Competencies with regard to International Relations)
It is incumbent upon the President the Republic, in the field
of international relations:

a)
To declare war in case of effective or imminent
aggression and make peace, following proposal by the
Government, after consultation with the Supreme Council for
Defence and Security and following authorisation of the
National Parliament or of its Standing Committee.
b)
To appoint and dismiss ambassadors, permanent
representatives and special envoys, following proposal by
the Government;
c)
To receive credential letters and accredit foreign
diplomatic representatives;
d)
Conduct, in consultation with the Government, any
negotiation process towards the completion of international
agreements in the field of defence and security.
Section 88
(Promulgation and veto)
1.
Within thirty days after receiving any statute from the
National Parliament for the purpose of its promulgation as
law, the President of the Republic shall either promulgate the
statute or exercise the right of veto, in which case he or she,
based on substantive grounds, shall send a message to the
National Parliament requesting a new appraisal of the
statute.
2.
If, within ninety days, the National Parliament confirms
its vote by an absolute majority of its Members in full
exercise of their functions, the President of the Republic shall
promulgate the statute within eight days after receiving it.
3.
However, a majority of two-thirds of the Members
present shall be required to ratify statutes on matters
provided for in Section 95 where that majority exceeds an
absolute majority of the Members in full exercise of their
functions.

4.
Within forty days after receiving any statute from the
Government for the purpose of its promulgation as law, the
President of the Republic shall either promulgate the
instrument or exercise the right of veto, by way of a written
communication to the Government containing the reasons
for the veto.
Section 89
Powers of an interim President of the Republic
An interim President of the Republic does not have any of
the powers specified in following items f), g), h), i), j), k), l),
m), n) and o) of Section 86.
CHAPTER III
COUNCIL OF STATE
Section 90
(Council of State)
1.
The Council of State is the political advisory body of the
President of the Republic and shall be headed by him or
herself.
2.

The Council of State shall comprise:

a)
Former Presidents of the Republic who were not
removed from office;
b)

The Speaker of the National Parliament;

c)

The Prime Minister;

d)
Five citizens elected by the National Parliament in
accordance with the principle of proportional representation
and for the period corresponding to the legislative term,
provided that they are not members of the organs of

sovereignty.
e)
Five citizens designated by the President of the
Republic for the period corresponding to the term of office of
the President, provided that they are not members of the
organs of sovereignty.
Section 91
(Competence, organisation and functioning of the Council of
State)
1. It is incumbent upon the Council of State:
a)
Express its opinion on the dissolution of the National
Parliament;
b)

Express its opinion on the dismissal of the Government;

c)
Express its opinion on the declaration of war and the
making of peace;
d)
Express its opinion on any other cases set out in the
Constitution and advise the President of the Republic in the
exercise of his or her functions, as requested by the
President;
e)

To prepare and approve its Rules of Procedures;

2.
The meetings of the Council of State shall not be open
to the public.
3.
The organisation and functioning of the Council of State
shall be established by law.
TITLE III

NATIONAL PARLIAMENT
CHAPTER I
STATUS AND ELECTION
Section 92
(Definition)
The National Parliament is the organ of sovereignty of the
Democratic Republic of East Timor that represents all
Timorese citizens and is vested with legislative, fiscal and
political decision powers.
Section 93
(Election and composition)
1.
The National Parliament shall be elected by universal,
free, direct, equal, secret and personal suffrage.
2.
The National Parliament shall be made up of a minimum
of fifty-two and a maximum of sixty-five Members.
3.
The law shall establish the rules relating to
constituencies, eligibility conditions, nominations and
electoral procedures.
4.
Members of the National Parliament shall have a term
of office of five years.
Section 94
(Immunities)
1.
The Members of National Parliament shall not be held
liable for civil, criminal or disciplinary proceedings in regard
to votes and opinions expressed by them while performing
their functions.

2.
Parliamentary immunities may be withdrawn in
accordance with the Rules of Procedures of the National
Parliament.
CHAPTER II
COMPETENCE
Section 95
(Competence of the National Parliament)
1.
It is incumbent upon the National Parliament to make
laws on basic issues of the countrys domestic and foreign
policy.
2.
It is exclusively incumbent upon the National Parliament
to make laws on:
a)
The borders of the Democratic Republic of East Timor,
in accordance with Section 4;
b)
The limits of the territorial waters, of the exclusive
economic area and of the rights of East Timor to the
adjacent sea bed;
c)
National symbols, in accordance with item 2 of Section
14;
d)

Citizenship;

e)

Rights, freedoms and guarantees;

f)
The status and capacity of people, family law and
descent law;
g)

Territorial division;

h)

The electoral law and the referendum system;

i)

Political parties and associations;

j)

The status of Members of the National Parliament;

k)

The status of office holders in the organs of State;

l)

The bases for the education system;

m)

The bases for the health and social security system;

n)
The suspension of constitutional guarantees and the
declaration of the state of siege and the state of emergency;
o)

The Defence and Security policy;

p)

The tax policy;

q)

The budget system.

3.

It is also incumbent on the National Parliament:

a)
To ratify the appointment of the President of the
Supreme Court of Justice and of the High Administrative, Tax
and Audit Court;
b)
To deliberate on progress reports submitted by the
Government;
c)
To elect one member for the Superior Council for the
Judiciary and the Superior Council of the Public Persecution;
d)
To deliberate on the State Plan and Budget and the
execution report thereof;
e)

To monitor the execution of the State budget;

f)
To approve and denounce agreements and ratify
international treaties and conventions;

g)

To grant amnesty;

h)
To give consent to trips by the President of the Republic
in accordance with Section 80;
i)
To approve revisions of the Constitution by a majority of
two thirds of the Members of Parliament;
j)
To authorise and confirm the declaration of the state of
siege or the state of emergency;
k)
To propose to the President of the Republic the
submission to referendum of issues of national interest.
4.

It is also incumbent upon the National Parliament:

a)

To elect its Speaker and other members of the Chair;

b)

To elect five members for the Council of State;

c)

To prepare and approve its Rules of Procedure;

d)
To set up the Standing Committee and establish the
other parliamentary Committees.
Section 96
(Legislative authorisation)
1.
The National Parliament may authorise the Government
to make laws on the following matters:
a)
Definition of crimes, sentences, security measures and
respective prerequisites;
b)

Definition of civil and criminal procedure;

c)

Organisation of the Judiciary and status of magistrates;

d)
General rules and regulations for the public service, the
status of the civil servants and the responsibility of the
State;
e)
General bases for the organisation of public
administration;
f)

Monetary system;

g)

Banking and financial system;

h)
Definition of the bases for a policy on environment
protection and sustainable development;
i)
General rules and regulations for radio and television
broadcasting and other mass media;
j)

Civic or military service;

k)
General rules and regulations for requisition and
expropriation for public purposes;
l)
Means and ways of intervention, expropriation,
nationalisation and privatisation of means of production and
soils on grounds of public interest, as well as criteria for the
establishment of compensations.
2.
Laws on legislative authorisation shall define the
subject, sense, scope and duration of the authorisation,
which may be renewed.
3.
Laws on legislative authorisation shall not be used more
than once and shall lapse with the dismissal of the
Government, with the end of the legislative term or with the
dissolution of the National Parliament.
Section 97
(Legislative initiative )

1.

The power to initiate laws lies with:

a)

The Members of Parliament;

b)

The parliamentary groups;

c)

The Government.

2.
There shall be no submission of bills, draft legislation or
amendments involving, in any given fiscal year, any increase
in State expenditure or any reduction in State revenues
provided for in the Budget or Rectifying Budgets.
3.
Bills and draft legislation that have been rejected shall
not be re-introduced in the same legislative session in which
they have been tabled.
4.
Bills and draft legislation that have not been voted on
shall not need to be re-introduced in the ensuing legislative
session, except in case of end of the legislative term.
5.
Draft legislation shall lapse with the dismissal of the
Government.
Section 99
(Parliamentary appraisal of statutes)
1.
Statutes other than those approved under the exclusive
legislative powers of the Government may be submitted to
the National Parliament for appraisal, for purposes of
terminating their validity or for amendment, following a
petition of one-fifth of the Members of Parliament and within
thirty days following their publication. This timeframe shall
exclude the days when the functioning of the National
Parliament is suspended.
2.
The National Parliament may suspend, in part or in full,
the force of a statute until it is appraised.

3.
The suspension shall lapse after the National Parliament
has held 10 plenary meetings without taking a final decision.
4.
Where termination of validity is approved, the statute
shall cease to be in force from the date of the publication of
the resolution in the Official Gazette, and it shall not be
published again in the same legislative session.
5.
The process shall lapse if, after a statute has been
submitted for appraisal, the National Parliament takes no
decision on it, or, having decided to make amendments, it
does not approve a law to that effect before the
corresponding legislative session ends, provided 15 plenary
meetings have been held.
CHAPTER III
ORGANISATION AND FUNCTIONING
Section 100
(Legislative term)
1.
The legislative term shall comprise five legislative
sessions, and each legislative session shall have the duration
of one year.
2.
The regular period of functioning of the National
Parliament shall be defined by the Rules of Procedure.
3.
The National Parliament convenes on a regular basis
following notice by its Speaker.
4.
The National Parliament convenes on an extraordinary
basis whenever so deliberated by the Standing Committee,
at the request of one third of Members or following notice of
the President of the Republic with a view to addressing
specific issues.
5.

In case of dissolution, the elected National Parliament

shall commence a new legislative term, the length of which


shall be increased by the time needed to complete the
legislative session in progress at the date of the election.
Section 101
(Dissolution)
1.
The National Parliament shall not be dissolved during
the 6 months immediately following its election, during the
last half-year of the term of office of the President of the
Republic or during a state of siege or a state of emergency,
on pain of rendering the act of dissolution null and void.
2. The dissolution of the National Parliament does not affect
the continuance in office of its Members until the first
meeting of the National Parliament after the ensuing
election.
Section 102
(Attendance by Members of the Government)
1.
Members of the Government have the right to attend
plenary sessions of the National Parliament and may take
the floor as provided for in the rules of procedures.
2.
Sittings shall be fixed at which members of the
Government shall be present to answer questions from
Members of Parliament in accordance with the Rules of
Procedure.
3.
The National Parliament or its Committees may request
members of the Governments to take part in their
proceedings.
CHAPTER IV
STANDING COMMITTEE

Section 103
(Standing Committee)
1.
The Standing Committee shall sit when the National
Parliament is dissolved or in recession and in the other cases
provided for in the Constitution;
2.
The Standing Committee shall be presided over by the
Speaker of the National Parliament and shall be comprised of
Deputy Speakers and Parliament Members designated by the
parties sitting in the Parliament in accordance with their
respective representation.
3.

It is incumbent upon the Standing Committee:

a)
To follow-up the activities of the Government and the
Public Administration;
b)
To co-ordinate the activities of the Committees of the
National Parliament;
c)
To take steps for the convening of Parliament whenever
deemed necessary;
d)
To prepare and organise sessions of the National
Parliament;
e)
To give its consent regarding trips by the President of
the Republic in accordance with Section 80;
f)
To lead relations between the National Parliament and
similar parliaments and institutions of other countries;
g)
To authorise the declaration of the state of siege or the
state of emergency.
TITLE IV
GOVERNMENT

CHAPTER I
DEFINITION AND STRUCTURE
Section 104
(Definio)
The Government is the organ of sovereignty responsible for
conducting and executing the general policy of the country
and is the supreme organ of Public Administration.
Section 105
(Composition)
1.
The Government shall comprise the Prime Minister, the
Ministers and the Secretaries of State.
2.
The Government may include one or more Deputy
Prime Ministers and Deputy Ministers.
3.
The number, titles and competencies of ministries and
secretariats of State shall be laid down in a Government
statute.
Section 106
(Council of Ministers)
1.
The Council of Ministers shall comprise the Prime
Minister, the Deputy Prime Ministers, if any, and the
Ministers.
2.
The Council of Ministers shall be convened and chaired
by the Prime Minister.
3.
The Deputy Ministers, if any, and the Secretaries of
State may be required to attend meetings of the Council of
Ministers, without a right to vote.

CHAPTER II
FORMATION AND RESPONSIBILITY
Section 107
(Appointment)
1.
The Prime Minister shall be designated by the political
party or alliance of political parties with the highest number
of votes and shall be appointed by the President of the
Republic, after consultation with the political parties sitting in
the National Parliament.
2.
The remaining members of the Government shall be
appointed by the President of the Republic following proposal
by the Prime Minister.
Section 108
(Responsibility of the Government)
The Government shall be accountable to the President of the
Republic and to the National Parliament for conducting and
executing the domestic and foreign policy in accordance with
the Constitution and the law.

Section 109
(The Programme of the Government)
1.
Once appointed, the Government should develop its
programme, which should include the objectives and tasks
proposed, the actions to be taken and the main political
guidelines to be followed in the fields of government activity.
2.
Once approved by the Council of Ministers, the Prime
Minister shall, within a maximum of 30 days after
appointment of the Government, submit the Programme of
Government to the National Parliament for consideration.

Section 110
(Consideration of the Programme of Government by the
National Parliament)
1.
The Programme of the Government shall be submitted
to the National Parliament for consideration. Where the
National Parliament is not in session, its convening for this
purpose shall be mandatory.
2.
Debate on the programme of the Government shall not
exceed five days and, prior to its closing, any parliamentary
group may propose its rejection or the Government may
request the approval of a vote of confidence.
3.
Rejection of the programme of the Government shall
require an absolute majority of the Members in full exercise
of their functions.
Section 111
(Request for vote of confidence)
The Government may request the National Parliament to
take a vote of confidence on a statement of general policy or
on any relevant matter of national interest.
Section 112
(Vote of no confidence)
1.
The National Parliament may, following proposal by
one-quarter of the Members in full exercise of their functions,
pass a vote of no confidence on the Government with
respect to the implementation of its programme or any
relevant matter of national interest.
2.
Where a vote of no confidence is not passed, its
signatories shall not move another vote of no confidence
during the same legislative session.

Section 113
(Dismissal of the Government)
1.

The dismissal of the Government shall occur when:

a)

A new legislative term begins;

b)
The President of the Republic accepts the resignation of
the Prime Minister;
c)
The Prime Minister dies or is suffering from a
permanent physical disability;
d)
Its programme is rejected for the second consecutive
time;
e)

A vote of confidence is not passed;

f)
A vote of no confidence is passed by an absolute
majority of the Members in full exercise of their functions;
2.
The President of the Republic shall only dismiss the
Prime Minister in accordance with the cases provided for in
the previous item and when it is deemed necessary to
ensure the regular functioning of the democratic institutions,
after consultation with the Council of State.
Section 114
(Criminal liability of the members of Government)
1.
Where a member of the Government is charged with a
criminal offence punishable with a sentence of imprisonment
for more than two years, he or she shall be suspended from
his or her functions so that the proceedings can be pursued.
2.
Where a member of the Government is charged with a
criminal offence punishable with a sentence of imprisonment
for a maximum of two years, the National Parliament shall
decide whether or not that member of the Government shall

be suspended so that the proceedings can be pursued.


Section 115
(Immunities for members of the Government)
No member of the Government may be detained or
imprisoned without the permission of the National
Parliament , except for a felonious crime punishable with a
maximum sentence of imprisonment for more than two
years and in flagrante delicto.
CHAPTER III
COMPETENCIES
Section 116
(Competence of the Government)
1.

It is incumbent upon the Government:

a)
To define and implement the general policy of the
country, following its approval by the National Parliament;
b)
To guarantee the exercise of the fundamental rights and
freedoms of the citizens;
c)

To ensure public order and social discipline;

d)
To prepare the State Plan and the State Budget and
execute them following their approval by the National
Parliament;
e)

To regulate economic and social sector activities;

f)
To prepare and negotiate treaties and agreements and
enter into, approve, accede and denounce international
agreements which do not fall under the competence of the

National Parliament or of the President of the Republic;


g)
To define and implement the foreign policy of the
country;
h)
To ensure the representation of the Democratic
Republic of East Timor in the international relations;
i)

To lead the social and economic sectors of the State;

j)

To lead the labour and social security policy;

k)
To guarantee the defence and consolidation of the
public domain and the property of the State;
l)
To lead and co-ordinate the activities of the ministries
as well as the activities of the remaining institutions
answerable to the Council of Ministers;
m) To promote the development of the co-operative sector
and the support for household production;
n)

To support private enterprise initiatives;

o)
To take actions and make all the arrangements
necessary to promote economic and social development and
to meet the needs of the Timorese people;
p)
To exercise any other competencies as provided by the
Constitution and the law.
2.
It is also incumbent upon the Government in relation
with other organs :
a)
To submit bills and draft resolutions to the National
Parliament;
b)
To propose to the President of the Republic the
declaration of war or the making of peace;

c)
To propose to the President of the Republic the
declaration of the state of siege or the state of emergency;
d)
To propose to the President of the Republic the
submission to referendum of relevant issues of national
interest;
e)
To propose to the President of the Republic the
appointment of ambassadors, permanent representatives
and special envoys;
3.
The Government has exclusive legislative powers on
matters concerning its own organisation and functioning, as
well as on the direct and indirect management of the State.
Section 117
(Competencies of the Council of Ministers)
It is incumbent upon the Council of Ministers:
a)
To define the general guidelines of the government
policy as well as those for its implementation;
b)
To deliberate on a request for a vote of confidence from
the National Parliament;
c)

To approve bills and draft resolutions;

d)
To approve statutes, as well as international
agreements that are not required to be submitted to the
National Parliament;
e)
To approve actions by the Government that involve an
increase or decrease in public revenues or expenditures;
f)

To approve plans.

Section 118

(Competencies of members of the Government)


1.

It is incumbent upon the Prime Minister:

a)

To be the Head of Government;

b)

To chair the Council of Ministers;

c)
To lead and guide the general policy of the Government
and co-ordinate the activities of all Ministers, without
prejudice to the direct responsibility of each Minister for his
or her respective governmental department.
d)
To keep the President of the Republic informed on
matters of domestic and foreign policy of the Government;
e)
To perform other duties conferred by the Constitution
and the law.
2.

It is incumbent upon the Ministers:

a)
To implement the policy defined for their respective
Ministries;
b)
To ensure relations between the Government and the
other organs of the State in the area of responsibility of their
respective Ministries.
3. Government statutes shall be signed by the Prime
Minister and the Ministers in charge of the respective subject
matter.
TITLE V
COURTS
CHAPTER I
COURTS AND THE JUDICIARY

Section 119
(Jurisdiction)
1.
Courts are organs of sovereignty with competencies to
administer justice in the name of the people.
2.
In performing their functions, the courts shall be
entitled to the assistance of other authorities.
3.
Court decisions shall be binding and shall prevail over
the decisions of any other authority.
Section 120
(Independence)
Courts are independent and subject only to the Constitution
and the law.
Section 121
Review of unconstitutionality
The courts shall not apply rules that contravene the
Constitution or the principles contained therein.
Section 121
(Judges)
1.
Jurisdiction lies exclusively with the judges installed in
accordance with the law.
2.
In performing their functions, judges are independent
and owe obedience only to the Constitution, the law and to
their own conscience.
3.
Judges have security of tenure and, unless otherwise
provided for by law, may not be transferred, suspended,
retired or removed from office.
4.
To guarantee their independence, judges may not be
held liable for their judgements and decisions, except in the
circumstances provided for by law.
5.
The law shall regulate the judicial organisation and the

status of the judges of the courts of law.


Section 123
(Exclusiveness)
Judges in office may not perform any other functions,
whether public or private, other than teaching or legal
research, in accordance with the law.
Section 124
Categories of courts
1.
There shall be the following categories of courts in the
Democratic Republic of East Timor:
a)
The Supreme Court of Justice and other courts of law;
b)
The High Administrative, Tax and Audit Court and other
administrative courts of first instance;
c)
Military Courts.
2.
Courts of exception shall be prohibited and there shall
be no special courts to judge certain categories of criminal
offence.
3.
There may be Maritime Courts and Arbitration Courts.
4.
The law shall determine the establishment, organisation
and functioning of the courts provided for in the preceding
items.
5.
The law may institutionalise means and ways for the
non-jurisdictional resolution of disputes.
Section 125
(Supreme Court of Justice)
1.
The Supreme Court of Justice is the highest court of law
and the guarantor of a uniform enforcement of the law, and
has jurisdiction throughout the national territory.
2.
It is also incumbent on the Supreme Court of Justice to
administer justice on matters of legal, constitutional and
electoral nature.

3.
The President of the Supreme Court of Justice shall be
appointed by the President of the Republic from among
judges of the Supreme Court of Justice fora term of office of
four years.
Section 126
(Functioning and Composition)
1.

The Supreme Court of Justice shall operate:

a)
In sections, like a court of first instance, in the cases
provided for in the law;
b)
In plenary, like a court of second and single instance, in
the cases expressly provided for in the law;
2. The Supreme Court of Justice shall consist of career
judges, magistrates of the Public Prosecution or jurists of
recognised merit in number to be established by law, as
follows:
a)

One elected by the National Parliament;

b)
And all the others designated by the Superior Council
for the Judiciary.
Section 127
(Electoral and Constitutional Competence)
1.
It is incumbent upon the Supreme Court of Justice, on
legal and constitutional matters:
a)
To review and declare the unconstitutionality and
illegality of normative and legislative acts by the organs of
the State;
b)
To provide an anticipatory verification of the legality
and constitutionality of the statutes and referenda;

c)

To verify cases of unconstitutionality by omission;

d)
To rule, as a venue of appeal, on the suppression of
norms considered unconstitutional by the courts of instance;
e)
To verify the legality regarding the establishment of
political parties and their coalitions and order their
registration or dissolution, in accordance with the
Constitution and the law;
f)
To exercise all other competencies provided for by the
Constitution or the law.
2.
It is incumbent upon the Supreme Court of Justice, in
the specific field of elections:
a)
To verify the legal requirements for candidates for the
office of President of the Republic;
b)
To certify at last instance the regularity and validity of
the acts of the electoral process, in accordance with the
respective law;
c)
To validate and proclaim the results of the electoral
process;
Section 128
(Eligibility)
1.
Only career judges or magistrates of the Public
Prosecution or jurists of recognised merit of East Timorese
nationality may become members of the Supreme Court of
Justice.
2.
In addition to the requirements referred to in the
preceding item, the law may define other requirements.
Section 129

(Superior Council for the Judiciary )


1.
The Superior Council for the Judiciary is the organ of
management and discipline of the judges of the courts and it
is incumbent upon it to appoint, assign, transfer and promotr
the judges.
2.
The Superior Council for the Judiciary shall be presided
over by the President of the Supreme Court of Justice and
shall have the following members:
a)

One designated by the President of the Republic;

b)

One elected by the National Parliament;

c)

One designated by the Government;

d)
One elected by the judges of the courts of law from
among their peers;
3.
The law shall regulate the competence, organisation
and functioning of the Superior Council for the Judiciary.
Section 130
(High Administrative, Tax and Audit Court)
1.
The High Administrative, Tax and Audit Court is the
highest body in the hierarchy of the administrative, tax and
audit courts, without prejudice to the competence of the
Supreme Court of Justice.
2.
The President of the High Administrative, Tax and Audit
Court is elected from among and by respective judges for a
term of office of four years.
3.
It is incumbent upon the High Administrative, Tax and
Audit Court as a single instance to monitor the lawfulness of
public expenditure and to audit State accounts.

1.
It is incumbent upon the High Administrative, Tax and
Audit Court and the administrative and tax courts of first
instance:
a)
To judge actions aiming at resolving disputes arising
from legal, fiscal and administrative relations;
b)
To judge contentious appeals against decisions made by
State organs, their respective office holders and agents;
c)

To perform all the other functions as established by law.

Section 131
(Military Courts)
1.
It is incumbent upon military courts to judge in first
instance crimes of military nature.
2.
The competence, organisation, composition and
functioning of military courts shall be established by law.
Section 132
(Court Hearings)
Court hearings shall be public, unless the court hearing a
matter rules otherwise through a well-founded order to
safeguard personal dignity or public morality and national
security, or guarantee its own smooth operation.
CHAPTER II
PUBLIC PROSECUTORS
Section 133
(Functions and Status)
1.
Public Prosecutors have the responsibility for
representing the State, taking criminal action, ensuring the

defence of the underage, absentees and the disabled,


defending the democratic legality, and promoting the
enforcement of the law.
2.
Public Prosecutors shall be a body of judicial officers,
hierarchically graded, and shall be accountable to the
Attorney-General.
3.
In performing their duties, Public Prosecutors shall be
subject to legality, objectivity and impartiality criteria, and
obedience to the directives and orders as established by law.
4.
Public Prosecutors shall be governed by their own
statutes, and shall only be suspended, retired or dismissed
under the circumstances provided for in the law.
5.
It is incumbent upon the Office of the Attorney-General
to appoint, assign, transfer and promote public prosecutors
and exercise disciplinary actions.
Section 134
(Office of the Attorney-General)
1.
The Office of the Attorney-General is the highest
authority in public prosecution, and its composition and
competencies shall be defined by law.
2.
The Office of the Attorney-General shall be headed by
the Attorney-General, who, in his or her absence or inability
to act, shall be replaced in accordance with the law.
3.
The Attorney-General shall be appointed by the
President of the Republic for a term of office of six years, in
accordance with the terms established by law.
4.
The Attorney-General shall be accountable to the Head
of State and shall submit annual reports to the National
Parliament.

5.
The Attorney-General shall request the Supreme Court
of Justice to make a generally binding declaration of
unconstitutionality of any law ruled unconstitutional in three
concrete cases.
6.
Deputy Attorney-Generals shall be appointed, dismissed
or removed from office by the President of the Republic after
consultation with the Superior Council for the Public
Prosecution.
Section 135
(Superior Council for the Public Prosecution)
1.
The Superior Council for the Public Prosecution is an
integral part of the office of the Attorney-General.
2.
The Superior Council for the Public Prosecution shall be
headed by the Attorney-General and shall comprise the
following members:
a)

One designated by the President of the Republic;

b)

One elected by the National Parliament;

c)

One designated by the Government;

d)
One elected by the magistrates of the Public
Prosecution from among their peers.
3. The law shall regulate the competence, organisation and
functioning of the Superior Council for the Public Prosecution.
CHAPTER III
LAWYERS
Section 136
(Lawyers)

1.
Legal and judicial aid is of social interest, and lawyers
and defenders shall be governed by this principle.
2.
The primary role of lawyers and defenders is to
contribute to the good administration of justice and the
safeguard of the rights and legitimate interests of the
citizens.
3.

The activity of lawyers shall be regulated by law.

Section 137
(Guarantees in the activity of lawyers)
1.
The State shall, in accordance with the law, guarantee
the inviolability of documents related to legal proceedings.
No search, seizure, listing or other judicial measures shall be
permitted without the presence of the competent magistrate
and, whenever possible, of the lawyer concerned.
2.
Lawyers have the right to contact their clients
personally with guarantees of confidentiality, especially
where the clients are under detention or arrest in military or
civil prison centres.
TITLE VI
PUBLIC ADMINISTRATION
Section 138
(Public Administration general principles)
1.
Public Administration shall aim at meeting public
interest, in the respect for the legitimate rights and interests
of citizens and constitutional institutions.
2.
The Public Administration shall be structured to prevent
excessive bureaucracy, provide more accessible services to
the people and ensure the contribution of individuals
interested in its efficient management.

3.
The law shall establish the rights and guarantees of the
citizens, namely against acts likely to affect their legitimate
rights and interests.
PART IV
ECONOMIC AND FINANCIAL ORGANISATION
TITLE I
GENERAL PRINCIPLES
Section 139
(Economic organisation)
The economic organisation of East Timor shall be based on
the combination of community forms with free initiative and
business management, as well as on the co-existence of the
public sector, the private sector and the co-operative and
social sector of ownership of means of production.
Section 140
(Natural resources)
1.
The resources of the soil, the subsoil, the territorial
waters, the continental shelf and the exclusive economic
zone, which are essential to the economy, shall be owned by
the State and shall be used in a fair and equitable manner in
accordance with national interests.
2.
The conditions for the exploitation of the natural
resources referred to in item 1 above should lend themselves
to the establishment of mandatory financial reserves, in
accordance with the law.
3.
The exploitation of the natural resources shall preserve
the ecological balance and prevent destruction of

ecosystems.
Section 141
(Investments)
The State shall promote national investment and establish
conditions to attract foreign investment, taking into
consideration the national interests, in accordance with the
law.
Section 142
(Land)
Ownership, use and development of land as one of the
factors for economic production shall be regulated by law.
TITLE II
FINANCIAL AND TAX SYSTEM
Section 143
(Financial system)
The structure of the financial system shall be determined by
the law in such a way as to guarantee that savings are
encouraged and built up with security and that the financial
resources necessary for economic and social development
are provided.
Section 144
(Central Bank)
1.
The State shall establish a national central bank jointly
responsible for the definition and implementation of the
monetary and financial policy.
2.
The Central Bank functions and its relationship with the
National Parliament and the Government shall be established
by law.

3.
The Central Bank shall have exclusive competence for
issuing the national currency.
Section 145
(Tax System)
1.
The State shall establish a tax system aimed at meeting
the financial requirements of the State and the fair
distribution of national income and wealth.
2.
Taxes shall be established by law, which shall determine
the incidence, tax benefits and the guarantees of taxpayers.
Section 146
(State Budget)
1.
The State Budget shall be prepared by the Government
and approved by the National Parliament.
2.
The Budget law shall provide, based on efficiency and
effectiveness, a breakdown of the revenues and
expenditures of the State, as well as preclude the existence
of secret appropriations and funds.
3.
The execution of the Budget shall be monitored by the
High Administrative, Tax and Audit Court and by the National
Parliament.

PART V
NATIONAL DEFENCE AND SECURITY
Section 147
(Defence Force)
1.
The East Timor defence force, FALINTIL-ETDF, composed
exclusively by national citizens, has the responsibility of
providing military defence for the Democratic Republic of

East Timor and shall have a single system of organisation for


the whole national territory.
2.
FALINTIL-ETDF shall guarantee national independence,
territorial integrity and the freedom and security of the
populations against any aggression or external threat, in
respect for the constitutional order.
3.
FALINTIL-ETDF shall be non-partisan and shall owe
obedience to the competent organs of sovereignty in
accordance with the Constitution and the laws, and shall not
intervene in political matters.
Section 148
(Police and security forces)
1.
The police shall defend the democratic legality and
guarantee the internal security of the citizens, and shall be
strictly non-partisan.
2.
Prevention of crime shall be undertaken with due
respect for human rights.
3.
The law shall determine the rules and regulations for
the police and other security forces.
Section 149
(Superior Council for Defence and Security)
1.
The Superior Council for Defence and Security is the
consultative organ of the President of the Republic on
matters relating to defence and sovereignty.
2.
The Superior Council for Defence and Security shall be
headed by the President of the Republic and shall include
civilian and military entities, the number of civilian entities
being higher than the number of military entities.
3.

The composition, organisation and functioning of the

Superior Council for Defence and Security shall be defined by


law.
PART VI
GUARANTEE AND REVISION OF THE CONSTITUTION
TITLE I
GUARANTEE OF THE CONSTITUTION
Section 150
(Anticipatory review of constitutionality)
1.
The President of the Republic may request the Supreme
Court of Justice to undertake an anticipatory review of the
constitutionality of any statute submitted to him or her for
promulgation.
2.
The preventive review of the constitutionality may be
requested within twenty days from the date on which the
statute is received, and the Supreme Court of Justice shall
hand down its ruling within twenty-five days, a time limit
that may be reduced by the President of the Republic for
reasons of emergency.
3.
If the Supreme Court of Justice rules that the statute is
unconstitutional, the President of the Republic shall submit a
copy of the ruling to the Government or the National
Parliament and request the reformulation of the statute in
accordance with the decision of the Supreme Court of
Justice.
4.
The veto for unconstitutionality of a statute from the
National Parliament that has been submitted for
promulgation can be circumvented under section 88, with
the necessary adaptations.
Section 151
(Abstract review of constitutionality)

Declaration of unconstitutionality may be requested by:


a)

The President of the Republic;

b)

The Speaker of the National Parliament;

c)
The Attorney-General, based on the refusal by the
courts, in three concrete cases, to apply a statute deemed
unconstitutional;
d)

The Prime Minister;

e)

One fifth of the Members of the National Parliament;

f)

The Ombudsman.

Section 152
(Unconstitutionality by omission)
The President of the Republic, the Attorney-General and the
Ombudsman may request the Supreme Court of Justice to
review the unconstitutionality by omission of any legislative
measures deemed necessary to enable the implementation
of the constitutional provisions.
Section 153
(Appeals on constitutionality)
1.
The Supreme Court of Justice has jurisdiction to hear
appeals against any of the following court decisions:
a)
Decisions refusing to apply a legal rule on the grounds
of unconstitutionality;
b)
Decisions applying a legal rule the constitutionality of
which was challenged during the proceedings.
2.
An appeal under paragraph (1) (b) may be brought only
by the party who raised the question of unconstitutionality.

3.

The regime for filing appeals shall be regulated by law.

Section 154
(Decisions of the Supreme Court of Justice)
Decisions of the Supreme Court of Justice shall not be
appealable and shall be published in the official gazette.
They shall have a general binding effect on processes of
abstract and concrete monitoring, when dealing with
unconstitutionality.
TITLE II
CONSTITUTONAL REVISION
Section 155
(Initiative and time of revision)
1.
It is incumbent upon Members of Parliament and the
Parliamentary Groups to initiate constitutional revision.
2.
The National Parliament may revise the Constitution
after six years have elapsed since the last date on which a
law revising the Constitution was published.
3.
The period of six years for the first constitutional review
shall commence on the day the present Constitution enters
into force.
4.
The National Parliament, regardless of any timeframe,
may take on powers to revise the Constitution by a majority
of four-fifths of the Members of Parliament in full exercise of
their functions.
5.
Proposals for revision should be submitted to the
National Parliament one hundred and twenty days prior to
the date of commencement of debate.
6.

After submission of a proposal for constitutional revision

under the terms of item 5 above, any other proposal shall be


submitted within 30 days.
Section 156
(Approval and promulgation)
1.
Amendments to the Constitution shall be approved by a
majority of two-thirds of the Members of Parliament in full
exercise of their functions.
2.
The new text of the Constitution shall be published
together with the revision law.
3.
The President of the Republic shall not refuse to
promulgate a revision law.
Section 157
(Limits on matters of revision)
1. Laws revising the Constitution shall respect:
a)

National independence and the unity of the State;

b)

The rights, freedoms and guarantees of citizens;

c)

The republican form of government;

d)

The separation of powers;

e)

The independence of the courts;

f)
The multi-party system and the right of democratic
opposition;
g)
The free, universal, direct, secret and regular suffrage
of the office holders of the organs of sovereignty, as well as
the system of proportional representation;

h)

The inexistence of an official religion of the State

i)
The principle of administrative deconcentration and
decentralisation;
j)

The National Flag.

k)

The date of proclamation of national independence.

2. Paragraphs c), h) and j) may be reviewed through a


national referendum, in accordance with the law.
Section 158
(Limits on time of revision)
No action may be taken to revise the Constitution during a
state of siege or a state of emergency.
PART VII
FINAL AND TRANSITIONAL PROVISIONS
Section 159
(Treaties, agreements and alliances)
1.
Confirmation, accession and ratification of bilateral and
multilateral conventions, treaties, agreements or alliances
that took place before the entry into force of the present
Constitution shall be decided upon by the respective
competent bodies on a case-by-case basis.
Section 160
(Working Languages)
Indonesian and English shall be working languages within
civil service side by side with official languages as long as
deemed necessary.
Section 161
(Serious Crimes)

Acts committed between the 25th of April 1974 and the 31st
of December 1999 that can be considered crimes against
humanity shall be liable to criminal proceedings with the
national or international courts.
Section 162
(Illegal appropriation of assets )
Illegal appropriation of mobile and fixed assets that took
place before the entry into force of the present Constitution
is considered crime and shall be resolved as provided for in
the Constitution and the law.
Section 163
(Reconciliation)
It is incumbent upon the Commission for Reception, Truth
and Reconciliation to discharge functions conferred to it by
UNTAET Regulation No. 2001/10.
The competencies, mandate and objectives of the
Commission shall be redefined by the Parliament whenever
necessary.
Section 164
(Transitional judicial organisation)
1.
The collective judicial instance existing in East Timor,
integrated by national and international judges with
competencies to judge serious crimes committed between
the 1st of January and the 25th of October 1999, shall
remain operational for the time deemed strictly necessary to
conclude the cases under investigation.
2.
The judicial organisation existing in East Timor on the
day the present Constitution enters into force shall remain
operational until such a time as the new judicial system is
established and starts its functions.

Section 165
(Transitional competence of the Supreme Court of Justice)
1.
After the Supreme Court of Justice starts its functions
and before the establishment of courts as laid down in
Section 129, the respective competence shall be exercised
by the Supreme Court of Justice and other courts of justice.
2.
Until such a time as the Supreme Court of Justice is
established and starts its functions all powers conferred to it
by the Constitution shall be exercised by the highest judicial
instance of the judicial organisation existing in East Timor.
Section 166
(Previous Law)
Laws and regulations in force in East Timor shall continue to
be applicable to all matters except to the extent that they
are inconsistent with the Constitution or the principles
contained therein.
Section 167
(Transformation of the Constitutional Assembly)
1.
The Constitutional Assembly shall be transformed into a
National Parliament with the approval of the Constitution of
the Republic.
2.
In its first term of office, the National Parliament shall
be comprised of eighty-eight members on an exceptional
basis.
Section 168
(Presidential Election of 2002)
The President Elected under UNTAET Regulation No. 2002/01
shall take on the competencies and fulfil the mandate

provide for in the Constitution.


Section 169
(Entry into force of the Constitution)
The Constitution of the Democratic Republic of East Timor
shall enter into force on the 20th of May of 2002.

THE-STORY-OF-PARLIAMENT History of
Parliament 1045 ... by the abolition of the
monarchy and the House of Lords. Oliver
Cromwell, ... supremacy of Parliament.
https://www.parliament.uk/documents/c
ommons-informationoffice/Publications-2015/THE-STORYOF-PARLIAMENT-web.pdf
An Irish homeless man has died after
sleeping out in sub zero temperatures

An Irish man has died after sleeping


rough on Thursday last week.
A body of a man was found outside Tesco in the Longwalk
Shopping Centre in Dundalk at approximately 12pm on
Friday. The man has been named locally as Paul Gorman.
The previous night, temperatures dropped below zero
and it's believed this is the cause of his death. As a result
Garda are not treating it as suspicious.
According to The Dundalk Democrat, Paul, who was 49years-old, leaves behind a wife and three children.
Michelle Ryan, from the Dundalk Simon Community has

released the following statement on the tragedy:


This death is a tragic event. It's heartbreaking. To die
alone and on the streets - what could make for a sadder
Christmas.
Our thoughts are with Pauls family and his many friends
both within and without the homeless community. He
will not be forgotten.
She further stresses the need for a change in our current
homeless crisis:
As a homeless service we have experienced a 20 per cent
uptake on 2015. The beds in our hostel are full night after
night.
"And as we head into a rough winter our resources are
stretched to the limit to meet the demand for shelter, the
need for support and the desire to ensure that no one is
left out in the freezing night air.
"We would therefore appeal to those with influence,
those in power, to those whose voices are louder than
our own: please ensure that everyone who needs a place
to stay, and anyone who needs emergency
accommodation, gets it.
https://www.joe.ie/news/irish-homeless-man-died-sleeping-sub-zerotemperatures/568952

Can Ireland Legislate Contrary to European


Community

Can Ireland Legislate Contrary to European Community ...


The Irish Parliament, the ... but to the extent only of such
repugnancy, be invalid

http://www.tcd.ie/iiis/docu

ments/discussion/pdfs/iiisd
p237.pdf

an Ireland Legislate Contrary to European Community ... The


Irish Parliament, the ... but to the extent only of such
repugnancy, be invalid
December 2007
Can Ireland Legislate Contrary to European Community Law?
William Phelan
Department of Political Science, TCD
IIIS Discussion Paper No. 237
Can Ireland Legislate Contrary to European Community Law?
William Phelan
Disclaimer
Any opinions expressed here are those of the author(s) and
not those of the IIIS. All works posted here are owned and
copyrighted by the author(s).
Papers may only be downloaded for personal use only.
Can Ireland Legislate Contrary to European Community Law?
William Phelan
Department of Political Science, Trinity College Dublin
wtphelan@gmail.com
Abstract
This paper considers whether Ireland can unilaterally
legislate contrary to European Community law, and achieve
the application of that legislation in Irish courts not
withstanding the European Community law doctrines of
supremacy and direct effect. It argues that the scholarship
on the relationship between Irish law and European

Community law, together with decisions of Irish courts,


indicate that Ireland could legislate contrary to European
Community law by amending the European Communities
Act. More broadly, for member states of the European Union
which like Ireland derive the application of European law
in the national legal order from national legislation, it is not
so much the 'constitutional' claims of European Community
law that prevent the member states from legislating contrary
to European Community law but rather the fact that the
member states persistently refrain from legislating to limit
the effect of Community law in the national jurisdictions
which gives European Community law its 'constitutional'
character.
Can Ireland legislate contrary to European Community law?
Can Ireland legislate contrary to European Community law?1
More precisely, can Irish political institutions pass statutory
or constitutional legislation explicitly contrary to European
Community law and have that legislation applied in Irish
courts? European Community laws doctrines of supremacy
and direct effect claim that national courts must apply
directly effective European Community obligations
regardless of any provision of domestic law. Are there
nevertheless circumstances where Irish courts would permit
Irish political institutions to legislate contrary to European
Community law and achieve the enforcement of that
legislation in Irish courts, notwithstanding Community law
doctrines or decisions of the European Court of Justice?
Despite the rejection of the Treaty Establishing a Constitution
for Europe in referenda by the electorates in France and the
Netherlands, it seems likely that European governments will
agree a further, and perhaps similar, European treaty in the
near future. Now would therefore seem to be an appropriate
moment for a consideration of the jurisprudence and
scholarship on this important question of the relationship of
European Community law and Irish law.
Understanding the limits of European Community law in the
national legal orders is also an important step towards
understanding of European Community law as a
constitution.2 Many scholars of the law and politics of

European integration emphasise that the feature which most


importantly distinguishes European Community law from
other international legal systems is that the EU member
states cannot legislate
1 I would like to particularly thank Gerard Hogan and
Diarmuid Rossa Phelan for very helpful discussions of the
topic of this paper. Thanks also to Des Ryan for helpful
comments and to Elizabeth Gleeson for advice on sources.
The responsibility for the contents is, of course, my own.
2 E Stein, 'Toward Supremacy of Treaty - Constitution by
Judicial Fiat in the European Economic Community' (1965) 48
Rivista di Diritto Internazionale 3-28
2
contrary to their European treaty commitments.3 If this
claim does not hold, then new ways of explaining the
effectiveness of European Community law as a constitution
will need to be investigated.
The possibility of national courts applying national legislation
contrary to European Community law is only one of several
possible limitations on the effectiveness of European
Community law in the national legal orders of the member
states. Other possible limitations include the non-application
of European Community law in the national legal order where
European Community law obligations conflict with national
constitutional law fundamental rights; the non-application of
European Community law where its law obligations exceed
the scope of the competences delegated to the European
institutions by the European treaties; and the non-application
of European Community law in the national legal order
following a unilateral national decision to relinquish
membership of the European Union. The specific question
that this paper addresses is whether Ireland can legislate
contrary to European Community law in part, while
remaining a member of the European Union and continuing
to enforce other European obligations in national courts.
Of course, the application of national legislation contrary to
Community law might lead to a dispute between Ireland and
the European institutions, or Ireland and the other member
states, just as the decision of a national court not to apply

directly effective Community law on the grounds that a


Community law obligation was contrary to fundamental
rights protected by the national legal order might also lead
to a dispute. A full consideration of the various ways in which
such disputes be might be resolved would merit a separate
discussion. This paper addresses only the question of
3 See, for example, JHH Weiler, 'The Transformation of
Europe' (1991) 100 Yale Law Journal 2403-2483 especially
2413-2415; A Stone Sweet, The Judicial Construction of
Europe (Oxford University Press, Oxford, New York 2004)
especially 25 on the EU member states' lack of unilateral
legislative options vis--vis their own courts.
3
whether the Irish courts would permit Irish political
institutions to legislate contrary to European Community law
and receive the enforcement of that legislation in Irish
courts, notwithstanding the European Community law
doctrines of supremacy and direct effect or decisions of the
European Court of Justice.
This paper will develop its answer to this question through a
wider discussion of the relationship of Irish law with both
public international law and European Community law, based
on a review of court decisions and legal scholarship. Basic
legal arrangements and jurisprudence are discussed to allow
those less familiar with the Irish legal order to more easily
follow the argument.
The fundamental basis of the Irish legal order is the Irish
Constitution, Bunreacht na hireann, enacted by the Irish
people on 1 July 1937. The Irish Constitution creates a
parliamentary system of government. The Irish Parliament,
the Oireachtas, is comprised of the President of Ireland, and
two legislative chambers. The House of Representatives, Dil
ireann comprises the directly elected lower house, to which
the Irish government is responsible. The Senate, Seanad
ireann comprises the upper house, with modest powers of
legislative delay, whose members are either indirectly
elected by members of the Dil and local authorities, or
appointed by the Taoiseach, the Irish prime minister.
The Irish Constitution provides, inter alia, for Irelands

inalienable right to self- determination,4 that Ireland is a


sovereign state,5 for popular sovereignty as the
4 See Art 1 of the Irish Constitution (IC): 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.
5 Ireland is a sovereign, independent, democratic state. Art
5 IC. 4
fundamental basis of government,6 that the Oireachtas has
exclusive power of making laws for the State,7 and for the
invalidity of laws enacted contrary to the Constitution.8
Amendments to the Irish Constitution are initiated by the
Dil, enacted by the Oireachtas, and submitted for the
decision of the Irish people in a referendum.9
When Ireland joined the European Communities, it passed
statutory legislation and amended the Irish Constitution in
order to give effect to the European treaties in the Irish legal
order. This was accomplished by an Act of the Oireachtas,
the European Communities Act 1972, and the Third
Amendment to the Irish Constitution (enacted 8 June, 1972).
Section 2(1) of the European Communities Act states:
From 1 January 1973, the treaties governing the European
Communities and the existing and future acts adopted by
the institutions of those Communities and by the bodies
competent under the said treaties shall be binding on the
State and shall be part of the domestic law thereof under the
conditions laid down in those treaties.
The wording of Section 2(1) of the European Communities
Act reflects Art 29.6 of the Irish Constitution: No
international agreement shall be part of the domestic law of
the State save as may be determined by the Oireachtas..
The Third Amendment inserted what was then Article 29.4.3
(the predecessor of what is now Article 29.4.10) of the Irish
Constitution stating:
6 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. Art 6.1 IC.
7 The sole and exclusive power of making laws for the State
is hereby vested in the Oireachtas: no other legislative body
has power to make laws for the State. Art 15.2.1 IC.
8 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. Art 15.4 IC.
9 See especially Article 46.2 IC: Every proposal for an
amendment of this Constitution shall be initiated in Dil
ireann 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.
5
The State may become a member of the European Coal and
Steel Community ..., the European Economic Community...,
and the European Atomic Energy Community...
No provision of this Constitution invalidates law enacted,
acts done or measures adopted by the State necessitated by
the obligations of membership of the Communities, or
prevents laws enacted or acts done or measures adopted by
the Communities or the institutions thereof, from having the
force of law in the State.10
Since Ireland joined the European Union, Irish courts have
regularly applied European Community law obligations in
place of contrary Irish law and the obligation to disapply
national law to give effect to Community obligations is
clearly accepted. Costello J stated the position in Pigs and
Bacon Commission v McCarren:
The effect of [Section 2 of the European Communities Act
1972] is that Community law takes legal effect in the Irish
legal system in the manner in which Community law itself
provides. Thus, if according to Community law a provision of
the Treaty is directly enforceable so that rights are conferred
on individuals which national courts must enforce, an Irish

court must give effect to such a rule. And if, according to


Community law, the provisions of Community law take
precedence over a provision of national law in conflict with it
an Irish court must give effect to this rule. That Community
law enjoys precedence over a conflicting national law has
been made clear in a number of decisions of the European
Court and most recently in Case 106/77, Amministrazione
delle Finanze dello Stato v Simmenthal.11
Similarly, in Murphy v Bord Telecom ireann,12 the European
Court of Justice found, on the basis of a preliminary
reference under Article 177 (now 234) of the Treaty, that
Irish law did not provide for equal pay for equal work for men
and women. Disapplying Irish law in line with the ECJs
opinion, Keane J stated:
10 With further amendments to the Irish Constitution to
accommodate various subsequent European treaties, the
numbering and text of the original 29.4.3 has changed
accordingly. Between 1973- 93, this was Art 29.4.3; 1993-9,
Art 29.4.6; 1999-2002, Art 29.4.7 and currently (as of June
2007) 29.4.10. See G Hogan and G Whyte, J M Kelly: The Irish
Constitution (LexisNexis, Dublin 2003) 514 footnote 101.
The current provision (as of June 2007) 29.4.10 states:
No provision of this Constitution invalidates law enacted,
acts done or measures adopted by the obligations of
membership of the European Union or of the Communities,
or prevents law enacted, acts done or measures adopted b
the European Union or by the Communities or by institutions
thereof, or by bodies competent under the Treaties
establishing the Communities, from having the force of law
in the State.
11 [1978] JISEL 109. 12 [1989] ILRM 53.
6
The interpretation of those sections [of the Irish law in
question], in accordance with the canons of construction
normally applied in Irish courts, has in the present case
yielded a result which is in conflict with Article 119 of the
Treaty as interpreted by the Court of Justice of the EC. Where
such a conflict exists, national law must yield primacy to
community law...

Seamus Henchy, a judge of the Supreme Court of Ireland,


writing in a 1977 article on the Irish Constitution and the
E.E.C., stated baldly:
Because Community law is part of domestic law, it is the
duty of the courts set up under the Constitution to
implement it; but it is the exclusive function of the European
Court to interpret and determine conclusively the validity of
the Treaties and of acts put forward as Community law; and
where there a conflict is found between national law and
Community law, it is an absolute imperative that the
Community law shall prevail.13
Irish judges have held European Community law obligations
to qualify or limit provisions of the Irish Constitution if
necessary to ensure the supremacy of Community law. In
Campus Oil Ltd v Minister for Industry & Energy,14 the
question arose whether it would be possible to appeal to the
Supreme Court, which under Article 34 of the Irish
Constitution has appellate jurisdiction from all decisions of
the High Court and other courts, against a decision of the
High Court to seek a preliminary reference from the
European Court of Justice, using the preliminary reference
procedure. The Supreme Court held that seeking a
preliminary reference was not a decision within the
meaning of Article 34, but Walsh J added that:
However, even if the reference of questions to the Court of
Justice were a decision within the meaning of Article 34 of
the Constitution, I would hold that, by virtue of the provision
of Article 29.4.3o of the Constitution, the right to appeal to
this Court from such a decision must yield to the primacy of
Article 177 of the Treaty. That Article, as a part of Irish law,
qualifies Article 34 of the Constitution in the matter in
question.15
Irish courts have considered the compatibility of Irish law
with European Community law obligations in a wide range of
issue-areas. The consensus of scholarly
13 S Henchy, 'The Irish Constitution and the E.E.C.' (1977)
(1) Dublin University Law Journal 20-25 23.
14 [1983] IR 82.
15 [1983] IR 82, 87.

7
opinion is that the Irish courts willingly acknowledge the
supremacy and direct effect of European law, and are willing
to disapply substantive provisions of national law to give
effect to EU obligations in Ireland.16
In the ordinary course of events, as shown by Pigs and Bacon
Commission, national laws which are contrary to Community
law obligations will not be applied by Irish judges. The
concern of this paper, however, is with the availability in Irish
law of mechanisms for elected Irish politicians to legislate
contrary to directly effective European Community law and
thus avoid the application of part of EC law (what J.H.H.
Weiler would term selective exit from EU obligations17) in
the national legal order.
This paper addresses the question by answering three
questions on the relationship of Community and national law
in Ireland: Do Irish courts recognise an Irish law obligation to
apply treaty obligations in place of contrary Irish law (Pacta
sunt servanda)? Do Irish courts recognise a direct
Community law obligation to apply Community law and
disapply contrary Irish law? And, do Irish courts recognise an
Irish law obligation to apply Community law in place of Irish
legislation expressly contrary to Community law? The paper
then concludes with brief comments on the relationship
16 The following references are typical, as are the frequent
references to a possible exception in the Grogan case
(considered below). F Murphy, 'Community Law in Irish
Courts 1973-1981' (1982) 7 European Law Review 331-345
342: The first general conclusion that may be drawn from
these cases is that the Community legal order with its
attendant doctrine of supremacy has been accepted almost
without question in the Irish legal order.. Hogan and Whyte,
J M Kelly: The Irish Constitution 533: Save for one isolated
and inconclusive instance dealing with abortion [Walsh J in
Society for the Protection of Unborn Children (Ire) Ltd v
Grogan [1989] IR 713] the Irish courts have unhesitatingly
acknowledged the supremacy of Community law.. DR Phelan
and A Whelan, 'National constitutional law and European
integration: FIDE Report' (1997) 6 Irish Journal of European

Law 24-64 44: Despite the remarks of McCarthy and Walsh JJ


in Grogan, the Irish courts are normally content to take the
European Communities Act and Article 29.4.5o of the
Constitution at [sic] according primacy in domestic law to
Community law as interpreted by the Court of Justice. There
is a large volume of cases to this effect. The courts
sometimes take an over-deferential attitude to the
Government when it implements Community law, at
unnecessary cost to Irish constitutional norms....
17 JHH Weiler, 'Alternatives to withdrawal from an
International Organization: The case of the European
Economic Community' (1985) 20 (2-3) Israel Law Review
282-298; Weiler, 'The Transformation of Europe' 2403.
8
of European and national law in the national legal orders of
the member states in general, and on the significance of any
subsequent European treaty which would unlike the
existing European treaties, but like the proposed Treaty
Establishing a Constitution for Europe make explicit
provision for the supremacy and direct effect of European
Community law.
Do Irish courts recognise a Irish law obligation to apply treaty
obligations in place of contrary Irish law (Pacta Sunt
Servanda)?
Article 29.6 of the Irish Constitution states: No international
agreement shall be part of the domestic law of the State
save as may be determined by the Oireachtas.
As a result of Art 29.6, the Irish legal order adopts a dualist
approach to international treaty obligations: international law
is only effective in domestic law as a result of domestic
legislation.
Michael Forde summarises as follows:
Dualism, which is the political-legal tradition in Britain and
in Ireland, may be described as a doctrine of legal
insularity. ... Dualism distinguishes sharply between
international law and municipal law, and holds that
international legal standards become part of national law
only when they are incorporated by legislation into the
states legal system. The fact that a state becomes bound by

a particular treaty has no significance for its own laws; for


the treatys standards to become part of state law requires
that legislation be enacted that contains the treaty
provisions.18
Irish courts therefore do not apply international treaty
obligations in domestic law in the absence of domestic
legislation incorporating treaty obligations.19 Domestic
18 M Forde, Constitutional Law (Second edn, First Law,
Dublin 2004) 235.
19 See for example Phelan and Whelan, 'National
constitutional law and European integration: FIDE Report' 26;
CR Symmons, 'Irlande Ireland' in PM Eisemann (ed)
L'Intgration du droit international et communautaire dans
lordre juridique nationale: tude de la practique en Europe
(Kluwer Law International, The Hague 1996) 317-363 330; G
Hogan, 'EU Law and National Constitutions Questionnaire for
FIDE 2002: The Irish Constitution and the European Union' in
MT Andens (ed) FIDE XX Congress: Vol 2 Reports and
Conclusions (British Institute of International and
Comparative Law, London 2002) 369-386 368.
9
legislation incorporating treaty provisions can be challenged
for unconstitutionality before Irish courts.20
Two decisions of the Supreme Court of Ireland demonstrate
the dualist approach of the Irish legal order.
In In re Laighlis,21 Irish internment legislation was
challenged as contrary to the European Convention on
Human Rights which Ireland had ratified in 1953. The
Supreme Court found:
The insuperable obstacle to importing the provisions of the
Convention for the Protection of Human Rights and
Fundamental Freedoms into the domestic law of Ireland if
they be at variance with that law is that the the sole and
exclusive power of making laws for the State is hereby
invested in the Oireachtas; no other legislative authority has
power to make laws for the state. Moreover, Article 19, the
Article dealing with international relations, provides at s 6
that no international agreement shall be part of the
domestic law of the State save as may be determined by the

Oireachtas. The Oireachtas has not determined that the


Convention of Human Rights and Fundamental Freedoms is
to be part of the domestic law of the State, and accordingly
this Court cannot give effect to the Constitution if it be
contrary to domestic law or purports to grant rights or
impose obligations additional to those of domestic law. No
argument can prevail against the express command of s 6 of
Article 29 ... before judges whose declared duty is to uphold
the Constitution and the laws.22
In the 1999 case of Doyle v Commissioner of An Garda
Sochna23, where the plaintiff attempted to invoke
provisions of the European Convention on Human Rights, to
which Ireland was a signatory but which Ireland had not
made part of domestic law. Barrington J wrote in judgment:
20 The obligations contained in the international convention
then have the status in Irish law of the incorporating
measure a status inferior to the Constitution. It is therefore
possible for the implementing measure to be challenged for
unconstitutionality before the Irish courts. The courts also
appear to be willing to review the constitutionality of the
States accession and adherence to international agreements
even if they are not incorporated into Irish law, if they
undermine the constitutional order ... In both case, the
finding of unconstitutionality, and thus of the invalidity of the
States adherence as a matter of Irish law, could result in an
inconsistency between the States domestic and
international obligations ... Phelan and Whelan, 'National
constitutional law and European integration: FIDE Report' 26.
21 [1960] IR 93. For a more extensive discussion of the Irish
case law, see Hogan and Whyte, J M Kelly: The Irish
Constitution 548, footnote 220.
22 [1960] IR 93, 124. 23 [1999] 1 IR 249.
10
Ireland is a signatory of the European Convention on Human
Rights and accepts the right of individual petition. But
Ireland takes the dualistic approach to its international
obligations and the European Convention on Human Rights is
not part of the domestic law of Ireland. (See In re Laighlis
[1960] IR 93). The Convention may overlap with certain

provisions of Irish constitutional law and it may be helpful to


an Irish court to look at the Convention when it is attempting
to identify unspecified rights guaranteed by Article 40.3 of
the Constitution. Alternatively the Convention may, in
certain circumstances, influence Irish law through European
Community law. But the Convention is not part of Irish
domestic law and the Irish court has no part in its
enforcement. 24
As well as providing for Irelands dualist relationship with
international law, Irelands Constitution also recognises the
influence of generally recognised principles of international
law. Article 29.3 provides that Ireland accepts the generally
recognised principles of international law as its rule of
conduct in its relations with other States.
Article 29.3 has been used to apply generally recognised
principles of international law and customary international
law in Irish courts.25 However, it does not incorporate the
international law obligation pacta sunt servanda in Irish
law.26
In conclusion, Irish courts do not recognise a Irish law
obligation to apply treaty obligations in place of contrary
Irish law. On the contrary, Irish courts recognise that the
Oireachtas possesses the right to legislate contrary to
Irelands treaty obligations in whole or part if the legislature
makes its intentions clear.
In the event of an explicit attempt by the Oireachtas to
remove the application of a part of Community law in
Ireland, Irish courts would not enforce Community law
obligations on the basis of a general Irish law principle of
pacta sunt servanda.
24 [1999] 1 IR 249, 268.
25 Forde, Constitutional Law 237-241; J Casey, Constitutional
Law in Ireland (Third edn, Round Hall Sweet & Maxwell,
Dublin 2000) 190-195; Symmons, 'Irlande Ireland' 350-356.
26 Even in relation to the generally recognized principles of
international law which are covered by Article 29.3, Irish
courts have held that such principles cannot be part of Irish
municipal law if they are contrary to Irish statute law - see
Casey, Constitutional Law in Ireland 193-194.

11
Do Irish courts recognise a direct Community law obligation
to apply European Community law and disapply contrary
national law?
The European Court of Justice claims that European
Community law itself determines the place of European
Community law obligations in the national legal order and
that national judges have a European Community law
obligation to apply European Community law in place of
contrary national law. According to European Community
law, this European Community law obligation on national
judges is direct and unmediated by national statutes and
constitutional provisions27. Irish judges, however, have
repeatedly disagreed with the ECJs claims about the basis of
supremacy and direct effect of European Community law in
the Irish legal order. Rather, Irish judges conceive of the
supremacy and direct effect of European Community law in
the Irish legal order as derivative of the European
Communities Act and the provisions of the Irish Constitution
which introduce European Community law into the Irish legal
order.
Barrington J, in Crotty v An Taoiseach28 in the High Court,
makes clear that Community law is effective in the Irish legal
order only because of Irish legislation in the form of the
European Communities Act:
These acts [the Third Amendment and the deposit of the
instrument of ratification] may have been sufficient to make
Ireland a member of the European Community in
international law as from 1 January 1973. ... But these acts
were not sufficient in themselves to make Ireland an
effective member of the Community. To make Ireland an
effective member as of 1 January 1973 it was necessary to
make the Treaty part of the domestic law of Ireland. To
achieve this it was necessary to pass an Act of the
Oireachtas pursuant to the provisions of Article 29.6 making
the Treaty of Rome part of the domestic law of Ireland and
giving the institutions of the Community a status in Irish
domestic law. Had the Oireachtas not passed the European
Communities Act 1972 Ireland

27 The classic reference is Case 106/77 Amministrazione


delle Finanze dello Stato v Simmenthal Spa [1978] ECR 629.
28 [1987] IR 713, [1987] ILRM 400.
12
might still have been a member of the Community in
international law but it would have been in breach of its
obligations in international law under the Treaty of Rome and
under the Treaty of Accession. This however would not have
been a matter in relation to which the domestic courts of this
country would have had any competence because the Treaty
would not have been part of the domestic law. The immunity
from constitutional challenge conferred by the second
sentence of the Third Amendment on laws enacted, acts
done, or measures adopted by the Community or its
institutions would therefore have been meaningless as these
laws, acts or measures would not have been part of the
domestic law of this country. To make them part of the
domestic law of this country the European Communities Act
1972 was necessary.29
Barrington Js judgment in Crotty shows the limited,
contingent and derivative basis of European Community law
supremacy in Irish law: To make EC law part of the domestic
law of Ireland the European Communities Act 1972 was
necessary. The views of the European Court of Justice on
supremacy and direct effect notwithstanding, and unlike the
relationship between federal and state law in a true federal
state, European Community law in Ireland depends on Irish
legal provisions which enable its effect in the domestic legal
order.
Irish judges have explicitly recognised the possibility of
deviations between European Community obligations and
the obligations imposed by Irish constitutional law, and
stated that in such circumstances their duty would be to the
Irish Constitution. This possibility occurred in litigation
culminating in the Society for the Protection of Unborn
Children (Ire) Ltd v Grogan30 decision of the Supreme Court
of Ireland over whether an Irish constitutional amendment
restricting access to abortion, enacted by the Irish people

subsequent to the Third Amendment which provided the


immunity from constitutional scrutiny of European
Community obligations in Ireland, could restrict the
availability of information about abortion facilities outside
Ireland which might otherwise have benefited from the
freedom to provide services across borders under
Community law.
29 [1987] IR 713, 757.
30 [1989] IR 753, [1990] ILRM 350.
13
McCarthy J stated in Grogan:
The sole authority for the construction of the Constitution
lies in the Irish courts, the final authority being this Court.
Article 29.4.3 [the Third Amendment, preventing
constitutional challenges to EC law in the Irish legal order]
may exclude from constitutional invalidation some provision
of the Treaty of Rome the enforcement of which is
necessitated by the obligations of membership of the
European Communities; it may be that in enacting the Eighth
Amendment to the Constitution [relating to abortion] as
explained by this Court in the Open Door Counselling case,
the People of Ireland did so in breach of the Treaty to which
Ireland had acceded in 1973.31
McCarthys statement acknowledges the possibility of
domestic constitutional change qualifying the domestic
legislation which receives Community law into national law,
and a clear statement that it is the Irish Supreme Court not
the European Court of Justice that has the sole authority to
determine the resolution of possible conflicts between
different provisions of the Irish Constitution.
Walsh Js statement (Hederman J concurring) in Grogan
makes the same argument more explicitly, including the fact
that the ECJs response to a preliminary reference under then
Art 177 of the European treaties may not be decisive where
such a decision conflicts with the Irish Constitution:
It has been sought to be argued in the present case that the
effect of the amendment of Article 29 of the Constitution
[the Third Amendment], which was necessary to permit our
adhesion to the treaties of the European Communities, is to

qualify all rights including fundamental rights guaranteed by


the Constitution. The Eighth Amendment of the Constitution
is subsequent in time, by several years, to the amendment
of Article 29. That fact may give rise to the consideration of
the question of whether or not the Eighth Amendment itself
qualifies the amendment to Article 29. Be that as it may, any
answer to the reference received from the European Court of
Justice will have to be considered in the light of our own
constitutional provisions. In the last analysis only this Court
can decide finally what are the effects of the interaction of
the Eighth Amendment of the Constitution and the Third
Amendment of the Constitution.... it cannot be one of the
objectives of the European Communities that a member
state should be obliged to permit activities
31 [1989] IR 753, 770.
14
which are clearly designed to set at nought the constitutional
guarantees for the protection within the State of a
fundamental human right.32
Note that at issue in Grogan was the possibility that an Irish
constitutional amendment subsequent in time to the
amendment providing immunity from the Irish constitution
for European obligations would have limited the immunity
provided by that amendment. As such, Grogan raised the
question on an implied restriction of Community laws basis
in Irish law. Grogan did not raise the issue of an express
restriction of Community laws basis in Irish law.
There are other examples of Irish judges making clear
statements about the limited basis of Community law in Irish
law, and the limited role of the ECJ in interpreting national
law compatibility with Community law. T.F. OHiggins, Chief
Justice of Ireland 1974-1986 and subsequently Judge of the
European Court of Justice, and so, one may assume, not
unaware of the claims of Community law, wrote after his
retirement from the ECJ:
Should a question arise as to whether a particular measure is
so necessitated [this is the test for immunity under the
Third Amendment to the Constitution] it would seem to me
to be one exclusively for the

32 [1989] IR 753, 769. Walsh had earlier mentioned such a


possibility in B Walsh, 'Reflections on the Effects of
Membership of the European Communities in Irish Law' in F
Capotorti (ed) Du droit international au droit de lintgration :
Liber amicorum Pierre Pescatore (Nomos, Baden-Baden
1987) 805-820 .Hogan and Whyte suggest that the later
case of Society for the Protection of Unborn Children
(Ireland) Limited v Grogan and Others (No 5) [1998] 4 IR 343
indicates that it is unlikely that Walsh Js statement in
Grogan [1990] ILRM 350 would nowadays be followed - see
Hogan and Whyte, J M Kelly: The Irish Constitution 535. It
should be noted that Grogan (No 5) merely straightforwardly
applies Community law in the Irish legal order. There is no
explicit rejection of Walsh Js earlier statement and it is not
clear from the judgment that the questions of whether the
Irish courts could reach a decision on the relationship of the
Third Amendment and other provisions of the Irish
Constitution at variance with an opinion of the European
Court of Justice or whether Ireland could be obliged by the
European Union to permit activities which are clearly
designed to set at nought the constitutional guarantees for
the protection within the State of a fundamental human
right were before the court. In the hypothetical
circumstance that European Community law required Irish
courts to apply a Community law obligation which removed
all restrictions on the provision of abortion services within
Ireland or to apply a Community law obligation which
restricted freedom of speech or freedom of worship, it is
submitted that Grogan (No 5) could not be relied upon to
settle the issue in favour of the application of the European
Community law obligation. In this respect, see also Fennelly
and Collins: The Irish Supreme Court cannot, in the final
analysis, renounce its own exclusive power to interpret the
Constitution, including 29.4.5, nor the obligation which the
Constitution imposes to protect the individual rights
guaranteed in it. [Fennelly and Collins write in French
translation by the author] N Fennelly and AM Collins, 'Irlande'
in J Rideau (ed) Les tats membres de lUnion europenne:
Adaptations - Mutations - Rsistances (L.G.D.J., Paris 1997)

263-300 299.
15
High Court under the provisions of Article 34.3.2 of the
Constitution. I cannot see on what basis jurisdiction to decide
what is, essentially, a question as to the validity of a law
having regard to the Constitution can be conferred on or
exercised by any other court.33
Again, the implication is that the domestic law basis for the
operation of Community law in Ireland is Irish law, here Irish
constitutional law, as interpreted by the Supreme Court of
Ireland, and not by the European Court of Justice.
Clear statements of the limited and contingent relationship
between Community law obligations and Irish legal
provisions which make European law effective in national law
are less common than the pervasive reliance on those
national acts of reception in adjudicating European
Community law questions in Irish Courts, or on Irish case
law, such as Crotty, which in turn relied on those national
acts of reception. Every time an Irish judge states that they
are applying directly effective Community law because of the
European Communities Act and the Third Amendment to the
Irish Constitution, they derive the basis of European law from
a national legal source which has both the potential for
incompatibility with European Community law and can be
unilaterally changed by the Oireachtas, or, in the case of an
amendment to the Irish Constitution, by the Oireachtas
together with the Irish people.
This conclusion is supported by other Irish court judgments
such as Teresa Tate v Minister for Social Welfare Ireland, and
the Attorney General,34 in which Carroll J stated: This
section [section 2 of the European Communities Act] is the
conduit pipe through which community law became part of
domestic law.35
From the perspective of European Community law, directly
effective European Community law requires no conduit pipe
to become part of domestic law. From the
33 TF O'Higgins, 'The Constitution and the Communities Scope for Stress?' in J O'Reilly (ed) Human Rights and
Constitutional Law: Essays in Honour of Brian Walsh (Round

Hall Press, Blackrock, Co. Dublin 1992) 227-242 229.


34 [1995] 1 IR 418.
35 [1995] 1 IR 418, 437.
16
perspective of the Irish courts, however, it is Irish law which
provides for directly effective Community law obligations to
be part of domestic law.
The case cited earlier in this paper, Pigs and Bacon
Commission, is also an example: The effect of [Section 2 of
the European Communities Act 1972] is that Community law
takes legal effect in the Irish legal system in the manner in
which Community law itself provides.
In its own conception, of course, the manner in which
Community law itself provides rejects any derivation from
Section 2 of the European Communities Act 1972.36
A recent case in the High Court, Hugh Kearns and Irish
Bartering Services Limited v European Commission,37 shows
the Irish judges step-by-step reasoning for the application of
Community law supremacy in the Irish legal order, first from
the European Communities Act enabled by the
amendments to Art 29 of the Irish Constitution and only then
from Community law itself:
The provisions of Chapter 9 of the Copyright and Related
Rights Act, 2000, which provides remedies in the domestic
jurisdiction of this Member State for Copyright infringements,
cannot in my judgment limit, exclude or take precedence
over the primary law provisions of Articles 288 part 2 and
235 of the E.C. Treaty. By Section 2 of the European
Communities Act, 1972, as amended by the European
Communities (Amendment) Acts, 1973-2003 as enabled by
the several Acts amending Article 29 of the Constitution, it is
provided that:The treaties governing the European Communities...shall be
binding on the State and shall be part of the domestic law
thereof under the conditions laid down in those treaties.
Part II of the Schedule of the Third Amendment of the
Constitution Act, 1972 provides, inter alia that:36 There are differing views as to whether the reliance by
national courts on national legislative provisions to receive

directly effective EC law into the national legal order is itself


contrary to EC law even where such national provisions give
full effect to the obligations of EC law. See, for example, G
Hogan and A Whelan, Ireland and the European Union:
Constitutional and Statutory Texts and Commentary (Sweet
& Maxwell, London 1995); DR Phelan, Revolt or Revolution:
The Constitutional Boundaries of the European Community
(Round Hall Sweet & Maxwell, Dublin 1997) 52-57.
37 [2006] 2 IR 1.
17
No provision of this Constitution invalidates laws enacted,
acts done or measures adopted by the State necessitated by
the obligations of membership of the Communities or
prevent laws enacted, acts done or measures adopted by the
Communities, or institutions thereof from having the force of
law in the State.
In the event of any conflict between E.C. law, particularly
directly effective law, and National Law, even National
Constitutional Law, the effect of Article 10 [formerly 5] and
Article 249 [formerly 189] of the E.C. Treaty is that domestic
law must give way to the E.C. Law provisions. This is clearly
established by the European Court of Justice in a series of
well known cases ...38
The most detailed studies of the relationship between Irish
law and European Community law concur that the
jurisprudence of Irish courts demonstrates that Ireland, while
facilitating legal outcomes compatible with Community law,
does not recognise a direct Community law obligation to
comply with Community law, but rather derives that
obligation from Irish legal sources.
As Diarmuid Rossa Phelan writes in his study of the
relationship of Community law and Irish law, Revolt or
Revolution:
The incompatibility of national courts relying on national law
and jurisdiction for the enforcement of a European
Community law right is one element of the state of
constitutional disobedience that exists in national law and
national courts, the other being the limits to the recognition
of European Community law in national law, the difference

between the national law perception of European Community


law and European Community laws self perception, the
possibility of unilateral denouncement and withdrawal, and
the limits on amendment to incorporate European
Community laws claims.39
Hogan and Whelan, in Ireland and the European Union, also
emphasise the exclusively national legal basis of Community
law in Irish law:
Later adherents [to the EEC] such as Ireland ... acknowledge
expressly or by implication ... many of the incidents of the
constitutional claims of the Communities as expressed by
the European Court of Justice ... They do not really accept
the basis of these claims, however, in so far as these
constitutional provisions and other acts of reception are still
considered, as a matter of national law, to be necessary for
Community constitutional law to have force in the national
legal order and legal
38 [2006] 2 IR 1, 8.
39 Phelan, Revolt or Revolution: The Constitutional
Boundaries of the European Community 57.
18
space. ... The fundamental difference in perspective
between Community law and national law is obscured in a
number of Member States, including Ireland, by what
Rawlings has called, in the United Kingdom context, the
principle of the mirror image ... While Community law is
operative in the United Kingdom legal order, as in that of
Ireland, only by virtue of relevant incorporating provisions of
the European Communities Acts (section 2(1) in the Irish
case, as supplemented by the terms of Article 29.4.3-5 of the
Constitution), it is sought by that act of incorporation to
grant to Community law the effect in the national legal order
which it itself requires. Thus the daily interaction of national
and Community law, operating on fundamentally different
premises, should be conflict-free. ... The problem with this
attempted solution is that the mirror may be flawed.40
In short, Irish courts do not recognise a direct Community
law obligation to apply Community law and disapply contrary
national law. Like the legal orders of many other EU member

states, Irish courts derive the application of European


Community law in the national legal order from national
law.41 If the Oireachtas, or the Oireachtas and the Irish
people together, decided to explicitly amend the Irish law
provisions which give application to the obligations of the
European treaties in the Irish legal order, Irish courts would
require an Irish law argument for the continued effectiveness
of Community law in the Irish legal order. A direct
Community law argument alone would not suffice.
Do Irish courts recognise an Irish law obligation to apply
Community law in place of Irish legislation expressly contrary
to Community law?
If the Irish courts derive the effectiveness of European
Community law from Irish law, and there is no Irish law
obligation to apply treaty obligations in the absence
40 Hogan and Whelan, Ireland and the European Union:
Constitutional and Statutory Texts and Commentary 8-9, 1112. Cf. R Rawlings, 'Legal Politics: The United Kingdom and
Ratification of the Treaty on European Union: Part 1' (1994)
Public Law 254-278
41 TC Hartley, The Foundations of European Community law:
and introduction to the constitutional and administrative law
of the European Community (Fifth edn, Oxford University
Press, Oxford, New York 2003) 244, 243-268; P Craig and G
De Brca, EU Law: Text, Cases and Materials (Oxford
University Press, Oxford, New York 2003) 315; K Alter,
'Explaining National Court Acceptance of European Court
Jurisprudence: A Critical Evaluation of Theories of Legal
Integration' in AM Slaughter, A Stone Sweet and J Weiler
(eds) The European Courts and National Courts Doctrine and
Jurisprudence: Legal Change in its Social Context (Hart
Publishing, Oxford 1998) 227-252 231.
19
of Irish legislation giving execution to such treaty obligations,
is there an Irish law reason to apply Community law if Ireland
legislated to remove or restrict the Irish law basis for the
effectiveness of European Community law obligations?
Irish courts apply Community law obligations in Ireland on
the basis of the European Communities Act in conjunction

with Article 29.4.10 of the Irish Constitution (the provision


originally introduced by the Third Amendment to the Irish
Constitution, subsequently altered by later amendments to
the Constitution consequent on the ratification of later
European treaties). As a result, there are two possible
scenarios whereby Ireland might attempt to legislate
expressly contrary to Community obligations. First, the
Oireachtas might expressly legislate contrary to Community
law obligations by explicitly amending the European
Communities Act; second, the Oireachtas, in conjunction
with a referendum of the Irish people, might adopt a
constitutional amendment explicitly contrary to Community
law obligations.
In the first scenario, the Irish courts, whose current
jurisprudence relates to the application of Community law in
Ireland on the basis of the European Communities Act
together with Art 29.4.10 of the Irish Constitution would have
to consider whether its jurisprudence would provide for the
application of Community law in Ireland through Art 29.4.10
alone, which is to say, without the support of the European
Communities Act.
Ireland has never enacted a law attempting to expressly
legislate contrary to European treaty commitments by
amending the European Communities Act, so there are no
authoritative Irish court decisions directly relating to this
scenario. Nor are there national court decisions which
mention, as part of their reasoning in relation to other
circumstances, the hypothetical situation of Irish laws
expressly designed to derogate from European treaty
obligations by amending the European Communities Act. As
20
such, an answer to this question relies on the interpretation
of the Community law jurisprudence of Irish courts and on
the legal scholarship on the relationship of Community law
and Irish law. It is particularly important to be precise about
the constitutional meaning of Art 29.4.10 of the Irish
Constitution.
Article 29.4.10 states:
No provision of this Constitution invalidates law enacted,

acts done or measures adopted by the obligations of


membership of the European Union or of the Communities,
or prevents law enacted, acts done or measures adopted by
the European Union or by the Communities or by institutions
thereof, or by bodies competent under the Treaties
establishing the Communities, from having the force of law
in the State.
James Casey describes the difficulties which directly effective
European Community law would have created for the Irish
Constitution if such a provision had not been inserted into
the Irish Constitution:
Thus a regulation promulgated in Brussels immediately
becomes part of Irish domestic law, and may be relied upon
in any relevant proceedings before an Irish court. This would
have been quite incompatible with Article 15s vesting of the
sole and exclusive power of making laws for the State in the
Oireachtas, and its trenchant declaration that no other
legislative authority has such power. But Article 29.4.3 was
effective to remove any difficulty on that score. ...
Constitutional barriers having been removed by Article
29.4.3 , the Oireachtas passed the European Communities
Act 1972. The key provision is ...:
From the 1st day of January, 1973, the treaties governing
the European Communities and the existing and future acts
adopted by the institution of those Communities shall be
binding on the State and shall be part of the domestic law
thereof under the conditions laid down in those treaties.
This is plainly effective to incorporate into Irish domestic law
not only the Treaties but all existing and future regulations,
directives, etc., as well as judgments of the Court of
Justice.42
It is possible to create a relatively extensive list of provisions
of the Irish Constitution which might have been incompatible
with Irelands membership of the
42 Casey, Constitutional Law in Ireland 205-206. 21
European Communities and the supremacy and direct effect
of European Community law in the absence of such an
immunity clause.43

The relevant question is whether Article 29.4.10 of the Irish


Constitution is permissive, allowing the otherwise
unconstitutional delegation of competences to be exercised
by the European institutions, or whether it contains an Irish
law requirement of pacta sunt servanda in relation to the
obligations of the European treaties.
The text of the amendment itself, with its negative
instruction, together with much scholarly opinion, supports
the view that the Third Amendment only if the word only
can be suitably applied to such a sweeping provision
prevents the operation of European Community law in
Ireland from being challenged as being contrary to the
provisions of the Irish Constitution. The Third Amendment
does not itself introduce European Community law into the
Irish legal order or require its application. That is the sense
of James Caseys description above, where constitutional
barriers having been removed by the Third Amendment, the
European Communities Act is effective to incorporate [treaty
provisions, secondary legislation of the European institutions
and judgments of the European Court of Justice] into Irish
domestic law.
43 Phelan, Revolt or Revolution: The Constitutional
Boundaries of the European Community 329-332. Discussion
at the time suggests that the approach taken by Irish
authorities was to envisage that European law would
become effective in the Irish legal order through a statute,
with a constitutional amendment required to prevent such a
statute being held unconstitutional by Irish courts see J
Temple Lang, 'Application of the Law of the European
Communities in the Republic of Ireland' Die Erweiterung der
europischen Gemeinschaften (Klner Schriften zum
Europarecht, Heymanns, Kln 1972) 47-64 . For other
discussions of the constitutionality of Irelands membership
of the EEC prior to Irelands accession, see J Temple Lang, 'A
Constitutional Aspect of Economic Integration: Ireland and
the European Common Market' (1963) 12 (2) International
and Comparative Law Quarterly 552-581; J Temple Lang, The
Common Market and Common Law: Legal Aspects of Foreign
Investment and Economic Integration in the European

Community, with Ireland as a Prototype (University of


Chicago, Chicago and London 1966); J Temple Lang, 'The
Republic of Ireland and the EEC - The Constitutional Position:
II' in ME Bathurstand others (eds) Legal Problems of an
Enlarged European Community (Stevens, London 1972) 1723 ; J Lynch, 'The Republic of Ireland and the EEC - The
Constitutional Position: I' in ME Bathurstand others (eds)
Legal Problems of an Enlarged European Community
(Stevens, London 1972) 13-16 .
22
As Diarmuid Rossa Phelan writes in Revolt or Revolution:
Overall, the provision [the Third Amendment] constitutes a
bar to constitutional challenges to European Community law
rules and Irish implementing measures. It is not enabling. It
does not make European Community law rules part of
domestic law.44
By it is not enabling D.R. Phelan means that the Third
Amendment does not by itself enable Community law in
Ireland in the sense of directly introducing Community law
into the Irish legal order. The Third Amendment does,
however, as the passage of Kearns cited above states,
enable the European Communities Act by preventing that
Act from being held contrary to the Irish Constitution.
D.R. Phelan and Whelan write, similarly, in the 1996 FIDE
Report on Irish Constitutional law and European integration:
These constitutional provisions are phrased either in
permissive terms ... or in negative terms... Thus, while they
might enable the State to apply Community law without
obstacle, they do not oblige it to do so. Within the dualist
paradigm of the Constitution of Ireland, a further act of
domestic incorporation was necessary in Irish law to give the
force of law to Community law. This Act benefits from the
constitutional immunity contained in Article 29.4.5o of the
Constitution. This was the European Communities Act,
1972.45
This view is also supported by Barrington Js judgment in
Crotty in the High Court, where it is the European
Communities Act which provides the competence for the
domestic courts of Ireland to apply European Community

law, while the Third Amendment provides only immunity


from constitutional challenge:
These acts [the Third Amendment] may have been sufficient
to make Ireland a member of the European Community in
international law as from 1 January 1973. ... But these acts
were not sufficient in themselves to make Ireland an
effective member of the Community. To make Ireland an
effective member as of 1 January 1973 it was necessary to
make the Treaty part of the domestic law of Ireland. To
achieve this it
44 Phelan, Revolt or Revolution: The Constitutional
Boundaries of the European Community
338-339.
45 Phelan and Whelan, 'National constitutional law and
European integration: FIDE Report' 28.
23
was necessary to pass an Act of the Oireachtas pursuant to
the provisions of Article 29.6 making the Treaty of Rome part
of the domestic law of Ireland and giving the institutions of
the Community a status in Irish domestic law. Had the
Oireachtas not passed the European Communities Act 1972
Ireland might still have been a member of the Community in
international law but it would have been in breach of its
obligations in international law under the Treaty of Rome and
under the Treaty of Accession. This however would not have
been a matter in relation to which the domestic courts of this
country would have had any competence because the Treaty
would not have been part of the domestic law. The immunity
from constitutional challenge conferred by the second
sentence of the Third Amendment on laws enacted, acts
done, or measures adopted by the Community or its
institutions would therefore have been meaningless as these
laws, acts or measures would not have been part of the
domestic law of this country. To make them part of the
domestic law of this country the European Communities Act
1972 was necessary.
... It is these matters alone which are given immunity from
constitutional challenge by the second sentence of the Third
Amendment. But such of these matters as are acts of the

institutions of the Communities derive their status in


domestic law from the European Communities Act, 1972. If
the second sentence of the Third Amendment is the canopy
over their heads, the Act of 1972 is the perch on which they
stand.46
Note particularly that Crotty states that Community law
enters the Irish legal order subject to Article 29.6 of the Irish
Constitution, by which Irish legislation is needed for the
application of treaty obligations in Ireland. According to
Crotty, it is the European Communities Act and not the Third
Amendment to the Irish Constitution which gives the Irish
courts their competence to apply European Community law.
The meaning given to the Third Amendment by the Irish
court in Crotty is vital for the contemporary application of
Community law in Ireland. Without it, the application of
Community law in Ireland would be unconstitutional. The
Irish courts have not, however, included pacta sunt servanda
in relation to the European treaties in their understanding of
Third Amendment. The latter concept is separate from the
significant role the court has acknowledged to the Third
Amendment and is not necessarily implied by the courts
jurisprudence.
46 [1987] IR 713, 757, 758.
24
In the recent High Court case of YNR v MN,47 a case related
to divorce, the court did discuss the reasoning behind the
application of a Community regulation in Ireland, mentioning
the Third Amendment (now Art 29.4.10), without referring to
the European Communities Act.
In YNR v MN, however, the argument was advanced by a
party to the case that another provision of the Irish
Constitution related to divorce, Art 41.3.2, would restrict the
application of the provision of the Constitution originally
introduced by the Third Amendment. In response to this
argument, the court said that Art 29.4.10 provided
constitutional protection to Community regulations and that
there was no hierarchy of constitutional rights in play in the
case which would render that constitutional protection
inoperative. The court did not state that directly effective

regulations were applicable in Ireland through the effect of


Art 29.4.10 in the absence of the European Communities Act.
It addressed only that part of the reasoning for the
application of Community law in Ireland implicated by the
argument presented to the court, which related to an aspect
of the content of Art 29.4.10 the bar Art 29.4.10 provides
against judicial review of Community acts for compatibility
with other provisions of the Irish Constitution which is both
widely accepted and entirely consistent with the view that
Ireland can legislate contrary to Community law by
amending the European Communities Act. The argument
that Art 29.4.10 provides protection for Community law from
other provisions of the Irish Constitution is not evidence that
Art 29.4.10 provides an Irish law obligation of pacta sunt
servanda for directly effective Community law
Many Irish legal scholars agree that Ireland could legislate
contrary to European Community law obligations by
amending the European Communities Act.
47 [2005] 4 IR 552.
25
Diarmuid Rossa Phelan states:
The legislation [the European Communities Act] has the
same problems vis--vis subsequent legislation as the
European Community [sic] Act in the United Kingdom. If a
subsequent statute enacted by the democratically elected
Oireachtas specifically derogated from a European
Community rule, could this 1972 Act be invoked against it?
There is no existing doctrine to say that it could. There is
nothing in Irish law to weaken the effectiveness of a statute
saying European Community law shall not be part of the
domestic law of this state. Or European community law
shall not be part of the domestic law of this state so far as it
conflicts with fundamental rights protected by the
constitution. European Community law has a similar status
in the Irish hierarchy of norms as a statute, the status being
conferred by a statute which benefits from a jurisdictional
immunity of debated extent. European Community law does
not have a status superior to constitutional law, rather the
interaction of the 1972 Act and Article 29.4 generally

preserves its application.48


Such a statute could equally remove the effect of any
Community law obligation.
Hogan and Whelan, commenting on D.R. Phelans Revolt or
Revolution, also allow for the possibility of Irish legislation
explicitly contrary to Community law:
Phelan makes three remarks about section 2 of the European
Communities Act, 1972 ... First, this Act cannot prevent its
later repeal by another Act of the Oireachtas; this, of course,
is true (save in the extreme case that the legislative power
of the Oireachtas under Article 15 of the Constitution is seen
as being among the provisions of the Constitution disabled
from preventing Community law having the force of law in
the State), but it is in practical terms not very important. It is
implicit in the continued autonomous subsistence of a legal
order which accommodates itself to the existence and claims
of another (rather than accepting those claims in their own
terms) that the possibility persists of abandoning that
accommodation; until that occurs, however, the
accommodation, if well conceived in the terms of the
accommodating legal order, should proceed smoothly. ...
One assumes here, as has been done in the United Kingdom,
that the Community law requirement of primacy which is
introduced into Irish law by section 2 of the 1972 Act will
be found, in domestic terms, to
48 Phelan, Revolt or Revolution: The Constitutional
Boundaries of the European Community 333-334, also 352.
26
exclude implicit amendment by an inconsistent later statute
of the 1972 Act or of Community law introduced into
domestic law by its terms.49
(The claim that the possibility of legislating contrary to
Community law is in practical terms not very important
depends of course on the composition of the Oireachtas.)
In a particularly relevant article written at the time of
Irelands accession to the Communities, John Temple Lang
addressed the constitutional meaning of the Third
Amendment to the Irish Constitution. He started from the
position that the amendment to the Constitution itself only

provided for constitutional immunity, and did not confer any


other special status on Community law:
Under Article 29.6 of the Irish Constitution, the reception of
Community law into Irish law can be effected only by an Act
of the Irish legislature. The proposed amendment to the
Constitution validates any Community measure which would
be otherwise inconsistent with the Constitution, but it does
not confer any special status in any other respect on either
Community measures or national measures adopted to
implement Community obligations.50
Temple Lang then considered the question whether national
legislation contrary to directly effective Community legal
obligations, subsequent to Irelands membership of the
Community, would be valid in Irish law, even if a breach of
Irelands European treaty commitments:
It follows that, even as amended, the Irish Constitution will
not give an express answer to the question: if the Irish
legislature in the future passed an Act inconsistent with the
Act enacting the Treaty, which Act would prevail? ... The
question may be academic ... because a deliberate breach of
the Treaty would be a repudiation of Irelands commitments
in the EEC. ... Since Irish law does not bind the
49 Hogan and Whelan, Ireland and the European Union:
Constitutional and Statutory Texts and Commentary 13-14,
15.
50 J Temple Lang, 'Legal and Constitutional Implications for
Ireland of Adhesion to the EEC Treaty' (1972) 9 Common
Market Law Review 167-178 171. For Temple Langs
consideration of this issue several prior to Irelands
accession to the EEC membership, naturally without
reference to the text of the amendment to the Irish
Constitution as actually adopted, see Temple Lang, The
Common Market and Common Law: Legal Aspects of Foreign
Investment and Economic Integration in the European
Community, with Ireland as a Prototype 55-66; Temple Lang,
'Application of the Law of the European Communities in the
Republic of Ireland'
27
legislature to enact even a treaty which is binding on Ireland

in international law, it would be logical to say that the


legislature has power under Irish law to repeal or amend the
Act enacting the treaty in question, even where the repeal or
amendment is in breach of Irelands international law
obligations. This is the position in England ...51
Temple Lang proposed three arguments by which Irish
legislation explicitly contrary to Community obligations
might be contrary to Irish law.
First, such legislation would be contrary to Irelands treaty
obligations and therefore barred by Art 29.3 of the Irish
Constitution (Ireland accepts the generally recognised
principles of international law ...).
Second,
If Irelands entry into the Communities was important
enough to necessitate a referendum and a special
amendment to the Constitution, and if the people approved
the amendment, it would follow that the Irish legislature
should honour the obligations of the State under those
Treaties, once undertaken. This suggests that the legislature
might not have power under the Constitution (as amended)
to act in breach of the Treaties.52
Third, by analogy with the transfer of powers from the United
Kingdom to the legislatures of former subject territories upon
independence, Temple Lang suggested that powers
transferred jointly with other States are irrevocably assigned
and not delegated.
Temple Langs proposals reveal the difficulty, even for an
observer highly sympathetic to the European institutions, of
finding Irish law reasons why Irish legislation expressly
inconsistent with the Act enacting the Treaty would not
prevail over directly effective Community law obligations in
the Irish courts.
Irish courts have consistently rejected Temple Langs first
argument, that Art 29.3 of the Irish Constitution incorporates
pacta sunt servanda in the Irish legal order.
51 Temple Lang, 'Legal and Constitutional Implications for
Ireland of Adhesion to the EEC Treaty' 171-172.
52 Temple Lang, 'Legal and Constitutional Implications for
Ireland of Adhesion to the EEC Treaty' 173.

28
Temple Langs second proposal, a reference to the
importance of the referendum, may reveal a lack of
confidence about what the text of the Third Amendment
specifically provides. All provisions of the Irish Constitution
are important. Surely it could not be argued that an
amendment which provided constitutional immunity for the
application of European Community law in the Irish legal
order but which did not, as Temple Lang put it, confer any
other special status was unimportant. The obligations
that derive from Irish constitutional provisions depend on
their specific meaning. A basic element in establishing the
specific meaning of constitutional and other legal provisions
involves distinguishing whether the matter regulated is
permitted or, alternatively, required. Ireland could have
amended its Constitution to require that European law would
prevail over subsequent legislation inconsistent with the Act
enacting the Treaty, but it did not do so, as Temple Langs
discussion of the amendment itself conceded.
It is worth noting, in this regard, that the Irish government at
the time originally proposed a constitutional amendment
which would have protected from constitutional challenge
measures which were consequent on Irelands membership
of the European Union. When the proposed amendment was
criticised as too broad, the amendment was revised to
protect only measures necessitated by the obligations of
membership.53 Irish courts have maintained a restrictive
view concerning the scope of measures necessitated by the
obligations of membership which benefit from the Third
Amendments protection from constitutional challenge. In
Crotty, the courts found that ratifying the Single European
Act was not necessitated by Irelands obligations of
membership of the EU, with the result that a further
constitutional amendment and thus a referendum was
required for Ireland to ratify the Single European Act and
53 Temple Lang, 'Legal and Constitutional Implications for
Ireland of Adhesion to the EEC Treaty' 169-170.
29
subsequent European treaties.54 Some, like former

Taoiseach John Bruton, have criticised the unnecessarily


restrictive wording of the Third Amendment and the
interpretation given to it by the Irish courts, particularly for
the result that subsequent European treaties require the
approval of the Irish people in a referendum.55 Despite such
criticism, however, it is the text of the Third Amendment
itself, and not some general importance to be attributed to
an amendment relating to Irelands membership of the
European Union, which guides Irish court decisions.
As for Temple Langs third argument, a sceptic might find the
inability of the United Kingdom to reassert powers granted to
other territories now independent, an argument based above
all on the impracticality of a unilateral repeal of, for example,
the Canada Act 1982 by the UK Parliament, to be a dubious
analogy for whether Ireland (or the United Kingdom, or
Canada, for that matter) could revoke powers delegated to
an international organisation in order to reassert them within
their own territory.56
54 For a discussion and references, see Hogan and Whelan,
Ireland and the European Union: Constitutional and Statutory
Texts and Commentary 25-49.
55 The origin of this difficulty is in the unnecessarily
restrictive wording in the unnecessarily restrictive wording of
the original constitutional amendment to authorize Irelands
original accession to the European Union (then the European
Community), and from the subsequent interpretation of this
by the Supreme Court in the Crotty case. There is a strong
argument for revising this provision of the Constitution. The
Irish people, of course, should be required to be consulted, in
referendum, before Ireland would agree to a binding Treaty
commitment to a new area of activity, or to a qualitative
change in the nature of activity within the European Union.
Referenda should not, however, be required, to approve E.U.
Treaties which just incrementally develop clear commitments
already given. The Government and the Oireachtas must be
given a greater freedom than they now have to ratify E.U.
Treaties that do no more than incrementally develop existing
commitments. Houses of the Oireachtas Joint Committee on
European Affairs, The Future of the European Union (2002):

section 2.17-2.18. Available at


http://europa.eu/constitution/futurum/documents/press/pr01
0202_en.pdf.
56 One might add here that there is also reason to doubt
Temple Langs view of the UK law perspective on
parliamentary legislation which infringed on the
independence of former British territories. To take one
example, in a contemporaneous article, considering the
possible application of a similar argument in relation to the
UKs membership of the EEC, Trindade stated ... there is no
evidence whatsoever that an Act of the United Kingdom
Parliament will be declared invalid by the British courts if the
statute is enacted contrary to section 4 of the Statute of
Westminster 1931 or the various Independence Acts. We can
be fairly certain that the courts in the former dominions or in
the independent countries of the Commonwealth would not
give such a statute any effect in their respective territories,
but that is not the same thing as saying that the courts in
the United Kingdom would declare such an Act of Parliament
as invalid or of no effect. On the contrary, it seems that the
courts in the
30
Temple Lang concedes that his view is superficially
incompatible with the dualist Article 29.6 of the Irish
Constitution, which does not provide an exception to the
power of the Oireachtas to determine the application of
international agreements in national law in relation to
powers transferred jointly with other states; and allows that
the view that the Oireachtas has the power to legislate
contrary to international obligations, including the power to
legislate contrary to Community law obligations after Ireland
has joined the Community, is the traditional one,57 and, if
correct, could result in conflicts between Irish law and
directly effective Community law. 58
Based on the most detailed scholarship on the relationship of
Irish and European Community law, there is therefore
considerable scholarly support for the view that Ireland could
explicitly legislate contrary to directly effective European
Community law obligations by amending the European

Communities Act. Such legislation would be contrary to


Irelands international obligations under the European
Treaties, but Irelands courts would give effect to the Irish
legislation and not to Irelands obligations under the
European treaties.
United Kingdom would be bound to say that the statute was
a valid Act of the United Kingdom Parliament. FA Trindade,
'Parliamentary Sovereignty and the Primacy of European
Community Law' (1972) 35 Modern Law Review 375ff 388.
Certainly recent judgments do not indicate that English
courts accepts such a view in relation to Community law
(See, for example, Thoburn v Sunderland City Council [2003]
QB 151). It is perhaps fair to state that Temple Langs
argument is based more on the claim that these principles
are logical as legal principles in any country than any direct
derivation from English law Temple Lang, The Common
Market and Common Law: Legal Aspects of Foreign
Investment and Economic Integration in the European
Community, with Ireland as a Prototype 58. In his 1966 book,
Temple Lang concedes that both the Dils unilateral repeal,
in 1921, of the Act of Union passed by the Irish Parliament in
1800, despite the fact that the British and Irish Parliaments
had separately enacted the Act of Union, and the legislation,
in the 1930s, of the Irish Free State Parliament contrary to
the Anglo- Irish treaty, also separately enacted by both
parties, pose difficulties for the view he is advancing Temple
Lang, The Common Market and Common Law: Legal Aspects
of Foreign Investment and Economic Integration in the
European Community, with Ireland as a Prototype 57, 60
(footnote 93).
57 If the traditional view that the Irish legislature has power
under Irish law to enact legislation even in breach of
Irelands treaty obligations is correct, conflicts between Irish
law and directly applicable rules of Community law could
arise. Temple Lang, 'Legal and Constitutional Implications for
Ireland of Adhesion to the EEC Treaty' 174. Also: The view
that the Irish Parliament cannot constitutionally enact
legislation inconsistent with a binding treaty has no direct
authority to support it. Temple Lang, The Common Market

and Common Law: Legal Aspects of Foreign Investment and


Economic Integration in the European Community, with
Ireland as a Prototype 65.
58 Temple Lang, 'Legal and Constitutional Implications for
Ireland of Adhesion to the EEC Treaty' 173.
31
One thorough discussion of the relationship between Irish
and European Community does offer an alternative
conclusion on Irelands ability to legislate contrary to
Community law by amending the European Communities
Act. Hogan and Whelan, after fair-mindedly considering the
possibility that an explicit subsequent statute would indeed
permit the national legislator to abandon adherence to
Community law (see above: this of course is true ...), do
briefly consider an alternative understanding:
One might add, in any event, that the second clause of
Article 29.4.5 may indeed, on another construction give
constitutional force to Community law, once incorporated;
this task of incorporation being left to ordinary legislation
because of the frequency with which it must occur, very
often for relatively unremarkable amendments...59
With the greatest respect for these distinguished scholars,
and with recognition of the tentative manner in which this
argument is introduced, it is submitted that this construction
is difficult to reconcile with the text of either the Third
Amendment itself or Section 2 of the European Communities
Act. This view would also not seem to be compatible with the
discussions of Temple Lang and others of the limited
meaning of the Third Amendment, nor with prominent
judgments of Irish courts, such as Barrington Js statement in
Crotty that the introduction of European law in the Irish legal
order is subject to Art 29.6 of the Constitution or Costello Js
statement in Pigs and Bacon Commission which attributes
the effect of European Community law in Ireland directly to
Section 2 of the European Communities Act. Hogan and
Whelan provide no court decisions in support of the possible
construction that what is now Art 29.4.10 gives force to
Community law in Ireland rather than merely permitting the
European Communities Act to do so. The alternative

interpretation, that the European Communities Act gives


force to European Community law in the Irish legal order,
59 Hogan and Whelan, Ireland and the European Union:
Constitutional and Statutory Texts and Commentary 15.
32
while the Third Amendment protects the European
Communities Act from claims of lack of constitutionality,
relies, on the other hand, on a straightforward reading of
both the statute and the constitutional amendment.60 61
60 Only a few other authors explicitly discuss whether
Ireland could legislate contrary to European Community law
and none with thoroughness comparable to DR Phelan,
Hogan and Whelan, or Temple Lang. Dennis Morris, in the
course of arguing that the United Kingdom Parliament cannot
legislate contrary to Community law, states briefly that Irish
judges would not accept that the Oireachtas can legislate
contrary to Community law, because the Oireachtas, not
being sovereign, is subject to the Irish Constitution and the
Irish relationship with the European Communities is
constitutionally sanctioned - see D Morris, 'The Road to
Brussels - Two Routes Compared' (1988) 9 Statute Law
Review 33-61 54. It is certainly the case that the Oireachtas,
not being sovereign, could be made subject to an Irish
constitutional obligation preventing it from legislating
contrary to Community law, but it is submitted here that the
Third Amendment to the Irish Constitution did not contain
that obligation. Jean- Pierre Puissochet, considering whether
European Community law in Ireland could be suspended or
repealed by Irish legislation, argues that the Irish judge
would be in a good position to assure the supremacy of
European law. However, Puissochets argument is based
largely on the view that Art 29.3 of the Irish Constitution may
contain the obligation pacta sunt servanda, which is not
correct see J-P Puissochet, L'largissement des
Communauts europennes; prsentation et commentaire
du trait et des actes relatifs l'adhsion du Royaume-Uni,
du Danemark et de l'Irlande. (ditions techniques et
conomiques, Paris 1974) 129, also 127. Brian Walsh, writing
soon after the time of Irelands joining the European

Communities, gave a conference talk in Luxembourg


indicating his view that Irish judges would not permit the
Irish legislature to legislate contrary to European Community
law: If this national law expressly stipulated that it must
prevail over Community law, it is true that the judges would
find themselves in a difficult situation. It would be possible
for them to declare that article 2 of the 1972 law had the
effect of preventing the legislator from promulgating such a
law, as long as article two itself was not expressly abrogated,
an abrogation which could result, in effect, of a declaration
by the legislator that Ireland was leaving the Community. If
judges decided that article 2 of the 1972 law prevents the
national legislator from promulgating such a law, one could
say that the judicial decision was incorrect in that it created
an illegitimate obstacle to legitimate legislative power. On
the other side, one could say that the constitutional
amendment specified that no article of the Constitution
could prevent the direct application of the treaties. It is
evidently impossible to speculate on the result of such a
scenario. My opinion is that the decision would maintain the
fundamental law, which is to say the treaties and our law of
1972 in consequence of the application of this law see B
Walsh, 'Perspectives du Droit Communautaire en Irelande' La
jurisprudence europenne aprs vingt ans dexprience
communautaire (Klner Schriften zum Europarecht,
Heymanns, Kln 1976) 27-33 31 [Walsh writes in French
translation by the author]. While Walsh is correct that the
Third Amendment does specify that no article of the
Constitution could prevent the direct application of the
treaties, the Amendment does not itself require the
application of Community law in Ireland, as the discussions
of Temple Lang and others emphasise. There must also be
considerable doubt that Irish law requires that the Irish
courts take upon themselves the role of expelling Ireland
from the European Community in the event of a decision by
the Oireachtas to selectively remove the application of part
of European Community law in Ireland by an express
amendment to Art 2 of the 1972 Act.
61 Many other scholars of the relationship of Community and

Irish law do not explicitly consider the question of whether


the Oireachtas can legislate contrary to Community law.
Their understandings of the reasons for the application of
Community law may nevertheless, depending on meaning
they attribute to the Third Amendment to the Irish
Constitution, support, or fail to support, that possibility. It is
fair to summarise that there is considerable, but not
unanimous, support for the view that directly effective
European Community law enters the Irish legal order not on
account of the Third Amendment, but via the European
Communities Act, 1972, subject to Article 29.6 of the Irish
Constitution. Caseys discussion of Article 29.4.3 does not
support the view that it gives constitutional force to
Community law in Ireland, see Casey, Constitutional Law in
Ireland 208-214. Fordes discussion of European Community
law does not consider the interaction of 29.4.3 and the
European Communities Act in detail. Forde writes In 1972
the Constitution was amended, incorporating what is 29.4.3,
authorizing the State to become part of these Communities
and giving legal precedence to measures adopted by them
or
33
enacted in order to comply with the obligations of
membership Forde, Constitutional Law 252 and indicates
that the European Communities Act was passed in order to
give full effect in Irish law to the EC Treaties and measures
adopted by the EC institutions, citing Barrington J in Crotty
Forde, Constitutional Law 258, a view compatible with the
immunity view of 29.4.3. However, later Forde writes
Provided that they are necessitated by obligations of
membership, Article 29.4.10 of the Constitution grants the
EC regime precedence over Irish law and even over the
Constitution itself. On the immunity view of 29.4.3, it is
rather the European Communities Act which makes EC law
part of the domestic law of Ireland, and 29.4.3 grants EC law,
as introduced by the European Communities Act,
precedence over Irish law and even over the Constitution
itself (though some might also claim that the immunity was
not total in relation to all aspects of the Irish Constitution).

Carolan, in a discussion of the View of Ireland on


Supremacy, agrees that Irish law requires an Irish law basis
for Community laws effectiveness in Ireland (Thus, from the
Irish perspective, European Union law is supreme because
Irish domestic law, and in particular Irish constitutional law,
has been amended to provide for the supremacy of
European Union law. B Carolan, EU law for Irish Students
(Gill & Macmillan, Dublin 2004) 99), but locates that Irish law
basis in what is now 29.4.10 of the Irish Constitution.
Carolans short discussion contains no consideration of the
more limited immunity clause view of 29.4.10 or indeed
any mention whatsoever of the European Communities Act.
McMahon and Murphy do not consider directly the case of
legislating to amend the European Communities Act but their
approach is compatible with the view that it is the European
Communities Act, and not the Third Amendment, which
introduces Community law into the Irish legal order: The
effect of this article [Art 29.6 of the Irish Constitution,
specifying Irelands dualist approach to international law] is,
briefly, as follows: international treaties are not part of
domestic Irish law until they are received, or brought home,
by an Act of the Oireachtas. A separate reception process is
necessary before treaties create national, as opposed to
international, obligations. Thus Ireland, like England,
subscribed to the dualist view in relation to this matter. It
could be argued that the Third Amendment to the
Constitution, mentioned above, might have overridden this
requirement in relation to Community matters, but it was felt
that a statute clearly complying with the requirements of
Article 29.6 would be a more desirable method of dealing
with the problem in order to dispel any doubts on the matter.
... Provisions of the Treaties establishing the European
Communities and acts of the Community institutions which
are considered to be directly applicable by the European
Court have full legal effect in Ireland by virtue of the
European Communities Act, 1972, and require no specific
legislative response to achieve this effect. BME McMahon
and F Murphy, European Community Law in Ireland
(Butterworth (Ireland), Dublin 1989) 272, 276; Similarly, BME

McMahon, 'EEC Membership and the Irish Legal System'


(1984) 3 Irish Studies 57-78 60-61, 68; Similarly, F Murphy,
'The European Community and the Irish Legal System' in D
Coombes (ed) Ireland and the European Communities: Ten
Years of Membership (Gill & Macmillan, Dublin 1983) 29-42
30 "[Secondly,] the Community Treaties and the Accession
Treaty had to be approved by the Oireachtas in accordance
with article 29 paragraph 6 of the Constitution ..." . Henchys
understanding is that the European Communities Act makes
Community law effective in Ireland, while the Third
Amendment prevents the European Communities Act from
being held unconstitutional: As far as Ireland is concerned,
the Oireachtas has enacted by s. 2 of the European
Communities Act, 1972, that not alone the Treaties
governing the European Communities but also the existing
and future acts adopted by the institutions of those
Communities, shall be binding on the State and shall be part
of the domestic law under the conditions laid down in the
Treaties. Unless that provision is held not to have been
necessitated by Irelands membership of the E.E.C, the Third
Amendment would preclude it from being held repugnant to
the Constitution. Henchy, 'The Irish Constitution and the
E.E.C.' 22-23. Robinsons view is that it is the European
Communities Act, in line with Art 29.6 of the Irish
Constitution, rather than the Third Amendment or the direct
obligations of Community law, which allows Irish judges to
apply Community law: Section 2 [of the European
Communities Act 1972] provides that these treaties, and the
existing and future acts adopted by the institutions of the
Communities, shall be binding on the State and shall be
part of the domestic law thereof under the conditions laid
down in those treaties. This section was necessary in order
to render Community Law part of the domestic law of the
State. The Third Amendment of the Constitution Act 1972
had amended the 1937 Constitution to enable this to be
done, but it was still necessary for the Irish Parliament, the
Oireachtas, to pass legislation in this way because of the
provisions of Article 29 of the Constitution. Article 29, section
6, provides: No international agreement shall be part of the

domestic law of the State save as may be determined by the


Oireachtas. It is doubtful, therefore, whether Irish courts
would have been willing to recognise and enforce
Community law in the Irish courts without such
implementation by the Oireachtas, despite the fact that
certain provisions of the Treaties and Regulations under
Article 189 would be regarded as self-executing. MT
Robinson, 'The Irish European Communities Act 1972' (1973)
X Common Market Law Review 352-354 352 [Italics in
original]. Fennelly and Collins
34
In summary then, the application of European Community
law in Ireland is derivative of an Irish statute, the European
Communities Act, which is not subject to implied amendment
or repeal by subsequent Irish statutes, but remains
potentially subject to explicit amendment or repeal by
subsequent Irish statutes. Irish courts do not
adopt the view that the Third Amendment provides for
constitutional immunity only, and that the European
Communities Act is necessary for the application of
Community law in Ireland in line with the dualist conception
of the Irish Constitution. Taking account of its dualist
understanding of international treaties, Ireland equally
legislated, under the forms of the European Communities
Acts, laws seeking to give full effect to article 29.4.3 of the
Constitution Fennelly and Collins, 'Irlande' 268, This
amendment [The Third Amendment to the Constitution] is
the indispensable condition for the validity and acceptance
of Community law in Ireland. Some points are worthy of note.
The most radical aspect of this constitutional provision is
that, under the single reservation that suitable legislation of
application is adopted, it deprives the Constitution itself of
all efficacy in relation with European Community law. [Here a
footnote refers to a later discussion of limitations in this
regard, including the Grogan litigation]. This latter result
depends essentially on the observation of the criteria of
necessity, widely discussed in court decisions. The
amendment has been described as equivalent to a
astonishingly wide immunity clause and as indicating that

Community law has been received on its own very


demanding terms in Irish law [cf. Hogan and Whelan,
Ireland and the European Union: Constitutional and Statutory
Texts and Commentary 7]. All the same, it does not itself
confer on the treaties or the rules derived from it the force
of law in the State. A strict attachment to the dualist
concept in relation to international treaties resulted in the
adoption of a number of European Communities Acts by the
Oireachtas between 1972 and 1995. Fennelly and Collins,
'Irlande' 269. [Fennelly and Collins write in French
translation by the author]. It is difficult to draw clear
conclusions from Fergus Ryans brief discussion of the
supremacy of Community law. On the one hand, Ryan states
that the rule in Art 29.6 of the Constitution does not apply to
the laws and institutions of the European Union, FW Ryan,
Constitutional Law (Round Hall Sweet & Maxwell, Dublin
2002) 37. (This claim would appear to be contrary to
Barrington Js judgment in Crotty, not to mention the text of
the European Communities Act itself, although it is certainly
true that the laws of the European Union do not require
incorporation one-by-one by specific acts of the Oireachtas
in the normal dualist manner). On the other hand, Ryan
states that the direct effect of European law is permitted by
the Third Amendment to the Irish Constitution, but further
facilitated by the European Communities Act 1972, which
latter automatically makes Community law part of Irish law
Ryan, Constitutional Law 40. The latter understanding would
be compatible with the right of the Oireachtas to legislate
contrary to Community law by amending the European
Communities Act. Byrne and McCutcheons discussion of the
implementation of European Community law in Ireland does
not contain a full discussion of the division of labour between
the Third Amendment and the European Communities Act,
but clearly leans toward a claim that Third Amendment
directly introduces Community law into the Irish legal order.
They write both that the Third Amendment permits the laws
established by the European institutions to have priority over
Irish law and that the Third Amendment makes Community
law part of the domestic law of Ireland, see R Byrne and JP

McCutcheon, The Irish Legal System (Butterworth (Ireland),


Dublin 2001) 642. As for the European Communities Act,
Byrne and McCutcheon claim that In some respects, it might
be said that s 2 of the 1972 Act merely repeats in another
form what is already explicitly contained in Article 29.4.7 of
the Constitution. Nonetheless, it does provide an explicit
statement that the Treaties and the acts of the Community
institutions are part of the domestic law of the State. and
that The combination of Article 29.4.7 of the Constitution
and the European Communities Act 1972 has given effect in
general terms to the Treaties of the European Community
and Union. [with the consequence that no domestic
implementing measures are required for Community
Regulations] Byrne and McCutcheon, The Irish Legal System
643, 665. David Gwynn Morgan writes EEC law is part of
Irish law. This result was brought about by the European
Communities Act, 1972 and Art 29.4.3 which was an
amendment added to the Constitution in 1972 ... In most
cases, domestic Irish courts have jurisdiction over actions
involving EEC law. However, without more, there would be a
danger that the domestic court systems of each of the
member states would give varying interpretations of EEC
law. To meet this difficulty the EEC Treaty (which is part of
Irish law, by virtue of the 1972 amendment) includes an
article (Art 177) which provides as follows: ... DG Morgan,
Constitutional Law of Ireland (Second Edition edn, Round Hall
Press, Blackrock, Co. Dublin 1990) 195- 196.
35
apply Irish legislation enacted posterior to European
Community law where such laws are contrary to European
Community law, unless such Irish legislation were to
explicitly amend the scope of the European Communities Act
by which European Community law receives application in
the Irish legal order.
As for the second scenario, if the Oireachtas and the Irish
people enacted a constitutional provision explicitly contrary
to Community law obligations, the Irish courts, whose
current jurisprudence relates to the application of
Community law in Ireland on the basis of the European

Communities Act together with Art 29.4.10 of the Irish


Constitution, would have to consider whether Irish
jurisprudence would provide for the application of
Community law in Ireland where the Irish constitutional
legislator had explicitly attempted to deprive it of effect.
The jurisprudence of Irish courts on the relationship of
Community and Irish law provides no reason to believe that
Irish courts would apply Community law in the place of an
expressly contrary Irish constitutional amendment. Irish
courts derive the effect of Community law obligations in
Ireland from Irish law. All Irish law, including previously
enacted Irish constitutional law and statute law, can be
changed by constitutional amendment.62 On that basis,
Ireland could legislate contrary to Community law by an
explicit constitutional amendment.
62 It has been argued that there could be possible
limitations on amendment of the Irish constitution in relation
to Irish constitutional law natural law rights. See Phelan,
Revolt or Revolution: The Constitutional Boundaries of the
European Community 358-367 for a discussion of possible
limits to the amendment of the Irish Constitution derived
from natural law. The more common view, supported by Re
Article 26 and the Information (Termination of Pregnancies)
Bill 1995 [1995] 1 IR 1, is that the Irish peoples power to
amend the Constitution is not restricted by fundamental
natural law rights. See Hogan and Whyte, J M Kelly: The Irish
Constitution 2096-2097, see also the comparative discussion
in R O'Connell, 'Guardians of the Constitution:
Unconstitutional Constitutional Norms' (1999) 4 Journal of
Civil Liberties 48-75. Whether or not there are limits on
amendment of the Irish Constitution derived from natural law
rights does not, however, affect the argument advanced
here. There is no reason to believe that the application of
Community law in Ireland might fall into the limited category
of fundamental natural law rights.
36
(As we have seen, there is considerable evidence from court
decisions and scholarly opinion that Irish courts would give
effect to Irish legislation contrary to Community law which

amended the European Communities Act. The recourse to a


constitutional amendment, on that view, would not be
ineffective, but it would be excessive to the requirement of
legislating contrary to Community law.)
Even scholars who view the effect of Community law in
Ireland as deriving from the Irish Constitution, rather than
the European Communities Act, accept that the possibility
that an Irish constitutional amendment could disapply
Community law in Ireland.63
Conclusion
In conclusion, there is no Irish law obligation to apply treaty
obligations in place of contrary Irish law. Irish courts do not
recognise a direct Community law obligation to apply
Community law in place of contrary Irish law. There is no
Irish constitutional law obligation to apply Community law in
the absence of the European Communities Act as enabled by
provisions of the Irish Constitution. As a result, Ireland could
legislate contrary to Community law. Such legislation could
be made either by
63 For example, Carolan, in his brief discussion of European
law supremacy in Irish law: Thus, from the Irish perspective,
European Union law is supreme because Irish domestic law,
and in particular Irish constitutional law, has been amended
to provide for the supremacy of European Union law. This
arguably contrasts with the perspective of the Court of
Justice of the European Communities. The court view seems
to be that by reason of accession to the European Union,
Ireland irrevocably surrendered a measure of national
sovereignty over certain limited areas. The tension between
European Union and national views of the supremacy of
European Union law could arise if Ireland amended its
constitution to provide for the supremacy of national law in
one of the areas covered by European Union law. That is, if
Ireland took: a subsequent unilateral act incompatible with
the concept of the European Union. [Carolan quotes Costa]
From the viewpoint of the Court of Justice, amending the
Irish Constitution would not affect the supremacy of
European Union law. It is not clear that Ireland would have
the same view of the matter. However, until such time as

European Union and Irish law seriously clash over a concrete


issue, this tension is unlikely to boil over into a real issue.
Carolan, EU law for Irish Students 99. Also Forde: Whether
this clause [29.4.10] precludes amending the Constitution, in
order to establish a somewhat different relationship between
the State and the EC/EU, is debatable: it would appear to be
subject to Article 46, which permits [a]ny provision of the
Constitution to be amended in a referendum carried out in
the manner stated here. Forde, Constitutional Law 262.
Fergus Ryan allows that, if Walsh J in Grogan is correct,
constitutional amendments subsequent in time to
amendments allowing the ratification of European treaties
might prevail over European law Ryan, Constitutional Law
39.
37
express legislation to amend the European Communities Act
or by an express constitutional amendment. Irish courts
would enforce such legislation notwithstanding the European
Community law doctrines of supremacy and direct effect or
decisions of the European Court of Justice.64
This final section briefly considers whether the right of Irish
political institutions to legislate contrary to European
Community law, as has been argued here, would be affected
should the Treaty Establishing a Constitution for Europe or
a subsequent treaty similar in substance to the latter be
ratified by all the member states and come into force in
Ireland, and makes some related observations about the
constitution of the European Union.
Unlike previous European treaties, the Treaty Establishing a
Constitution for Europe contained a provision explicitly
providing for the supremacy of European Community law
over national law: The Constitution and law adopted by the
institutions of the Union in exercising competences conferred
on it shall have primacy over the law of the Member
States.65
Despite this provision, if the Treaty Establishing a
Constitution for Europe were to come into force, Irish political
institutions would retain their current right to legislate
64 Cf. TC Hartley, Constitutional Problems of the European

Union (Hart, Oxford, Portland, Or. 1999) 176-177. The


position in the United Kingdom is well-known, but analogous
circumstances are applicable in other member states. Zahle
writes, for example, about the possibility of the national
parliament expressly legislating contrary to certain European
Community obligations in Denmark, where like Ireland a
national constitutional amendment permits delegation by
statute of unusual authority to the European institutions:
Further, since the accession was effected by statute, it can
be changed by subsequent statute law. The subsequent
statute may first of all result in a general amendment of the
Accession Act whereby the national legal basis for the
cooperation with the EU would disappear. Secondly, there
may be problems in connection with a specific statute that in
particular area makes provisions in conflict with Community
law. If the legislature has unequivocally revoked the EUs
powers to regulate the area in question it is undoubtedly
possible to legislate in conflict with Community law. But even
in a situation where such unequivocal revocation has not
been laid down by statute, but where some regulation has
been adopted which is acknowledged and intended as a
breach of the existing Community law, a Danish authority
must give priority to Danish law over Community law. H
Zahle, 'Danish Report' FIDE Berichte fr den 17 Kongress
Berlin: National Constitutional Law vis--vis European
Integration (Nomos, Baden-Baden 1996) 60-69 66.
65 Art I-6 Treaty Establishing a Constitution for Europe. 38
contrary to European Community law and receive the
application of that legislation by the Irish courts. Because the
Treaty Establishing a Constitution for Europe would remain a
treaty, the effectiveness of its obligations in the Irish legal
order would continue to be derivative of the Irish legal
provisions, both statutory and constitutional, to provide for
its force in the Irish legal order. As such, Irish political
institutions would retain the right to unilaterally amend or
repeal the Irish legal provisions in question. There is no
reason why a provision of the treaty itself would alter the
basis of the relationship between the two orders. Article 29.6

of the Irish Constitution does not provide an exception to the


dualist relationship between Irish law and treaty obligations
for treaties which claim explicit primacy over national law,
just as it does not provide any exception for the treaty
obligations as determined through a system of preliminary
references to an international court.
A very similar question has already been considered in
relation to an earlier proposal for a European treaty which
contained a provision explicitly providing for the supremacy
(or primacy) of European Community law. In 1984, the
European Parliament voted to support the Draft Treaty
establishing the European Union, commonly associated with
Altiero Spinelli.66 The Draft Treaty establishing the European
Union contained an explicit statement of the primacy of
European Community law similar to that in the Treaty
Establishing a Constitution for Europe.
In particular, Article 42 of the Draft Treaty stated:
The law of the Union shall be directly applicable in the
Member States. It shall take precedence over national law.
Without prejudice to the powers conferred on the
Commission, the implementation of the law shall be the
responsibility of the authorities of the Member States. An
organic law shall lay down the procedures in accordance with
which the
66 European Parliament, Draft Treaty establishing the
European Union (European Parliament Directorate-General
for Information and Public Relations, Luxembourg 1984).
39
Commission shall ensure the implementation of the law.
National courts shall apply the law of the Union.
The Draft Treaty establishing the European Union never
came into effect, but its contents were discussed by the
scholars of European integration. For our purposes, John
Temple Langs analysis of the Draft Treaty in the Irish context
is particularly relevant.
Temple Lang noted that Oireachtas legislation would be
necessary to make the Draft Treaty part of Irish law:
An amendment to the constitution on the lines of the 1972
amendment would make it possible for Ireland to join the

European Union, but would not make Ireland a member.


Ratification of the new Treaty could take place only after the
amendment to the constitution had been signed by the
President and so passed into law. Ratification of any treaty is
an act of the Government under Article 28 of the constitution
and no treaty (even one expressly mentioned in an
amendment to the constitution) becomes part of the
domestic law of the Irish State except by an act of the
Oireachtas. After the constitution had been amended,
therefore, it would be necessary for the new Treaty to be
enacted into law by an act similar to the European
Communities Act 1972.67
Temple Lang then notes that the position of European
Community law in the Irish legal order under the Draft Treaty
would depend on the Irish implementing legislation. If that
Irish legislation were unchanged, the relationship between
Irish law and European Community law would also be
unchanged by the Draft Treaty.
Ratification by Ireland of the new Treaty setting up the
European Union would be possible only after an Act
essentially similar to the European Communities Act 1972
had been adopted. (Some drafting improvements could be
imagined.)
The rules of Irish law concerning the supremacy of
Community law, and the effects of rules of Community law
which are not directly applicable, would be the same under
the new Treaty as in the case of the Community Treaties
[here Temple Lang refers to his 1972 article, Legal and
Constitutional Implications for Ireland of Adhesion to the EEC
Treaty, pages 171-176, already discussed above], unless the
67 J Temple Lang, 'The Draft Treaty establishing the
European Union and the Member States: Ireland' in R Bieber,
J-P Jacqu and JHH Weiler (eds) An Ever Closer Union: A
critical analysis of the Draft Treaty establishing the European
Union (Office for Official Publications of the European
Communities, Luxembourg 1985) 241-259 248.
40
constitutional amendment or the implementing legislation
were differently drafted. There is no reason to think that they

would be.68
The reference by Temple Lang to his 1972 article concedes
the traditional view that Ireland would be able to legislate
contrary to Community law, even after the coming into force
of the Draft Treaty establishing the European Union with its
explicit claim of the supremacy of national law, unless the
Irish courts accepted one of Temple Langs three contrary
arguments described above. For the reasons advanced
above, these three arguments are unpersuasive.
Temple Lang was prescient in expecting that Irish legislation
to implement a proposed European treaty containing an
explicit provision on the supremacy of European law would
be likely to replicate the legislation used to implement prior
European treaties. The Irish governments proposed
constitutional legislation the Twenty-eighth Amendment of
the Constitution Bill 2005 to implement the Treaty
Establishing a Constitution for Europe replicates the
structure established by the Third Amendment, with
immunity from constitutional review provided for laws
enacted etc. that are necessitated by obligations of
membership of the European Union.69
On that basis, the relationship of European Community law
and the Irish legal order would remain unchanged, just as
the relationship of European Community law and the Irish
legal order was unchanged in this respect by the passage of
earlier statute legislation and constitutional amendments,
consequent on earlier European treaties, which replicated
the language of the European Communities Act 1972 and the
Third Amendment to the Irish Constitution. The acts of the
European institutions would
68 Temple Lang, 'The Draft Treaty establishing the European
Union and the Member States: Ireland' 248
69Twenty-eighth Amendment of the Constitution Bill [No. 15
of 2005] available at
http://www.europeanconstitution.ie/constitution/TextofBill.pdf
.
41
continue to derive their status in Irish domestic law from the
European Communities Act.

Although under the current Irish legal provisions which


provide for the effect of European law in the Irish legal order,
the Oireachtas retains the right to legislate contrary to
European Community law, it should be emphasised however
that the relationship between European Community law and
Irish law could be changed. Such a change could be achieved
by enacting new amendments to the Irish Constitution
which, unlike the Third Amendment, would provide that Irish
legislation giving the force of law to European Community
law in Ireland could not be repealed or amended by the
Oireachtas. A constitutional amendment of this sort could
also be used to remove other limits on the application of
European Community law in Ireland, such as the requirement
of the current provision that obligations be necessitated by
(rather than, for example, consequent on) membership of
the European Union in order to benefit from the immunity
provided by Art 29.4.10, or, as John Bruton has proposed, to
allow the ratification of European treaties without the
requirement for a referendum. Such a constitutional
amendment could be voted by the Oireachtas and put to the
vote of the Irish people at any time, whether in conjunction
with a new European treaty or not.
Even then, the application of Community law in Ireland
would depend on provisions of the Irish Constitution, rather
than directly on European Community law. It would not be
straightforward to amend the Irish Constitution so as to
prevent subsequent amendments to the Irish Constitution
withdrawing such application of Community law in the Irish
legal order as earlier amendments had granted.
This discussion of the relationship of Irish law and European
Community law prompts some brief wider thoughts
concerning the relationship of national law and European
Community law in general. The existing literature on
Community laws
42
relationship with national law tends to focus on the
limitations often related to human rights or the control of
the scope of competences delegated to the European
institution which national judges claim apply to the

delegation of national competences to EU authorities. But


these limitations are just the most visible subset of a much
wider problem. To understand national laws relationship to
Community law as the acceptance of Community law
supremacy with lingering or latent proviso in relation to
fundamental human rights (or control of competences etc)
would be to assume that a static position fully represents a
potentially dynamic relationship.
National legal orders, as sovereign jurisdictions, claim to
control the application of all law, including all forms of law
derived from treaties, within their territorial jurisdictions,
even where national courts have accepted the supremacy
and direct effect of Community law. Given that national
parliaments have passed national laws which provide full
execution to the obligations of the European treaties, under
those circumstances the only limits on the effectiveness of
Community law which may be potentially litigated in the
national jurisdiction may relate to human rights (or control of
competences, etc) where national constitutional
jurisprudence requires such limits on laws giving execution
to treaties (even where, as in Ireland, laws giving full
execution to the European treaties find a constitutional
authorisation for greater delegation of authority than would
otherwise be constitutionally permitted). In other words,
current national legislation and jurisprudence preserves a
status quo which provides that directly effective Community
law obligations receive automatic application in the national
legal orders.
However, the national legal orders claim to control the
application of all law in their territorial jurisdiction includes
the power to unilaterally supplement existing limits on
Community law in the national legal order with new and
further limits by national
43
statutory or constitutional change. The latent proviso for the
application of European obligations in the national legal
order does not consist of narrowly-targeted qualifications
related to human rights or the control of competences
delegated to the European institutions, but rather comprises

the broadest possible claim implied by omnipotent lawmaking power of the sovereign jurisdictions of the member
states. In the jurisdictions of EU member states, such as
Ireland, it is not so much the constitutional claims of
European Community law that prevent the member states
from legislating contrary to Community law but rather the
fact that the member states persistently refrain from
legislating to limit the effect of Community law in the
national jurisdictions which gives European Community law
its constitutional character.
12,432 Words.
44
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47

Institute for
International Integration Studies The Sutherland Centre,
Trinity College Dublin, Dublin 2, Ireland

Parliament Acts 1911 and 1949, and by authority of the same . . .. No statutes have been passed under the
provisions of the Parliament Acts 1911-1949

http://www.francisbennion.c
om/pdfs/non-fb/1969/1969001-nfb-is-the-parliamentact-ultra-vires.pdf
Terms of Reference set for independent
investigator to review allegations made in
connection with Banking Inquiry investigation
The terms of reference have been set for the investigation by Mr
Senan Allen SC into allegations made by a member of staff
under the Protected Disclosures Act 2014.
22nd July 2015
Mr Allen has been appointed to conduct an independent review of the
issues raised in a report made by a member of staff of the
Investigation Team, particularly in relation to allegations of irregularity
and that false information was provided to the Banking Inquiry
Committee. It also alleges that investigators assisted participants to
obtain favourable treatment and that conflicts of interest were not
dealt with appropriately. Further, it alleges that information or
documents were leaked to a named journalist.
Under the terms of reference of his investigation, Mr Allen is required
to consider the allegations made by the staff member in the context of
the legislation underpinning the Banking Inquiry, as well as its Terms
of Reference, the time limit on its work and any other relevant factors.

It is expected that Mr Allens report will be presented to the Acting


Clerk of Dil ireann by the end of August and will include
recommendations identifying any further action that should be taken
by the Houses of the Oireachtas Service.

GAA president open to


association dropping use of
Irish flag and anthem
Gaelic games to be introduced to schools in Emirates with
4,000 Irish teachers in UAE
Sen Moran

In the context of an agreed Ireland, the GAA would consider curbing the
widespread use of the Irish flag and national anthem. Photograph: Cathal

GAA president Aogn Fearghail has said that he is


open to the idea of dropping the widespread use of the
Irish flag and anthem in the context of what he called an
agreed Ireland.
He volunteered the view when asked whether it was time
to consider relaxing the rules in this respect for overseas

units, many of whose members are not Irish a view


originally floated by former GAA director general Liam
Mulvihill.
Well, itd be time to look at it in our own island too in
terms of an agreed Ireland, which everybody in Ireland
and everybody in the GAA looks at. You certainly cannot
look at these issues in advance of an agreement, thats for
sure. The flag and the anthem means a lot to the GAA
and will continue to do so, but who knows in the future?
In the future, if there are different agreements in place
for the whole of Ireland, of course the GAA would be
inclusive in that.
Further questioned on what type of agreements he had in
mind, he replied that circumstances were changing.

Changing world

There could be further agreements politically at home.


There is a massively changing world at home. Brexit is
going to affect the GAA the same as its going to affect
everyone else and it does cause concerns. In the future if
there are new agreements and new arrangements wed be
open-minded about things like flags and anthems but not
in advance of agreements.
He pointed out that there had already been moves by the
GAAs European Board to underline the importance of
the games as opposed to their cultural provenance.
I would say in terms of overseas, Europe GAA have
changed their name; theyve rebranded. Theyre now
Gaelic Games of Europe and I think thats an inclusive
title that they have chosen deliberately to include their
camogie and their football and have changed their logo.
He added that the Irish brand probably causes more
difficulty at home and commended overseas units for
their inclusiveness. We have to learn from our

international units that we should never have closed


minds about things that we always thought were precious
and sacred. They may well be that but we have to have
open minds as to where this could go.

Schools in the Emirates

On a more practical front, Fearghail said that the GAA,


working through the embassies of Ireland and the UAE,
had cleared the way for Gaelic games to be introduced to
schools in the Emirates.
A lot of children are of ex-pat Irish but a lot arent. They
find the games exciting. Were now getting into the
schools here, which is a huge thing. There are almost
4,000 between Dubai and Abu Dhabi. There are 4,000
young Irish teaching in schools. They really value them as
excellent teachers. It is a difficult role. We have now
worked through the embassies again, particularly the
UAE embassy in Ireland and we have now established
that we can have Gaelic games in the schools.
That will be interesting and it might follow the same
model as in Canada. Its now in Canada on the official
curriculum in Ontario province and they enjoy it. They
find that it suits the Canadian style. It gives all body
strength, upper and lower, its safe. It has progressed the
game enormously over there. All that has to be welcome.
http://www.irishtimes.com/sport/gaelic-games/gaa-president-open-toassociation-dropping-use-of-irish-flag-and-anthem-1.2885324

GAA president open to


association dropping use of

Irish flag and anthem


Gaelic games to be introduced to schools in Emirates with
4,000 Irish teachers in UAE
PLEASE NORTHERN IRELAND AND BRITAIN AND CANADA , THEY WANT
TO USE LOGO EU FLAG INSTEAD NO WAY
http://www.irishtimes.com/sport/gaelic-games/gaa-president-open-toassociation-dropping-use-of-irish-flag-and-anthem-1.2885324

Fool Me Once Coveney Shame on You, Fool me


Twice Coveney Shame on Me

Anti Austerity Alliance calls for water


protesters to 'polish their boots', saying
massive protests loom

Tuesday, November 29, 2016

The Anti Austerity Alliance has called for water charges to be


abolished - completely.
An expert report on the future of water is due out this week.
It is expected to recommend that the State absorb the cost
of household water use.
AAA TD Mick Barry (pictured) said that if the charges do not
go, they are ready to take action.
"We need to have the abolition of the water charges, not
their amendment," he said.
"Why keep a water charges regime in place at all, if only a
tiny minority are going to pay them? This is clearly all about
keeping a foot in the door (and) establishing a basic principle
in order to increase the price and the scope at a later date.

"The Anti Austerity Alliance would be asking people to get


their marching boots polished up over the Christmas period,
because I think there may be a need for massive protests on
the street in the New Year."
BRACE yourself Bridget, there be stormy seas ahead. Next
week, the long-awaited report from the Water Commission is
to be delivered to the Dil and government.

Protesters march through Dublin city during a demonstration


last September against water charges. Picture: Sam
Boal/Rollingnews.ie
The Commissions job has been to design a future for how
we as a country will fund our water network.
Politically, however, the commissions job is incredibly
complicated, given the disparate make-up of the present
Dil.
On one hand, it must deliver a model which prevents Ireland
from falling foul of stiff European rules, on the other realising
the considerable political opposition to any return to water
charges.
Some have said the commission must deliver a mechanism
which will get Fianna Fil off its abolitionist perch while

allowing Fine Gael re-establish its commitment to water


charges.
Having been the greatest political cock-up in living memory,
the introduction of water charges represents the single
greatest challenge to the stability of this minority
government, other than Shane Ross and Enda Kennys rocky
relationship.
In truth, the fate of water charges remains an uncertain one,
and the chances of this government falling over the issue
remains a very clear and present danger.
Housing Minister Simon Coveney is the man who has
responsibility for managing this issue. And beyond the direct
fate of water, he knows his chances of becoming the next
Fine Gael leader are riding on this.

Simon Coveney
I understand Coveney anticipates that what is most likely to
emerge is a system of charges whereby a generous
allowance per person will apply, with usage above that
allowance having to be paid for.
The allowance would be determined by the United Nations
figures of what western adults and children require each day
in terms of water usage.

It is believed that waivers would apply to the vulnerable, the


elderly and the sick.
Bottom line, the system proposed will have to be sufficiently
different from what went before to allow Fianna Fil to be
able to claim they killed off charges as we knew them.
While this is the expectation, delivering this is a whole other
matter. Given this will be the fourth fresh start for water
charges and Irish Water, its success is by no means
guaranteed.
Firstly, there is no guarantee this will wash with Fianna Fil,
as it has yet to demonstrate that it fully knows what its
stance on water charges is.
While Michel Martin has been very strong in his public
commentary about wanting nothing short of the abolition of
charges, others in his party, like Michael McGrath, have
advocated the type of regime detailed above.

Michel Martin
Barry Cowens belated openness to a return of charges, as
shown by his interview with Mary Wilson on RT earlier this
week, was illustrative of the divergence of opinion.
In light of the Confidence and Supply deal between Fine Gael
and Fianna Fil, which is underpinning the minority Coalition,

Coveney and Cowen will be in very regular contact in the


coming weeks and months to ensure agreement can be
reached.
But, it will ultimately be for Martin and Enda Kenny to decide
the final shape of a new water charges regime, and that
could prove problematic.
We know that the sides came very close to agreeing a
settlement on charges during the talks which led to the
governments formation, only for Fianna Fil to back away
from the deal, opting instead for the commission option and
the nine-month suspension.
Looking ahead, Fine Gael and Fianna Fil will have a majority
between them on this new 20-man Oireachtas Committee,
which will consider the Water Commissions report.
Should they agree, then whatever emerges as the new
arrangement will ultimately become the law of the land.
The selection of Independent Senator Pdraig Cidigh, who
was a Fianna Fil pick to be a Taoiseachs nominee to the
Seanad, was a clear example of how the two parties can
work together.
Taoiseach Enda Kenny confirmed how Cidigh came to be
selected as chair in the Dil, in response to Sinn Fin
president, Gerry Adams.

Enda Kenny
As this was a deliberative process between the two parties
and part of the Confidence and Supply arrangement..., it is
obviously necessary to have somebody who is competent,
objective and capable of chairing deliberations, on a
complex issue such as this, as chairman of the Oireachtas
committee, he said.
An Seanadir Cidigh is an outstanding person, a
businessman who is used to seeing clearly through complex
issues and making decisions. I am sure he will fulfil his remit
in this regard in a very clear, objective and fulfilling way. In
that sense, the minister and his opposite number in the
Fianna Fil party discussed who would be appropriate to
chair the committee, Kenny told Adams.
The opposition cried foul. On Thursday, the Dil was
suspended amid complaints from Sinn Fins Eoin Broin
and AAA-PBP TD, Mick Barry.
Mr Barry opposed Government attempts to sneak through a
motion to impose a hand-picked chairperson on the water
committee.
He said: This is an attempt at a stitch-up by Fianna Fil and
the government to sneak through a motion on the chair of
the water committee. It is an attempt to impose a handpicked chairperson.
There is no doubt the opposition to water charges in the Dil
is considerable and such venom is undoubtedly likely to
dominate the airwaves in the wake of the reports
publication next week.
Bottom line is that if Fine Gael and Fianna Fil can agree a
compromise then the opposition from Sinn Fin and the
other hard left TDs may be noisy but irrelevant when the
time to vote comes.
Coveney and the government are hopeful that the past five
months or so will not be in vain and that the expert-led
commission report will give sufficient political cover to
enable them to finally put the thorny issue of water charges
to bed.
But, the stakes are high and the chances of an election as

early as next March or April remain considerable.


In the context of poor relations between Fine Gael and the
Independent Alliance, this weak minority government hasnt
got much chance of being able to withstand a major crisis on
water charges.

Two state groups to fix water allowance


The exact allowance cut-off point for water charges when
they potentially kick in next year is set to be decided by two
more independent State groups, effectively pushing political
fallout further from Government TDs.

An independent group will recommend the move in a report


published tomorrow, in addition to a referendum to ensure
the public ownership of water services, and equity for rural
households on pre-charges water schemes.
The Government earlier this year set up the independent
commission on water charges to examine whether charges
should return or be scrapped entirely. The review will be
published tomorrow before being sent to a new 20-person
cross-party Oireachtas committee which will be given until
March to examine the plans, which will then face Dil and
Seanad votes.

Details of the reports recommendations were last night


revealed by RT.
While it has been claimed the moves will ensure that the
vast majority of people will not see a return of the
controversial fees because of State-funded allowances, the
report will crucially fail to explain at what point these
allowances will run out.
As reported by the Irish Examiner on Monday, the
commissions report is expected to say that charges which
were frozen last spring during Fine Gael and Fianna Fils
Government formation talks should not return for the
majority of households.
Instead, their water services will be funded by a new taxfunded system, which will see allowances significantly higher
than those put in place in the original water charges system.
Concessions will also be put in place for the elderly, people
with disabilities, and those who are unemployed.
However, for an as-yet- unexplained number of people who
use more than the allowance provided, charges will resume.
The level of charges these people will face, the exact cut-off
point of the allowances, and the estimated number of people
due to be affected by the move have not been outlined in
the commission report.
Instead, it is due to recommend that the allowance cut-off
point be decided by two more groups the Energy
Regulator and a public water forum while the Oireachtas
committee examines the findings between now and March.
In addition, the commissions report is expected to say that a
referendum ensuring the public ownership of water services
should be considered, and it has called for equity for urban
households in the new system and rural households on preexisting water schemes.
A spokesperson for Environment Minister Simon Coveney
declined to comment on the report yesterday, other than to
confirm it will be published tomorrow, while his Fianna Fil
counterpart Barry Cowen said his party wants to give the
Oireachtas committee space to conduct its work.
However, Sinn Fin TD Eoin Broin and AAA TD Paul Murphy
both criticised the reports details, saying they will only

support a complete removal of fees and that a referendum


should not be used as cover for the return of any charges.
A new report by the expert commission looking at the future
funding of water has recommended that the vast majority of
people will not pay for water, write Daniel McConnell and
Juno McEnroe for the Irish Examiner.
Among the main recommendations are the funding of water
services for normal domestic and personal use should be out
of taxation.
The report recommends that special provision should be
made for those with special medical or other needs.
It also states that the volume of water necessary to meet the
normal domestic and personal needs of citizens should be
independently assessed through an open and transparent
process.
Under the proposed arrangement, the national water utility
will provide sufficient water to all citizens to cover their
domestic and personal needs, and the cost of that water will
be recovered from the State, which will be a customer of the
utility, based on tariffs approved by CER following
consultation.
What is proposed does not therefore amount to the
provision of a free allowance of water, the report states. As
revealed in the Irish Examiner on Monday, excessive or
wasteful use of water should be paid for directly by the user
at tariffs determined by CER.
Excessive or wasteful use of water will be discouraged by
charging for such use and therefore is consistent with the
polluter pays principle', the report adds.

View image on Twitter

Follow

Juno McEnroe
Water report recommends funding for normal usage should
come from taxation. Method must be decided though.
Exemptions proposed.
10

4:55 PM - 29 Nov 2016

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The report also states that through directly billing the


Exchequer for the cost of the agreed allowance for normal
domestic and personal use, funds for covering the costs of
water production and for further investment in infrastructure
will be provided.
Additional mechanisms should be considered to ensure that
the necessary finance is guaranteed, he added.
In respect of metering, if it is decided to proceed with the
metering programme, consideration should be given to an
approach that is more aligned with the proposals in this
report, with a focus on metering of buildings in the case of
multi-occupancy or metering of households on request.
The report states that Irish Water should complete a
comprehensive programme of district metering to identify
system-wide leakage and manage the network. The Expert
Commission has recommended that Irish Water renew its
efforts to develop a positive engagement with consumers
and put in place further initiatives to engage consumers in a
positive and proactive way at the national, regional, and
local level.
Irish Water should also commit to the provision of extensive

open-access data, for research purposes and so that


consumers can easily monitor and manage consumption.
An EPA administered research budget on water management
and conservation is necessary and should be put in place,
the report states.
It is recommended that a much more proactive approach be
taken to promoting domestic water conservation measures
in Ireland.

The report states that Irish Water can play a key role in this
regard not only through educational and information
campaigns but also through providing advice and access to
water conserving devices.
Further measures should also be considered, such as a
requirement that new domestic buildings incorporate water
conserving fittings and an extension of the Building Energy
Rating (BER) Scheme to incorporate water conservation, it
adds.
The Expert Commission recommended that this be reviewed

when the allowances for consumers on public supplies are


determined and that equity for group schemes and private
wells be maintained through additional subsidy or other
means.
The necessary measures should be put in place to give effect
to the commitment that those who have paid their water
bills to date will be treated no less favourably than those
who have not.
Although the current set of charges were introduced by
Labour's Alan Kelly, the party says the findings are exactly
what it hoped for.
Its housing spokesperson Jan O'Sullivan said: "I put in
submission to the Commission on behalf of the Labour party,
and I clearly said there should be an allocation for
households and that only those who waste water should
have to pay extra."
Sinn Fin said it is disappointed details of the report have
been leaked before TDs have got sight of it.
The party's housing spokesman Eoin O Broin says the job of
the group was very narrow.
"It didn't include anything about water poverty, it didn't
include anything about the management and delivery
mechanisms of water and sanitation services - and it had a
very light line around information about conservation", he
said.
Taoiseach Enda Kenny told the Dil that because of the
leaks, the report will be released this evening.
"Because of the situation that applies here, the minister for
housing has informed me that this report will be published
early this evening - and it will go straight directly to the
specific committee set up in the Oireachtas to deal with it".

http://www.irishexaminer.com/breakingnews/ireland/antiausterity-alliance-calls-for-water-protesters-to-polish-theirboots-saying-massive-protests-loom-766239.html

I have sent Coveney another email after


today's nEUs of EU threats again...email is
below.
"A chara,
I see in the newspapers again today the
EUNFORCER is coming out saying we have to
abide by their bidding.
I know the EU is founded upon capitalist
principles. Capitalism is founded upon
consumerism. Their are no capitalist rights,
there are however consumer rights.
I have written to you previously stating I and
others know our rights as consumers.
I have said in those correspondences that
HFSA is not safe in our water and the onus
will be fully on the Irish Government more so
than Irish Water to prove the safety there of.

I will have a year of receipts from bottled


water in January.
I would actually pay for the "water service" if
it were if a Dutch or Italian standard. Less
bleach and no HFSA, phosphates, aluminium
etc.
HFSA is not safe for babies. Even the
American Dental Association concur on that.
The HRB has not researched HFSA safety here
with regards bottle fed babies. They should
really as 83% are bottle fed. That's 50,000
babies affected in 2014 alone. One year.
Cancer is a heavy burden upon the state too.
HFSA and THMs are both highly carcinogenic.
Might be cheaper in the long run to remove
those unnecessary chemicals before the Irish
governments of today and past and IW get
pulled out in the open about this.
Negligence is one thing. Failure to act is
catastrophic. If you fail to prepare you are
prepared to fail. I am prepared for court. My
consumer rights are protected.
I will have a year of receipts in January. 468
for a year it will be. I cannot be expected to
land out another 2-300 a year to pay IW for
water that is not safe.
IW and the government will have to prove in a
court of law beyond reasonable doubt that
Irish Water has a safe product.
Best change the 1964 fluoridation act
promptly and get the EPA to come up with a

solution to clean the water without chlorines


like THM.
Regards,
Rita Cahill
November 29, 16
Last week I sent a plethora of emails to
Medical Journals, The Food Safety Authorities
in Ireland and the EU, University Research
Faculties and all asunder under the Medical
group umbrella, breastfeeding support
groups, infant formula producers and more...
I have started to get responses... Below is the
email I sent to all above mentioned and
more... Following is the most satisfactory
response I have gotten... More will follow...
EMAIL SENT
"To whom it may concern,
could you tell me is hydrofluorisilic acid safe
for babies? I know this fluoride substance is
added to help children's teeth, but babies
don't have teeth.
83% of babies are bottle fed in Ireland are all
bottle fed after 6 months. Some babies don't
even get breast milk. This means babies are
fed hydrofluorisilic acid in their bottles.
There was 62,000 babies born in 2014. That
means potentially 50,000 babies were bottle
fed this fluoride substance in their bottles.
Can this be safe for a developing infant?
Could you please assure me it is."
RESPONSE FROM THE "IRISH EXPERT ON

FLUORIDES AND HEALTH"


Dear Mr Smith,
Your query has been brought to the attention
of the Expert Body and it is preparing a
response which will be sent to you as soon as
possible.
Yours sincerely,
Etain Kett
Secretariat
Irish Expert Body on Fluorides and Health
RESPONSE FROM MEDICAL RESEARCH
BOARD
"Dear Mr Smith
My name is Marie Sutton. I work with the
Health Research Board and I am one of the
authors who participated in producing the
evidence review on Health Effects of Water
Fluoridation.
Thank you for your email (sent 28th
September) with your enquiry regarding
hydrofluorisilicic acid and its safety when it is
added to water for the purpose of community
water fluoridation especially in relation to
babies who are bottle fed.
This topic was not covered in our review as it
was outside the remit of the question posed by
the Department of Health who requested the
review. However we will search for some
evidence-based and reliable information for
you on this subject which will hopefully
address this question and help with your

enquiry.
Again thank you for contacting us and we will
be in touch in the near future.
Marie Sutton"
THE FIRST IS THE USUAL YOU EXPECT...
BUT THE LATTER SHOWS THEY HAVE NOT
STUDIED THE SAFETY ASPECTS
THOROUGHLY AND WILL BE HELD IN
NEGLIGENCE IF THEY DON'T ACT... QUICK.
YES, SUCCESS IS NOT FAR...
IT SEEMS THEY DIDN'T FACTOR BABIES
INTO THEIR SAFETY RESEARCH.
Well done. it breaks my heart to think of the
babies being poisoned. Also it is a violation of
the right to bodily integrity. The judge who let
this through knew it at the time but still
compromised our constitution and national
health. It must stop at once. I call on the water
workers to refuse to do this any more.
Seems some one may not like this post and it
was removed. "FG Kate O'Connell how are you
doing?" Still poisoning babies. Best rethink
there.
Nothing to do with fluoride.
We are all going to take the time to watch the
game this evening?
Now. No excuses sing this evening LOUD AND
PROUD.
Sinne Fianna Fil
A t f gheall ag irinn,
buion dr slua

Thar toinn do rinig chugainn,


F mhid bheith saor.
Sean tr r sinsir feasta
N fhagfar f'n tiorn n f'n tril
Anocht a tham sa bhearna bhaoil,
Le gean ar Ghaeil chun bis n saoil
Le guna screach f lmhach na bpilar
Seo libh canadh Amhrn na bhFiann.
It's only the chorus of the whole song that we
sing as our anthem. Very short no excuses.
Bout time we learned it. I have printed off a
copy that I am going to carry in my wallet. You
can copy the lyrics and put them onto your
phone. Have them ready then to sing.
If you can't learn it as gaelige. Here it is in
English.
Soldiers are we
whose lives are pledged to Ireland;
Some have come
from a land beyond the wave.
Sworn to be free,
No more our ancient sire land
Shall shelter the despot or the slave.
Tonight we man the gap of danger
In Erin's cause, come woe or weal
'Mid cannons' roar and rifles peal,
We'll chant a soldier's song.
The report of the Government-established
independent commission on the future of
water charges is to be published this week and
represents the greatest threat to the

confidence and supply deal between Fine


Gael and Fianna Fil.
There is considerable unease within
Government ahead of the reports publication,
with some ministers fearing the issue could
lead to the demise of the Coalition.
It is understood that the proposals from the
commission must be politically sailable and
deliver a mechanism which will allow Fianna
Fil move away from its position of seeking to
fully abolish water charges.
Housing Minister Simon Coveney is expecting
that the regime will propose a system of
charges which will allow Ireland comply with
strict European regulations and to avoid being
subject to fines.
In this light, the Irish Examiner has learned
that:
11 A system of water charges for domestic
customers is to be proposed, but only after
very generous allowances are used up;
12 Waivers will need to exist for the vulnerable,
the elderly, and the disabled;
13 The Government has no contingency funding
to pay for any extension of the suspension of
water charges and face a black hole should
charges fail to return.
Led by Kevin Duffy, the water commission
report will be delivered to the clerk of the Dil
while also being presented to Government.
The commission report will immediately be

considered by a new 20-person cross-party


Oireachtas committee, which will report to
Government by the end of March next year.
Should Fine Gael secure Fianna Fil
agreement between themselves, the parties
have a majority on the committee.
The key to this is to allow Fianna Fil change
its stance on water charges, said a senior
Cabinet minister. That is the goal of this
exercise. Hopefully what comes will be
politically sailable and allows us comply with
Europe and bring certainty to the issue.

As it stands, Mr Coveney faces an uphill battle to try and


reintroduce a water charges regime, with over 90 of the 158
TDs in the Dil opposed to imposing water charges on
homeowners.
The Dil was adjourned for 20 minutes in a heated row about
the appointment of the chair for the special committee on
water charges last Thursday.

Independent senator Pdraig Cidigh was later confirmed


as chairman after a 92 to 39 vote and a suspension of the
Dil.
The committee was established to deal with the report, due
next week, on the future of water services and charges.
AAA-PBP TD Mick Barry accused the Government of
attempting a stitch-up by appointing Mr Cidigh as
chairman of the committee of 20 TDs and senators who will
deal with the report of the expert commission established to
make recommendations for a sustainable model for water
services.
Meanwhile, new figures reveal that at the end of September,
a tot

Irish Water, the private company remains in


place.
The water bills remain in place, but will now
be paid by the government not you. This
means you can't boycott the bills!
A small percentage of the population will be
chased for "wasting" water, most people won't

be worried as they don't have to pay.


Classic "divide & conquer"tactics.
Slowly, but surely, charges will be introduced
to all of the citizens and then; Check Mate!
The Privatization of OUR Water

This is what you should be paying for, if you


pay.

I phoned consumer rights today. They were


confounded by my knowledge of consumer
rights and the law. IW doesn't have a toe to
stand on. It will be on its knees if my day in
court comes (for non payment). Consumer
rights and sale and supply of goods 1980..... no
contract, product is not fit for purpose or of
merchantable quality (poisonous water with
HFSA, THMs, phosphates and more does not
meet either of those). Then IW are
contravening 2 further laws. 1997 non fatal
offences 12.1 poisoning, I never consented to
HFSA being added to my water. And now they
have started contravening 1994 public order
17. extortion since they started with their
threats for financial consequences for non
payment. Bring on the court cases. Let all

know about these laws. Hold onto your


receipts for bottled water as proof you don't
cook or drink Irish tap water
Fluoride not a poisonous substance ay?
It's an element contained in the makeup of
SARIN gas.
https://en.m.wikipedia.org/wiki/Sarin
Everyone pays for water.someone should have
edcuated the members of this commission on gov
taxes beforehand

Water report recommends


funding for normal usage should

come from taxation. Method


must be decided though.
Exemptions proposed.

Laid out defined in others black and white

pictures. Do you care about your compatriots


water enough to help others?
Petitioning and spreading awareness.
50 years the water has been poisoned with
HFSA.
People need to be told what it is, what it does...
Why it's put into the water....
Why it is not done in other countries...
Who and what parties in Ireland still supports
this practice.
I would appreciate any help with writing info
on pieces of cardboard and talking with
people.
I got over 150 signatures last week.
If you haven't signed the petition....
Get your ass over and sign it.
Sorry diplomacy is not my forte.
I just say it as it is.
You want something done.
Don't be Hmmming F1.
It's not fluoride....
It's hydrofluorisilic acid ex pee ala doh shuss.
Manual petitioning and educating people for
water free from HydroFluoriSilic Acid. They
want us to pay for THAT, well no we won't.
ON THE CIVIL DEBT LAW....
FF and Green parties will blame FG and
Labour for the Civil Debt law. Just as FG and
Labour are blaming FF and Green parties for
the HSE crises.
Don't vote for FF, FG, LAB, Green. They don't

believe in democracy, we seen that with the


Lisbon Treaty. Those 4 parties were the
parties to give it the ok. Even though YOU all
voted NO TWICE.
The Civil Debt law is an example of
dirigisme....dirigisme is when the state
controls of economics and social matters.
"An inherent aspect of fascist economies was
economic dirigisme,[4] meaning an economy
where the government exerts strong directive
influence over investment, as opposed to
having a merely regulatory role."
https://en.wikipedia.org/wiki/Economics_of_
fascism
This Civil Debt Law is anti-capitalist. All
"democracy" is capitalist. This is fascist.
We have consumer rights, which are
fundamental in capitalism.
The water is not safe to drink or cook with,
shit it's bad enough having to wash in the 5
times the EU limit of chlorines, HFSA and
more.
The water is unfit for purpose and not of
merchantable quality. HFSA is dangerous I/we
do not need it in our water, $o we dont have to
pay, that i$ how capitali$m works.
START HOLDING ONTO ALL YOUR
RECEIPTS FROM WHEN YOU BUY BOTTLED
WATER. WE SPEND 6+ EURO IN OUR
HOUSEHOLD. THATS 300+ EURO A YEAR.
I AM NOT GOING TO PAY ANOTHER 2-3

HUNDRED MORE. CAPITALIST CONSUMER


RIGHTS WILL PREVAIL.
Maybe if the water was of a Dutch
standard.....people might pay.
But its not!
A NEW WATER TAX MEANS THAT WE ARE PAYING YET
AGAIN FOR OUR WATER REGARDLESS OF SCAM
ALLOWANCES!

Households will no longer face the burden of


water charges and will only have to pay bills if
they engage in "wasteful usage", according to
the Independent Water Commission.
The commission's draft report recommends
that the State becomes a "customer" of Irish
Water and that families' supply is paid for
through general taxation. However, the
commission says that the Government should
consider the introduction of a "water tax" in
order to keep the public utility afloat.
"The question of whether there should be a
dedicated taxwould be a matter of budgetary
policy and outside the scope of this report, but
is worthy of further consideration," the report
states.
On the issue of ownership, the commission
says there is "overwhelming support" for
retaining Irish Water as a public utility. And it
says there is "considerable merit" in the
staging of a referendum to ensure it cannot be
privatised in the future.

The decision by the commission to


recommend against the re-introduction of a
charging regime for all households will be
seized upon by the anti-water charges
movement. It also means that Fine Gael will be
forced to significantly row back on its previous
policy that charges should remain in place.
But the authors of the report insist its central
proposal - whereby households only pay if
they use water above a certain limit - does not
amount to "a free allowance".
The report states: "Rather, the water utility
will provide water to all citizens and the cost
of that water will be recovered from the
State."
Two options are outlined in the draft report
for determining what equates to "normal
usage", beyond which households will be
billed.
The first option would see the water required
for everyday activities such as washing and
cooking being calculated following a detailed
analysis.
The second option would essentially involve
dividing the amount of water used every day
by the population in order to determine the
normal usage rate.
The report states that the final level of
allowance should be set following a
consultation involving the Commission for
Energy Regulation and the Public Water

forum.
But charges for commercial customers should
remain in place, the report states.
Special provision should be made for those
with special needs, the reports says.
It adds that there should be an exceptional
waiver scheme administered by the
Department of Social Protection.
It is recommended that the funding model for
investment may have to be "fundamentally"
reassessed given the ongoing need to pay for
infrastructure.
In relation to the hundreds of thousands of
households who have paid, the commission
recommends that "necessary measures"
should be introduced to ensure those who
have paid to date "will be treated no less
favourably than those who have not."
However, the commission - led by Kevin Duffy
- does not state whether this should involve
refunds or the introduction of tax credits.
Those on group water schemes and
households using private wells are also
specifically mentioned. It is stated that these
schemes have proven effective in reducing
consumption and addressing leakage and that
such groups should be assisted through
"greater subsidy or other means".
In relation to metering, the commission states
that meters have been "highly effective" in
detecting leakages.

But the commission says that metering will


not be "technically feasible" in the likes of
apartments and that it is "reasonable and fair"
to assume that such households do not
consume water in an excessive fashion.
It is also recommended that Irish Water
"renew its efforts to develop a positive
engagement with consumers" on the back of a
series of PR disasters in recent years.
The final report is due to be sent tomorrow to
the 20-person Oireachtas committee, which
will sit for up to three months. The Dil will
then vote in the spring in relation to the
options put forward.
Funded by General taxation and a referendum
to enshrine the FACT that it cannot be sold off
to vulture funds same as all the NAMA
apartments and commercial properties.
Housing, healthcare and water (in any order
you choose) were the three biggest issues
around which the last election was fought. Six
months into 'new politics' and the Fine GaelIndependent Alliance charade, and things
have only got worse on all three fronts. We
have more homeless people than any other
time in living memory, we have more people
on hospital trolleys and waiting for medical
procedures than ever before, and people are
still being asked to throw good money after
bad on a failed billing service that can't even
pay its own way, much less fix they system it

was allegedly created to maintain and


upgrade. FF may think they're playing a smart
game by allowing these and other FG debacles
rumble on, but facilitating FG in office makes
them equally responsible for the mess.
Firstly, this report isn't due until tomorrow,
but we're getting hints of the possible out
come to soften the impacted of the conniving
deeds of this governments and Fianna Fil in
their attempts to enforce water charges.
Secondly both Enda Kenny and Micheal
Martin need to realise that this political
quango Iris water is a financial quagmire that
the big boys in Europe have already rejected
its capabilities of survival without government
funding and that money taken from hard
pressed Taxpayers through political
exploration.
Therefore as of now both parties should take
note that any suggestions of a household limit
will be strongly rejected as that was a previous
intent to shaft ordinary decent people who've
already paid for water through Motor
taxation. Disabled people lost proper home
care the ordinary people were taxed beyond
survival whilst government enrich themselves
and their cronies. Time for politicians like
Kenny and Martin learned that enough is
enough.

Discussing the Water Charges this morning on Tipp FM.


Paddy Healy

Public Notice CONSTITUENCY


COMMISSION
A Constituency Commission has
been established under section 5
of the Electoral Act 1997 to report
in relation to the constituencies
for (a) the election of members to
the Dil

http://www.constituencycommission.ie/docs/Const
ituency-Commission-Public-Notice.pdf

Electoral (Amendment) (Dil


Constituencies) Act 2013

http://www.irishstatutebo
ok.ie/eli/2013/act/7/enact
ed/en/pdf
Back in 2009, Mayor Ted Clugston was actively opposing the
policy, which pledges to give any person who spends ten
days on the street a home. Today, he has come to realize
that not only does the policy work for the people, but it
works for the govenrnment, too.
"This is the cheapest and the most humane way to treat
people," he told CBC.
Louise Bradley, President and CEO of the Mental Health
Commission of Canada, helped conduct a study that
supported Clugston's claim. The study cost $110 million and
looked at 2,000 people over five different cities, but its
results were invaluable.
What they found was that when homeless people were told
to "get clean" or find other ways to get their lives together
before applying for housing, they inevitably fell back into
cycles of drug use and poverty. That landed them back in
emergency rooms, hospitals, detention centers and shelters
all things that cost tax money.

Jesus Con, don't be giving the


snotty nosed little pipsqueak ideas
Health Minister Simon Harris has written to the
health ministers in England, Scotland, Canada and
Australia asking them to work together in a bid to
reduce the cost of cystic fibrosis drug Orkambi.
The health services in these countries have all been
considering access to Orkambi for people with CF.
They have been in talks with the pharmaceutical
company which makes it, Vertex, to reduce the cost
of the 160,000 per patient per year medication.
Harris said: "Securing access to treatments for
patients at an affordable price remains the key
priority. However, we cannot have a situation
whereby exorbitant prices make it effectively
impossible to access a new treatment like Orkambi."

New water tax to replace


hated bills
Niall O'Connor and Paul Melia
PUBLISHED
29/11/2016

1
Households will no longer face water charges and will have to pay
bills only if they use the resource in a "wasteful" manner. Stock Image

Households will no longer face water charges


and will have to pay bills only if they use the

resource in a "wasteful" manner.


The report recommends that families' supply is paid for
through general taxation.
It wants the volume of water considered 'necessary' to meet
domestic and personal needs to be assessed in an
independent and transparent process.
Only what is considered 'wasteful usage' of water will be paid
for by the user.
Some findings of the draft report of the Independent Water
Commission will be seized on by the anti-water charges
movement as support for the long and sometimes bitter
campaign that it waged.
However, the commission says the Government should
consider introducing a "water tax" to keep Irish Water afloat.
"The question of whether there should be a dedicated tax . . .
would be a matter of budgetary policy and outside the scope
of this report, but is worthy of further consideration," the
report says.
On the issue of ownership, the commission finds that there is
"overwhelming support" for retaining Irish Water as a public
utility. And it finds "considerable merit" in holding a
referendum to ensure the utility cannot be privatised in the
future.
The final report is due to be sent to the 20-person Oireachtas
committee tomorrow.

http://www.independent.ie/irish-news/newwater-tax-to-replace-hated-bills35252950.html

Households will not pay


for water - except for
'wasteful usage'
Niall O'Connor and Paul Melia
PUBLISHED
29/11/2016

1
Households will no longer face the burden of water charges and will
only have to pay bills if they engage in 'wasteful usage'.

Households will no longer face the burden of


water charges and will only have to pay bills if
they engage in "wasteful usage", according to
the Independent Water Commission.
The commission's draft report recommends that the State

becomes a "customer" of Irish Water and that families'


supply is paid for through general taxation. However, the
commission says that the Government should consider the
introduction of a "water tax" in order to keep the public
utility afloat.
"The question of whether there should be a dedicated tax
would be a matter of budgetary policy and outside the scope
of this report, but is worthy of further consideration," the
report states.
On the issue of ownership, the commission says there is
"overwhelming support" for retaining Irish Water as a public
utility. And it says there is "considerable merit" in the
staging of a referendum to ensure it cannot be privatised in
the future.
The decision by the commission to recommend against the
re-introduction of a charging regime for all households will
be seized upon by the anti-water charges movement. It also
means that Fine Gael will be forced to significantly row back
on its previous policy that charges should remain in place.
But the authors of the report insist its central proposal whereby households only pay if they use water above a
certain limit - does not amount to "a free allowance".
The report states: "Rather, the water utility will provide
water to all citizens and the cost of that water will be
recovered from the State."
Two options are outlined in the draft report for determining
what equates to "normal usage", beyond which households
will be billed.
The first option would see the water required for everyday
activities such as washing and cooking being calculated
following a detailed analysis.
The second option would essentially involve dividing the
amount of water used every day by the population in order to
determine the normal usage rate.
The report states that the final level of allowance should be

set following a consultation involving the Commission for


Energy Regulation and the Public Water forum.
But charges for commercial customers should remain in
place, the report states.
Special provision should be made for those with special
needs, the reports says.
It adds that there should be an exceptional waiver scheme
administered by the Department of Social Protection.
It is recommended that the funding model for investment
may have to be "fundamentally" reassessed given the
ongoing need to pay for infrastructure.
In relation to the hundreds of thousands of households who
have paid, the commission recommends that "necessary
measures" should be introduced to ensure those who have
paid to date "will be treated no less favourably than those
who have not."
However, the commission - led by Kevin Duffy - does not
state whether this should involve refunds or the introduction
of tax credits.
Those on group water schemes and households using private
wells are also specifically mentioned. It is stated that these
schemes have proven effective in reducing consumption and
addressing leakage and that such groups should be assisted
through "greater subsidy or other means".
In relation to metering, the commission states that meters
have been "highly effective" in detecting leakages.
But the commission says that metering will not be
"technically feasible" in the likes of apartments and that it is
"reasonable and fair" to assume that such households do not
consume water in an excessive fashion.
It is also recommended that Irish Water "renew its efforts to
develop a positive engagement with consumers" on the back
of a series of PR disasters in recent years.
The final report is due to be sent tomorrow to the 20-person
Oireachtas committee, which will sit for up to three months.

The Dil will then vote in the spring in relation to the options
put forward.
http://www.independent.ie/irish-news/politics/householdswill-not-pay-for-water-except-for-wasteful-usage35252821.html

Gerry Adams calls water


charges an 'ongoing farce'
and a 'comedy of errors'
Kevin Doyle Twitter
EMAIL
PUBLISHED
22/11/2016

Sinn Fin leader Gerry Adams. Photo: Steve Humphreys

Sinn Fin has called for the appointment of


Independent senator Padraig O'Ceidigh as
chair of a new committee on water charges to
be put to a Dil vote.
Mr O'Ceidighs appointment was agreed following talks
between Fine Gael and Fianna Fail, but Sinn Fein has now
accused Minister Simon Coveney of stepping entirely
beyond his remit in announcing the move.
Gerry Adams described the situation as an ongoing farce
and a comedy of errors.
The Commission on Water Charges is due to report back to
the Oireachtas at the end of the month, when a 20 member
all-party committee will try to reach a consensus on the
issue.
Taoiseach Enda Kenny dismissed Sinn Fin's concern about
the appointment of the chairperson, saying Mr Adams had
once promised to pay his own charges.
Then when you heard the sound of marching feet out in
Tallaght you reversed engines, he said.
The Taoiseach added that Mr O'Ceidighs selection came on
foot of the confidence and supply arrangement between Fine
Gael and Fianna Fail.
Im quite sure that he will fulfil his remit in this regard in a
fair, clear and objective way, he told the Dil.
He said Fine Gael had always maintained a clear position
that people should pay for water but said they sat down
with Fianna Fail in order to make this government work.
Mr Adams said the deal was all about getting Fianna Fail off
the hook on this issue and getting you back into power.
http://www.independent.ie/irish-news/politics/gerry-adams-calls-watercharges-an-ongoing-farce-and-a-comedy-of-errors-35236057.html

Water charges will not be


coming back', claims
Fianna Fil leader
Niall O'Connor Twitter
EMAIL
PUBLISHED
19/11/2016

1
Michel Martin Photo: Colin O'Riordan

Michel Martin has claimed that water


charges will not be re-introduced - just days
before an independent commission produces
its long-awaited report on the prospect of a
charging regime.
Michel Martin has claimed that water charges will not be
re-introduced - just days before an independent commission
produces its long-awaited report on the prospect of a
charging regime.
In an interview with the Irish Independent, the Fianna Fil
leader said the previous regime "came into disrepute" and
his party remained opposed to any return of charges.
He said that a government would not have been formed had
it not been for Fianna Fil's decision to push for the
suspension of charges.
Mr Martin also rejected suggestions that he had fuelled
confusion surrounding his party's stance on the issue - a view
held privately by many of his own TDs.
But the decision to predict, just days before the commission
produces its report, that charges will not return will open Mr
Martin up to criticism.
"We said before the election we were against water charges.
We didn't want water charges. We wanted to abolish water
charges," the Cork South Central TD said.
"We got them suspended. I don't think they are coming back,
that's my honest position. I don't think this particular regime
is coming back. I don't think it's coming back, no," he added.
The report itself is due to be examined by a 20-member
Oireachtas committee - one of the largest committees in the
history of the State.

It is expected that the chairperson of the committee, which


will sit for around three months, will be a non-party TD.
The committee will be made up of five Government TDs, four
Fianna Fil TDs, two Sinn Fin TDs, and five members of
smaller parties or Independents.
Members of the commission are due to be paid 3,000 each,
while chairman Kevin Duffy is being paid 7,500. Mr Duffy
is also the chairman of the Public Sector Pay Commission.
The composition of the committee has been the subject of
tensions in recent days.
Fine Gael is strongly of the view that a charging regime
should return. Fianna Fil, however, has taken the opposite
opinion. According to Fianna Fil's submission to the
commission, a tax credit should be considered to compensate
those who have paid their bills.
Mr Martin warned that a decision will have to be taken as to
whether a better approach would be to pursue those who
have not paid their bills.
"My view is that when the law of the land is passed, we have
an obligation to obey the law of the land," he said.
"There is either two options, you either go down the route of
recouping, or tax credits, for those who have paid or we go
after those who haven't paid. (It's) one or the other, but it
has to be one," he added.
The Fianna Fil leader said he did not believe charges would
produce a significant revenue base to fund infrastructure.
Mr Martin told this newspaper: "The last charging regime
was losing money, so let's call a spade a spade.
"It is not huge money in terms of the kind of things we are
talking about here."
He insisted that his party will engage constructively on issues
such as conservation once the commission publishes its
recommendations.
He indicated that if the commission does recommend that
charges come back, Fianna Fil may reject the proposals.

He said: "We are not bound by the recommendations. We are


not going to be bound by them in advance. But we will
engage constructively at committee level."
http://www.independent.ie/irish-news/water/water-charges-will-not-becoming-back-claims-fianna-fil-leader-35228169.html

Firms face water bill hikes


under 'harmonised' system
Paul Melia Twitter
EMAIL
PUBLISHED
31/10/2016

1
Thousands of small and medium-sized businesses face hikes in their
water bills. (Stock photo)

Thousands of small and medium-sized


businesses face hikes in their water bills when
the regulator introduces a "harmonised"
system of charges in just over a year.
Some 190,000 SMEs and large users will be hit with a billing
review in 2018, but any increases are likely to be phased in
over a period of years, the Irish Independent has learned.
The move comes because more than 500 separate tariffs are
currently in place, and the Commission for Energy
Regulation (CER) wants to introduce a streamlined system
where a national charge applies.
Some companies will pay more, and others less when the
review is finalised, sources said.
"It's going to be a challenging project and sensitive," one
said. "This is hugely complex. It would be highly unusual to
have so many tariff structures for customers in a country the
size of Ireland. We're looking at a system which is more
simple and transparent."
Non-domestic customers currently pay their water bills
based on the charges which applied and were levied by local
authorities in 2013.
The 'average' cost for 1,000 litres of drinking water, and to
dispose of 1,000 litres of wastewater, stands at 2.37.
However, businesses in Kildare pay a combined charge of
just 1.59 - the cheapest in the country. By contrast, those in
Wicklow pay 3.04 - the most expensive.
The situation is further complicated by different 'standing'
and other charges applied. In addition, many large users
enjoy discounts, and may have entered into contracts with
local authorities which cannot be broken.
Disposal
Irish Water is currently taking control of the non-domestic
sector from local authorities, and this project is expected to
finish early next year.

It is also collating data on where these customers are located,


the amount of water they use and amounts paid.
Among the options being considered in the design of the new
tariff system include a geographical basis for charging. This
could involve lower charges in areas where the cost of
treatment and disposal of wastewater are cheaper. However,
sources said anything other than a national charge was
"unlikely".
Other issues include the imposition of a standing charge,
different rates depending on usage and different charges for
different sectors of the economy.
The CER will begin a public consultation on the new system
early next year, which will run for 12 months. A final decision
will be announced in early 2018, which will include an
outline of when the new charges will take effect.
New firms could be subject to the new tariff system
automatically, but no decision has been reached.
"Irish Water will make proposals on what way they think the
non-domestic tariff system will work going forward," a
source said. "It will include the costs of providing water, but
also how do we get people paying now to a simple, more
transparent system.
"It isn't going to be a big bang. They won't see tariffs go up
20pc or down 10pc. We have asked for a plan to transfer
people across over time - and it could be a considerable
period of time - to the new tariffs.
"Now we have a single water utility model, it would be fairly
standard to have a simple and equitable tariff regime."
http://www.independent.ie/irish-news/water/irish-water-crisis/firmsface-water-bill-hikes-under-harmonised-system-35174944.html

Michel Martin: Sinn Fin


'play-acting on water
charges' and we won't
support motion to abolish
Cormac McQuinn Political Correspondent
PUBLISHED
19/09/2016

1
Fianna Fil leader Michel Martin. Picture: Arthur Carron

FIANNA Fil won't be supporting Sinn Fin's


Dil motion to abolish water charges, Michel
Martin has said, describing the rival party's
move as "play-acting".
He said: "No motion can scrap water charges. Only a money
Bill can scrap water charges.
Mr Martin was speaking at the beginning of his party thinkin in Co Carlow.
He pointed our that only governments can propose money
Bills for a Dil vote. Sinn Fin's opposition motion will be
debated in the Dil on September 28.
I think Sinn Fin are play-acting in relation their particular
motion. Motions on their own cannot get rid of charges. Only
legislation can, Mr Martin added.
An Expert Commission is currently examining the future of
funding water services under the terms of Fianna Fils
confidence and supply agreement facilitating the minority
Fine Gael government.
Fianna Fils submission to that commission has called for
the abolition of charges.
However, Mr Martin confirmed his party will vote against
Sinn Fins motion to be debated in the Dil next week.
We're not into optics, we're into action, he said when asked
about the contradiction in its policy and their plan to oppose
the Sinn Fin motion.
Mr Martin added: We're the only party that's effected an
outcome on water - ie. the ending of the water charges
regime.
That has now happened because of our decision in entering
into the agreement with Fine Gael to ensure that that would
happen.

Water charges are suspended until after the Expert


Commission reports and TDs debate the groups findings.
Mr Martin said its unlikely that water charges will return
at that point.
The only way water charges can be re-introduced is via
legislation by the Dil and that is unlikely given the
configuration of parties within the Dil, he said.

THOUSANDS of water meters installed by


Irish Water would remain in place and be left
to rust if charges were abolished, Sinn Fin
has admitted.
The partys finance spokesperson Pearse Doherty said his
party is not proposing to dig the meters up and put them
on display.
He said they would remain installed and serve as a
reminder of the flawed policies of Fianna Fil and Fine
Gael.
Its their fault, we cant bring that money back, Mr Doherty

said.
Mr Doherty also outlined plans to refund householders who
have already paid their bills.
But he signalled that this refund would not be paid until
January 1, 2018. In the meantime, householders who have
paid a combined 162m in charges will be asked to register
for a refund.
The Donegal TD hit out at Fianna Fail and Fine Gael who he
said are responsible for meters being installed which will
now turn to rust.
But asked what Sinn Fin proposes to do in relation to the
metering programme, Mr Doherty replied:
They will join the voting machines and other disastrous
policies...We are not proposing to dig them up and put them
on display.
Mr Doherty said that under Sinn Fins plans, 130m that
has not been spent on water meters will go towards
improving infrastructure.
Domestic water charges will also be made free for everybody
on water schemes, the party says.
The issue of water charges was raised at Sinn Fins prebudget submission in Dublin City today.
The party says its proposals would raise 1bn in net taxes to
fund spending in the likes of childcare ,health and education.
Key tax proposals include a series of measures aimed at
tackling gold plated pensions, a new 7 per cent higher rate
of tax on incomes of 100,000 and above and the abolition
of property tax.
The partys pre-budget document also proposes to take
workers earning less than 19,572 out of the USC net and
increasing tax credits for the self-employed.
A second home tax would be brought in and set at 400,
while capital acquisition tax would be increased by 3pc to
36pc.
A betting pf 3pc would be brought in by Sinn Fin, while the

party also proposes to scrap the 9pc special VAT rate for
hotels but leave it in place for restaurants. And stamp duty
would also be increased by the party if in government.
The party also claims it would raise over 101m through a
volumetric sugary sweetened drinks tax at a rate of 24.64
per hectolitre.
Other measures announced include reducing TDs salaries to
75,000 and senators salaries to 60,000.
Maternity benefit would rise and there would be a 111m
subsidised childcare scheme for children aged six monthsthree years at a cost.
Responding to suggestions that the childcare scheme is very
similar to Childrens Minister Katherine Zappones proposed
version, Sinn Fin deputy Mary Lou McDonald said there
has been various and mixed messages coming from Cabinet.
But she signalled her party would be prepared to support the
Governments plan if it had merit and is fair.
In terms of housing, Sinn Fin says it will roll out a 491m
social housing programme.
And it says it will build 7,066 additional homes than the
number pledged by the coalition.
http://www.independent.ie/irish-news/water/irish-water-crisis/michelmartin-sinn-fin-playacting-on-water-charges-and-we-wont-supportmotion-to-abolish-35060947.html

EU water charges must


return - even after review
John Downing Twitter
BIO
PUBLISHED
08/10/2016

1
The EU Environment Commissioner Karmenu Vella

The EU has sent a strong signal to the


Government's Expert Water Commission that
it must include some form of water charges in
its recommendations.
The Commission was set up under the Government deal
between Fine Gael and Fianna Fil to examine the vexed
issue and is due to report next month.
The parties are opposed on the issue, with Fine Gael insisting
charges are required to invest in water and sewerage
services, while Fianna Fil wants them abolished at least
until services are brought up to an acceptable standard.
A response from the Brussels' executive on the Expert

Commission signals a big battle which will emerge shortly as


the Dil must again debate the report recommendations.
The EU's Environment Commissioner, Karmenu Vella, in his
first comment on the workings of the Expert Commission,
has said he expects "a robust water-funding" regime which
respects EU rules.
Mr Vella has already said that Ireland's EU exemption to
water charges had automatically expired when charges were
first imposed in 2015, and the country was now bound by the
Water Framework Directive (WFD) which makes charges
mandatory.
In reply to questions to Dublin Fine Gael MEP Brian Hayes,
the Environment Commissioner acknowledged that the
Government had informed him about the review work of the
Expert Water Commission set up after charges were
suspended.
"The Commission reiterated to the Irish authorities its view
on the requirements of the Water Framework Directive
(WFD) and the need for Ireland to establish a robust funding
system that secures the long-term quality of water and water
services, especially that investment in water is clearly
acknowledged as necessary by the Irish authorities
themselves," he said.
"It is now for the Expert Water Commission to get on with its
task of assessing the funding of domestic public water
services in Ireland and to make recommendations to the
Irish parliament on water pricing policy which comply with
WFD requirements and allow Ireland to be able to finance
the necessary improvements in water quality and
infrastructure," Mr Vella added.
Mr Hayes welcomed the statement and said the European
Commission had stuck to its line that Ireland must adhere to
water charges in line with the Water Framework Directive.
"For the Commission, a water pricing policy means that
there has to be some kind of a water charge based on

consumption," the Dublin MEP said.


http://www.independent.ie/irish-news/water/eu-water-charges-mustreturn-even-after-review-35113696.html

Clerks of Dil & Seanad take delivery of report on


Expert Commission on water
http://www.oireachtas.ie/documents/op/Nov16/Busine
ss/op241116.pdf
Irish Congress of Trade Unions Submission to the
Expert Water Commission September 2016
http://www.ictu.ie/download/pdf/congress_submission
_to_the_expert_water_commission.pdf
Water Report, March 2012
The Future of the Irish Water Sector. A copy of the document
can be obtained
http://www.ictu.ie/download/pdf/water_report_web.pdf

dublin_wastewater EX POST EVALUATION OF INVESTMENT PROJECTS COFINANCED BY THE EUROPEAN REGIONAL DEVELOPMENT FUND (ERDF) OR
COHESION FUND (CF) IN THE PERIOD 1994-1999 DUBLIN WASTE WATER
TREATMENT
http://ec.europa.eu/regional_policy/sources/docgener/evaluation/pdf/projects/dublin_wast
ewater.pdf

TAOISEACH Enda Kenny said that under


Fianna Fil's water policy "everybody could
leave their taps on" and the taxpayer would be
expected to foot the bill.

Mr Kenny hit out at the rival party's policy of abolishing


water charges, calling it a return to "populism" for Fianna
Fil.

Fianna Fail leader Micheal Martin. Photo: Gerry Mooney

In a briefing to reporters he reiterated that Fine Gael


supports a single utlity to provide water services,
conservation measures through metering, and a "fair and
affordable contribution" from households.
An Expert Commission is currently examining the future of
funding water services.
Fianna Fil has made a submission calling for charges to be
scrapped.
Mr Kenny said that under these circumstances water would
have to be funded by the central exchequer.
"It would mean that effectively that everybody could leave
their taps on and the public would be expected to pay for
whatever the outcome would be," he added.
In other issues covered Mr Kenny said that the Citizenz'
Assembly to discuss the Eighth Amendment will meet for the

first time on Saturday October 15.


Chaired by Supreme Court judge Mary Laffoy, it will examine
the law that bans abortion, giving equal status to the lief of a
mother and an unborn child.
Mr Kenny says he looks forward to receiving its conclusions.
On Brexit, Mr Kenny said he believes the British government
will trigger Article 50 - the beginning of their process of
leaving the EU - early next year, but that it's a matter for the
Prime Minister Theresa May.
He reiterated that the Budget here will have to be Brexitproofed.
Mr Kenny was asked about Finance Minister Michael
Noonan's hospitalisation for cullulitis last week.
He said that Mr Noonan has assured him of his fitness to
work and that he trusts him to tell him if he is not able to
work for health reasons.
He said Mr Noonan is to meet his British counterpart Philip
Hammond tomorrow to discuss Brexit.
Mr Kenny said that the north inner city taskforce - set up to
support the area amid the spate of gangland killings this year
- is "an issue that I've taken very much to heart."
He said he's had several meetings with the commintiy and
said their resilience is "quite incredible".
"The area's been given a bad name by a small percentage of
people," he said,
Mr Kenny said he's against the legalisation of drugs but is in
favour of medically supervised injection centres.
Firstly, this report isn't due until tomorrow, but we're getting
hints of the possible out come to soften the impacted of the
conniving deeds of this governments and Fianna Fil in their
attempts to enforce water charges. Secondly both Enda
Kenny and Micheal Martin need to realise that this political
quango Iris water is a financial quagmire that the big boys in
Europe have already rejected its capabilities of survival
without government funding and that money taken from

hard pressed Taxpayers through political exploration.


Therefore as of now both parties should take note that any
suggestions of a household limit will be strongly rejected as
that was a previous intent to shaft ordinary decent people
who've already paid for water through Motor taxation.
Disabled people lost proper home care the ordinary people
were taxed beyond survival whilst government enrich
themselves and their cronies. Time for politicians like Kenny
and Martin learned that enough is enough.
The only way of stopping the privatisation of our water is to
leave the EU,
The only referendum being offered is one to put Irish Water,
the commercial utility, into the constitution as a public utility
and that in itself is a red herring because it does not stop the
opening of the market for water as a resource because any
commercial utility regardless of who owns it will cause a
commodification of that resource and thus force our
Government to open the market to third parties.
Housing, healthcare and water (in any order you choose)
were the three biggest issues around which the last election
was fought. Six months into 'new politics' and the Fine GaelIndependent Alliance charade, and things have only got
worse on all three fronts. We have more homeless people
than any other time in living memory, we have more people
on hospital trolleys and waiting for medical procedures than
ever before, and people are still being asked to throw good
money after bad on a failed billing service that can't even pay
its own way, much less fix they system it was allegedly
created to maintain and upgrade. FF may think they're
playing a smart game by allowing these and other FG
debacles rumble on, but facilitating FG in office makes them
equally responsible for the mess.

The Government has sought nominees to form


an Expert Commission to make
recommendations on the long-term funding
model for delivering water services.
A key part of the Programme for Government, the
Commission is expected to complete its work five months
after being established, and its report will be considered by a
special Oireachtas committee before a Dil vote.
Both national and international experts are required, and
parties have been invited to make nominations. The
commission will require "professional expertise" in funding
and financing of large -scale infrastructure investment and
maintenance programmes, economic regulation, water
resources management and environmental law.
Infrastructure
Nominations should be submitted by this Friday. Among the
issues to be addressed are funding the network over the
longer-term, proposals on how Irish Water will be able to
borrow to invest in infrastructure and how conservation can
be encouraged.
The Cabinet yesterday approved legislation to suspend water
charges for nine months, taking effect from July 1, in line
with the Fine Gael/Fianna Fil minority government deal.
Meanwhile, the Chair of the Public Water Forum has said the
Government "failed drastically" in putting across a proper
debate on Irish Water.
Dr Tom Collins said policymakers and Irish Water failed in
their message and the entire discussion had been poorly
handled.
Speaking to the Irish Independent Dr Collins said the public
would have been more open to the discussion around Irish
Water had it focused on resource conservation.
"We have failed, I think policymakers have failed drastically
to present to the public the issue of water in a wider debate

than merely water charges , the issue has to be seen in a


much wider way," he said.
He said he believed the country needs a national authority
around water but stressed if that was to involve a cost it must
be affordable, saying citizens had a right to the supply
"regardless of their capacity to pay for it".

Ritas short story


November 29, 16

Ok, let me explain with a simple story.


A man goes into a shop for the week's food. The bill
comes to 40 euro. He looks in his wallet and has 10
euro in cash, as he left most of his cash at home. He
puts the 10 euro on the counter. He also finds a 10
euro voucher that someone gave him to spend in
that shop. He still needs 20 euro more. He takes
out his chequebook, but remembers his account is
low as payday is close, so he can only write a cheque
for 10 euro. He needs to pay 10 euro more, so he
puts the balance on the credit card. He goes home
with the food, and still has several hundred quid as
cash at home.
If he comes away arguing that 40 euro was too much
for the food, I will listen to his argument, comparing
prices to other shops and countries. But if he says it
is too expensive because he paid for it 4 TIMES, he is
the most stupid person on the planet, because he
doesn't realise that COUNTING the times he paid
makes no sense, ADDING the total amounts makes
sense.
The international norm for supplying drinking
water to households is about 1000 per household,
regardless of whether it comes from per-use or from
taxation. A 160 euro part-contribution doesn't count
as paying ONCE, and more than our friend above

could argue that he had already paid his 40 euro


food bill with the tenner. Neither does 10% of your
400 euro motor tax count as paying once. Show me
the maths, don't just count the pieces.
To continue our story: Our friend starts to fall ill
(like our water infrastructure is leaking), and one
opinion is that he has not been having enough food.
He needs to increase his food spending to 50 euro
per week. He thinks 40 is appropriate because he is
used to it, but he has no frame of reference to say
that 40 was too low, and he doesn't want to hear
otherwise. He has paid 4 TIMES, and now he is
expected to pay 5 TIMES.
He decides to investigate and comes up with an
uncomfortable truth. His next door neighbour has
been growing his own veg and meat for the last
decades, has not been using the shop, but has also
been paying the same 40 euro weekly, and it has
been paid against our friends account every week
for decades, and his neighbour never complained.
It seems the actual cost of food was always 80 euro,
and he was only ever paying a flat amount, shared
with his neighbour who never used the service. This
"extra" tenner is actually the first time he has ever
had to pay anything that is actually associated with
the amount he eats.
He is horrified! Food is a human right, and so his
neighbour should continue to pay for him, and
should not receive any benefit for paying privately
for growing his own food.
The shop continues to provide food, with no demand

for anyone to pay based on what they eat. Many


people who would normally have no issue with
paying for food decide to stop paying because their
neighbours aren't paying. Our friend uses this to
ease his conscience. If others are paying, then I
must be right.
In the meantime, the neighbour, who has paid for
our 'hero's food all along, decides "to hell with this,
I've paid for years and never complained. Now this
guy is causing a racket because he has contribute a
tiny proportion directly. I'm looking at options to recoup my 40 euro, back-dated, and my conscience is
squeaky clean".
He only part of the above story that is incorrect, is
that our friend is not in fact the most stupid person
on the planet. He has company, plenty of it.
NO means No Fine Gael Not now not ever will I pay
for your bad management of our taxes.
Let the ministers pay from their massive expenses
and huge salaries - pension pots & rented properties
they have. Yea a greedy lot running the country
with respect, Firstly if your car is leaking fuel you fix
it, hence saving yourself money. In 1997 Brendan
Howlin took a percentage or levy off our high
Motor-Tax to pay for water. The Gov established
this quango Irish water who in return went on a
rampage installing meters to charge for water. The
took around 800m of Motor-Tax contributions to
fund Irish water as they wanted to show profit
before repairing leaks and replacing damage pipes.
That all down to a lack of accountability.

You can see what is happening here. The


government is going to move this to general taxation
- this now brings Revenue into the game and like
LPT can now be deducted at source.
Then the commercial entity that is IW is dead.
Revenue cannot collect monies for a state utility
company.
MCT? Dead.
Privatisation? Dead.
IW? Dead.
Abtran in Cork? 2,500 on the dole, all thanks to
blueshirt arrogance.
I'm only making it the point that you can't have it
both ways, it's either tax or it's a private charge.
2.5bn Kenny & Co have blown on Irish Water to date
.. he just doesn't care - it wasn't his money in the
first place - it was ours.
pay for wasteful water usage .
aim.:: to fool people into getting metered
state to become a customer of irish water
aim : to privatise irish water, the tail wags the dog
irish water to remain
aim : to continue wastage of taxes and feed cronies
why isnt the subject of putting irish water firmly in
the nations control not a topic for the referendum
commission
Slovenia another member of the eu has just
protected water for its citizens in its constitution .
WHY HASN'T F/FAIL AND FINEGAEL DONE THIS?
AIM: pRIVATISATION

I'm not buying it, just as I don't buy the claim that
the Vartry tunnel will collapse or that we will all
have lead poisoning due to old and dilapidated
pipes. One thing the Victorians did well was build
infrastructure. Just like the canals, the grand
houses, lighthouses and railroads they were built to
last and last they will with a bit of maintenance.
Dont' need to be rebuilt, that's just a red herring.
They could come up with any number from 500m to
5 trillion to back up their rationale for continued
existence. But I wouldn't believe a word of any of it.
There is plenty of money to fund water
infrastructure, and if not (which I doubt) they have
1.5bn a year profit as bank shareholders as well as
a corporate tax regime that yields a tiny fraction of
the 12.5% corporation tax that should be paid. They
could do something about that but prefer not to,
because Paddy is a much easier target. They could
have negotiated a deal to eliminate the 2,000
million a year we pay on bank debt that is not ours,
that would fund a lot of houses, water infrastructure
or whatever - but they didn't even ask for it. They
don't want 13,000m from Apple which they could
claim as being part of the EU ruling we must follow,
but they don't. So no, I'm not buying any of this and
I'm not paying a 3rd time for what I already paid for.
The last election gave numerous TD's a mandate to
abolish Irish Water and water charges They have
tried to slither out of it. The main purpose of the
commission is to get people registered by promising
them they will be "exempt" if people accept that the
quango has a contract with them then Irish Water
high five in their spanking new offices
The commission is a stitch up and was so ever
before it was even appointed

Will not pay for water at all , end of.


Once their is a charge in place no matter how small
it will increase every year, just like the car tax when
Fianna Fail reduced it to 5 instead of abolishing it
at the time and now look what motorist are paying.
We are not fools any more Enda.
Waste full of Taxpayer money by Irish water for all
the perks and bad decisions they are still making
Once "Irish Water" get their foot in the door, there'll
be no stopping them.
We must not allow ourselves to have the wool pulled
over our eyes by putting "modified" water charges
to us in soft focus.
They will stop at nothing to get these "water
charges" in place - by hook or be crook.
We have to show them that we are not stupid.
A great victory for the taxpaying worker FG wont
burden him anymore .OK the USC will remain in
place and Councils will charge the full rate on the
household charge .Then the real payees will be