Boland v an Taoiseach

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 01 January 1975
• Docket Number: [1973 No. 3289 P.]
• Date: 01 January 1975

Boland v. An Taoiseach

KEVIN BOLAND

Plaintiff

and

AN TAOISEACH and Others

Defendants.

[1973 No. 3289 P.]

Supreme Court

Constitution - Executive - International relations - Conference between Irish and British governments - Agreed communiqué issued - Whether Irish government party to unconstitutional agreement - Whether courts have power to review actions of government - Constitution of Ireland, 1937, Articles 2, 3, 6, 15, 28, 29, 34.

On the 6-9th December, 1973, a conference was held at Sunningdale in England between the Irish and British governments and the parties involved in the Northern Ireland Executive (designate). During the conference the parties discussed the establishment of a Council of Ireland confined to representatives of the two parts of Ireland, and they decided to commence studying the problems involved so as to identify and, prior to the formal stage of the conference, report on areas of common interest in relation to which a Council of Ireland would take executive decisions. At the conclusion of the first stage of the conference the parties issued an agreed communiqué which contained at clause 5 a statement by the Irish government to the effect that they fully accepted and solemnly declared that there could be no change in the status of Northern Ireland until a majority of the people of Northern Ireland desired a change in that status; and a statement by the British government to the effect that it was, and would remain, their policy to support the wishes of the majority of the people of Northern Ireland, that the present status of Northern Ireland was that it was part of the United Kingdom, and that, if in the future the majority of the people of Northern Ireland should indicate a wish to become part of a united Ireland, the British government would support that wish. Clause 6 of the communiqué stated that the conference had agreed that a formal agreement, incorporating the declarations in clause 5, would be signed at the formal stage of the conference and registered at the United Nations. Clause 20 of the communique stated that the conference had agreed that a formal conference would be held early in 1974 at which the parties would meet to consider reports on the studies which had been commissioned, and to sign the agreement reached.

On the 17th December, 1973, the plaintiff issued a summons in the High Court in which he claimed that the signing of any agreement, formal or informal, by the Government of Ireland in the terms of the communiqué would be repugnant to the Constitution of Ireland, 1937, and he claimed an injunction restraining the Government of Ireland from implementing any part of the communique and from entering into any agreement which would limit the exercise of sovereignty over any portion of the national territory or which would prejudice the right of the parliament and government of Ireland to exercise jurisdiction over the whole of the national territory.

Held by Murnaghan J. and affirmed by the Supreme Court (FitzGerald C.J., O'Keeffe P., Budd, Griffin and Pringle JJ.) that the declaration and other acts of the Government of Ireland at the Sunningdale conference owed their existence to an exercise of the executive power of government and that, in the circumstances, the Courts had no power under the Constitution to review the conduct or policy of the Government.

Plenary Summons.

The plaintiff's summons was issued on the 17th December, 1973, and it named as defendants the Taoiseach (Prime Minister), the Minister for Foreign Affairs, and the Attorney General. By order of the High Court (O'Keeffe P.) made on the same day the following persons were added as defendants:— The Tánaiste and Minister for Health and Social Welfare, the Minister for Finance and Minister for the Public Services, the Minister for Defence, the Minister for Labour, the Minister for the Gaeltacht, the Minister for Lands, the Minister for Posts and Telegraphs, the Minister for Transport and Power, the Minister for Industry and Commerce, the Minister for Education, the Minister for Justice, the Minister for Local Government and the Minister for Agriculture and Fisheries. By order of the High Court (O'Keeffe P.) dated the 19th December, 1973, the defendants were ordered to deliver their defence on or before the 3rd January, 1974, and the plaintiff was ordered to deliver his reply (if any) on or before the 8th January, 1974, and it was ordered that the action be tried on the 11th January, 1974, and subsequent days.

The facts have been summarised in the head-note and they appear in the .judgments, post. In paragraph 8 of his statement of claim the plaintiff pleaded that clause 5 of the agreed communique was repugnant to the Constitution and in particular to Articles 1-6 and 34 thereof in that (a) it acknowledged that a portion of Ireland described as "Northern Ireland" was part of the United Kingdom; (b) it acknowledged that "Northern Ireland"cannot be re-integrated into the national territory until and unless a majority of the people of "Northern Ireland" indicate a wish to become part of a United Ireland; (c) it purported to deprive the Irish people as a whole of the right to national self-determination and to determine the status and territorial sovereignty of the Irish nation: (d) it purported to limit the national territory of the Irish nation to a portion of the island of Ireland; (e) it prejudiced the right of the parliament and government established by the Constitution to exercise jurisdiction over the whole of the national territory; (f)it purported to impose British nationality and citizenship upon a section of the Irish people residing in an area described as "Northern Ireland" who at all material times were citizens of Ireland; (g) it precluded the Courts set up under the Constitution from exercising jurisdiction over the whole island of Ireland.

The allegations contained in paragraph 8 of the statement of claim were traversed in the defence. In paragraph 2 (i) of their defence the defendants pleaded that the agreed communique was a statement issued for publication following a conference held between the Irish and British Governments and the parties involved in the Northern Ireland Executive (designate), and they acknowledged that part of the communique recites and records matters agreed at the Sunningdale conference and recites and records statements and declarations made and decisions taken at the Sunningdale conference. In paragraph 2 (ii) of their defence the defendants pleaded that clause 5 of the communiqué does not set forth the terms of any agreement made between the British and Irish Governments, and that clause 5 recites and records separate declarations made by the Irish Government and by the British Government at the Sunningdale conference.

Articles 1-9 of the Constitution of Ireland, 1937, provide as follows:—

"1. The Irish nation hereby affirms its inalienable, indefeasible, and sovereign right to choose its own form of Government, to determine its relations with other nations, and to develop its life, political, economic and cultural, in accordance with its own genius and traditions.

2. The national territory consists of the whole island of Ireland, its islands and the territorial seas.

3. Pending the re-integration of the national territory, and without prejudice to the right of the Parliament and Government established by this Constitution to exercise jurisdiction over the whole of that territory, the laws enacted by that Parliament shall have the like area and extent of application as the laws of Saorstát Éireann éireann and the like extra-territorial effect.

4. The name of the State is Éire éire, or in the English language, Ireland.

5. Ireland is a sovereign, independent, democratic state.

• 6. 1. All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.

  • 2. These powers of government are exercisable only by or on the authority of the organs of State established by this Constitution.

7. The national flag is the tricolour of green, white and orange.

• 8. 1. The Irish language as the national language is the first official language.

  • 2. The English language is recognised as a second official language.

  • 3. Provision may, however, be made by law for the exclusive use of either of the said languages for any one or more official purposes, either throughout the State or in any part thereof.

  • 9. 1. 1 On the coming into operation of this Constitution any person who was a citizen of Saorstát Éireann éireann immediately before the coming into operation of this Constitution shall become and be a citizen of Ireland.

    • 2 The future acquisition and loss of Irish nationality and citizenship shall be determined in accordance with law.

    • 3 No person may be excluded from Irish nationality and citizenship by reason of the sex of such person.

      • 2. Fidelity to the nation and loyalty to the State are fundamental political duties of all citizens."

Article 15, s. 2, sub-s. 1, of the Constitution provides:—"The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State."

Article 28, s. 2, of the Constitution provides:— "The executive power of the State shall, subject to the provisions of this Constitution, be exercised by or on the authority of the Government." Article 28, s. 4, sub-s. 1, states:— "The Government shall be responsible to Dáil Éireann éireann."

Article 29, ss. 4-6, of the Constitution provides:—

"4. 1 The executive power of the State in or in connection with its external relations shall in accordance with Article 28 of this Constitution be exercised by or on the authority of the Government.

• 2 For the purpose of the...