McCauley v Minister for Posts and Telegraphs

• Jurisdiction: Ireland
• Court: High Court
• Judgment Date: 14 February 1966
• Docket Number: (1964. No. 400 P.)
• Date: 14 February 1966

Macauley v. Minister for Posts and Telegraphs.

WILLIAM PERINE MACAULEY

Plaintiff

and

The MINISTER for POSTS and TELEGRAPHSand In the Matter of the Preliminary Issue Directed to be Tried Between William Perine Macauley and The Attorney General and The Minister for Posts and Telegraphs

(1964. No. 400 P.)

Constitution of Ireland - Act of Oireachtas - Validity - Repugnancy to Constitution - Ministers and Secretaries Act, 1924 - Provision that Ministers of State might be sued in official name subject to fiat of Attorney General having been first obtained - Constitution of Ireland, Article 40, 3 - Ministers and Secretaries Act, 1924 (No. 16 of 1924), s. 2, sub-s. 1.

Since a right to have recourse to the High Court to assert and vindicate a legal right is one of the personal rights of the citizen referred to in Article 40, section 3, 1, of the Constitution, s. 2, sub-s. 1, of the Ministers and Secretaries Act, 1924, is repugnant to the provisions of the Constitution in so far as it requires the fiat of the Attorney General to be obtained before legal proceedings can be validly instituted in the High Court against a Minister of State, because 1, the State has not, by s. 2, sub-s. 1, of the Ministers and Secretaries Act, 1924, respected that right; and

2, The State has not, as far as is practicable, by its laws defended and vindicated that right.

So held by Kenny J.

Preliminary Issue.

The plaintiff, William Perine Macauley, intended to commence legal proceedings against the Minister for Posts and Telegraphs, seeking a declaration that the Minister was obliged to provide a proper telephone service in accordance with the latter's agreement with the plaintiff. The fiat of the Attorney General was sought. This was not forthcoming, though it was never formally refused. Ultimately, on the 24th February, 1964, the plaintiff issued a High Court summons, in which the Minister was the defendant, without the Attorney-General's fiat. The Minister brought a motion seeking a declaration that the purported service of the summons was void in that the provisions of s. 2, sub-s. 1, of the Ministers and Secretaries Act, 1924, had not been complied with. On the hearing of the motion the plaintiff indicated that he would be contesting the constitutional validity of the section. Kenny J. thereupon adjourned the motion to enable the plaintiff to serve notice of it on the Attorney General. On the 11th May, 1964, Kenny J. directed a preliminary issue to be tried between the plaintiff, the Minister and the Attorney General:—"Whether the said section 2, sub-section 1, of the said Act is repugnant to the Constitution in so far as it requires the fiat of the Attorney General to be obtained before proceedings can be validly instituted against a Minister of State."

Before 1922, if a citizen wished to pursue a remedy against an officer or Department of State he was obliged to proceed by petition of right. The Petitions of Right (Ireland) Act, 1873, adapts to Ireland the provisions of the Petitions of Right Act, 1860. Under that Act the subject petitioned, as suppliant, "in order that Her Majesty . . . may grant her fiat . . ." It is to be noted that it was the sovereign's fiat, not that of the Home Secretary or Attorney-General. The history of the petition of right is to be found in Holdsworth's History of English Law, at pp. 7 et seq and at pp. 40 et seq. In Britain the procedure has been abolished by the Crown Proceedings Act, 1947. The Act of 1873 was never repealed in Ireland, but the Supreme Court seems to have treated it as being obsolete in In re Irish Employers Mutual Insurance Association Ltd.(1).

There are no provisions relating to the Attorney General in the Constitution of 1922. That Constitution states that all powers of government and all authority, legislative, executive and judicial, derive from the people of Ireland. The first provisions relating to the office of Attorney General occur in the Ministers and Secretaries Act, 1924, s.6, whereby, in effect, he is given all the functions of the former law officers. Sect. 2 of that Act permits Ministers to sue and to be sued, subject to the fiat of the Attorney General. From 1922 to 1937 the King was part of the Irish constitutional arrangement and the Attorney General had similar duties to the British Attorney General. But the Constitution of 1937 made radical alterations. Article 30 deals with the position and functions of the Attorney General. He is to exercise powers and functions conferred on him "by this Constitution or by law." They are the only two sources of his functions. The office is an entirely new creation, though it bears the same name as the office under the Ministers and Secretaries Act, 1924. But the new Attorney, unlike his predecessor, inherited no powers or functions. It may be argued that, because Article 49, 1, of the Constitution of 1937 provides that all pre-existing prerogatives are declared to belong to the people, a fiat is necessary before the State may be sued. But a prerogative is a peculiarly royal thing."It extends to all powers, preheminences and privileges, which the Law giveth to the Crowne": Co. Litt. 90b. It cannot exist in a republic.

The requirement of a fiat is inconsistent with the Constitution because 1, the Constitution of 1937 did not give

the Attorney General any such power; 2, there should be no bar to a citizen pursuing a remedy against the State: nothing in the Constitution suggests that the people of Ireland should be exempt from defending actions; 3, the necessity for a fiat arises from the immunity of the sovereign in civil proceedings; there is no king now. The survival of the sovereign's privilege has already been reduced in scope by In re P.C., An Arranging Debtor(1) and In re Irish Employers Mutual Insurance Association Ltd.(2);4, the Attorney General, in deciding whether a fiat should issue or not, would be acting in a judicial manner: In re Solicitors Act, 1954 (3). Furthermore, the person exercising this potential power of veto over an intended action against a Minister, is, by the Constitution, the adviser of the Government in matters of law.

[He also referred to Leyden v. Attorney-General and Others(4); In re Irish Aero Club: Gillic v. Minister for Industry and Commerce and Minister for Defence(5).]

Article 40, 3, paras.1 and 2, of the Constitution provide that the State shall by its laws defend and vindicate the personal rights of the citizen. The right to have recourse to courts of justice for the redress of grievances and the settlement of disputes is a fundamental right of the citizen: Buckley and Others (Sinn Féin) v. Attorney General and Another(6).The power of withholding a fiat clearly infringes this right.

Cur. adv. vult.

On the 27th July, 1965, the case was re-entered for hearing, when Kenny J. invited counsel to consider whether they wished to add anything to their arguments in view of the judgment which had been delivered by the Supreme Court, on the 31st July, 1964, in the case of The State (Quinn) v.Ryan(7).

Cur. adv. vult.

Kenny J. :—

In June, 1963, the plaintiff, Mr. William P. Macauley, a farmer who lives at Manor Kilbride, County Wicklow, was so dissatisfied with the telephone service which he was getting that he decided to take legal proceedings against the Minister for Posts and Telegraphs. His legal advisers decided

to claim a judicial declaration that the Minister was under an obligation to provide a proper, reasonably efficient and effective telephone service for him under the agreements for telephone service which he had signed. On the 26th June, 1963, his solicitors sent to the Attorney General's Office a draft of the plenary summons which they proposed to issue with a certificate from a well known member of the Bar that the case was a proper one for the grant of the Attorney General's fiat. On the 28th June his solicitors were informed by letter that the practice was that a statement of the facts about the proposed action had to be sent to the Attorney General before he could consider the grant of a fiat. A statement of facts was sent on the 9th July and a long correspondence followed. The then Attorney General did not grant or refuse a fiat but asked for more information. This correspondence continued until the 10th February, 1964, when the plaintiff's solicitors abandoned their attempt to get the fiat and, on the 24th February, issued a plenary summons in this Court against the Minister in which they claimed a number of declarations.

Shortly after the issue of the summons, some preliminary skirmishing took place in this Court in the course of which counsel for the Minister stated that his client had not been served with the summons and had not entered an appearance. The matter was then put on a more regular basis by a motion, issued on the 21st April, 1964, in which the Minister applied for an order that "the purported service of the originating plenary summons herein be set aside on the ground of irregularity in that the provisions of section 2, sub-section 1, of the Ministers and Secretaries Act, 1924, have not been...