McGimpsey v Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice Barrington
• Judgment Date: 29 July 1988
• Neutral Citation: 1988 WJSC-HC 2565
• Court: High Court
• Docket Number: [1987 No. 4524P],No. 4524p/1987
• Date: 29 July 1988

MCGIMPSEY v. IRELAND

BETWEEN:

CHRISTOPHER McGIMPSEY AND MICHAEL McGIMPSEY

PLAINTIFFS

AND

IRELAND AND AN TAOISEACH, AN TANAISTE, THE MINISTER FOR THE GAELTACHT, THE MINISTER FOR FOREIGN AFFAIRS, THE MINISTER FOR FINANCE, THE MINISTER FOR JUSTICE, THE MINISTER FOR AGRICULTURE AND FOOD, THE MINISTER FOR SOCIAL WELFARE, THE MINISTER FOR INDUSTRY AND COMMERCE, THE MINISTER FOR TOURISM AND TRANSPORT, THE MINISTER FOR ENERGY COMMUNICATIONS AND FORESTRY, THE MINISTER FOR THE MARINE, THE MINISTER FOR THE ENVIRONMENT, THE MINISTER FOR LABOUR, THE MINISTER FOR HEALTH, THE MINISTER FOR DEFENCE, THE MINISTER FOR EDUCATION AND THE ATTORNEY GENERAL

DEFENDANTS

1988 WJSC-HC 2565

No. 4524p/1987

THE HIGH COURT

Synopsis:

CONSTITUTION

International relations

Treaty - Validity - Government - Functions - Sovereignthy - Derogation - Anglo-Irish Agreement - Agreement challenged by Irishman born in Northern Ireland - ~Locus standi~ of challenger to invoke provisions of the Constitution - Both of the plaintiffs were born and lived in Northern Ireland - They were members of the Official Unionist Party and one of them held an Irish passport - They believed that the Government of Ireland, by entering into the Anglo-Irish Agreement, had aggravated the political situation of Northern Ireland and had violated the provisions of the Constitution; they sought in the High Court declarations to that effect - The plaintiffs submitted that the Agreement, by recognising the legitimacy of the present constitutional arrangements in Northern Ireland, violated Articles 2 and 3 of the Constitution which declare that the national territory consists of the whole island of Ireland and limit, pending the re-integration of the national territory, the application of the laws enacted by the Oireachtas to the area to which the laws of Saorstat Eireann applied - They submitted that the effect of the Agreement was to fetter the Government in the exercise of the executive power of the State contrary to the provisions of Article 29 of the Constitution - They submitted that the Agreement purported to give the State power to have regard to the minority population of Northern Ireland and to disregard the majority population there - Held, in dismissing the plaintiffs' claims, that each of them was an Irish citizen and had ~locus standi~ to raise the said issues in the courts established under the Constitution, despite the fact that the plaintiffs did not accept the validity of the provisions of Articles 2 and 3 thereof:~Cahill v. Sutton~ [1980] I.R. 269 and ~Crotty v. An Taoiseach~ [1987] ILRM 400 considered - Held that the Government, in exercising the executive power of the State in the field of external relations, are subject to the provisions of the Constitution: ~Boland v. An Taoiseach~ [1974] I.R. 338; ~Crotty v. An Taoiseach~ [1987] ILRM 400 and ~The State (Gilliland) v. Governor of Mountjoy Prison~ [1987] ILRM 278 considered - Held that the formulation of the foreign policy of the State is part of the executive function of government and, as such, is not amenable to review by the Courts - Held that there is a presumption that an international treaty, created by an exercise of the executive function of the Government, does not conflict with the provisions of the Constitution and, accordingly, the plaintiffs had to discharge the onus of proving such conflict - Held that the interpretation of the terms of the Agreement, being an international treaty, must be conducted in accordance with the relevant principles of international law - Held that an international treaty to which the State is a party represents the result of a process of bargaining between the contracting parties and that the Courts should accept the Government's judgement on the matters embodied in the treaty, unless a clear conflict with some provision of the Constitution is established - Held that the terms of the Agreement do not violate the provisions of Articles 2 and 3 of the Constitution whether or not those provisions constitute the declaration of a political aim or the assertion of a legal claim: ~The People v. Ruttledge~ [1978] I.R. 376, ~Boland v. An Taoiseach~ [1974] I.R. 338, ~The State (Gilsenan) v. Mc Morrow~ [1978] I.R. 360 and ~Russell v. Fanning~ [1988] ILRM 333 considered - Held that the fact that the Agreement was one of indeterminate duration did not conflict with any provisions of the Constitution - Held that the Agreement did not impose any fetter on the exercise of the executive power of government since article 2 thereof expressly states (a) that there was no derogation from the sovereignty of the Irish Government and (b) that the Irish Government retains responsibility for the decisions and administration of government within its own jurisdiction - Held that the terms of article 4(c) and article 5(c) of the Agreement, referring to the right of the Irish Government to make proposals relating to the minority population in Northern Ireland, were not in conflict with any provision of the Constitution - Anglo-Irish agreement (15/11/85) - Constitution of Ireland, 1937, Articles 2, 3, 28, 29 - (1987/4524 P - Barrington J. - 29/7/88) 1989 IR 567

|McGimpsey v. Ireland|

GOVERNMENT

Powers

Limitation - Foreign policy - Treaty - Executive power of the State - Interpretation of treaty -~Locus standi~ of person challenging constitutionality of treaty - Anglo-Irish Agreement - ~See~ Constitution, international relations - (1987/4524 P - Barrington J. - 29/7/88) 1989 IR 567

|McGimpsey v. Ireland|

PRACTICE

Parties

~Locus standi~ - Foreigner - Government - Executive power - Exercise - Validity - Challenge by foreigner - (314/88 - Supreme Court - 1/3/90)

|McGimpsey v. Ireland|

Citations:

ANGLO-IRISH AGREEMENT 15.11.85

CROTTY V AN TAOISEACH 1987 ILRM 400, 1987 IR 713

CAHILL V SUTTON 1980 IR 269

CONSTITUTION ART 2

CONSTITUTION ART 3

CONSTITUTION ART 29.4

CONSTITUTION ART 28.2

CONSTITUTION ART 29.4.1

BOLAND V AN TAOISEACH 1974 IR 338, 109 ILTR 13

GILLILAND, STATE V GOV MOUNTJOY 1987 ILRM 278

BUCKLEY & ORS (SINN FEIN) V AG 1950 IR 67

EAST DONEGAL CO-OP V AG 1970 IR 317

RUSSELL V FANNING 1988 ILRM 333, 1988 IR 505

CONSTITUTION ART 1

CRIMINAL LAW JURISDICTION BILL 1975, IN RE 1977 IR 129

AG PEOPLE V RUTTLEDGE 1978 IR 376

GILSENAN, STATE V MCMORROW 1978 IR 360

CONSTITUTION ART 29

CONSTITUTION ART 28

CONSTITUTION ART 29.4.3

CONSTITUTION ART 29.5

AUSTRALIA V FRANCE 1974 ICJR 253

TEMPLE OF PREAH VIHEAR 1962 ICJR 6

EASTERN GREENLAND PCIJ SERIES AB 1933 NO 53

SINGLE EUROPEAN ACT TITLE III

1 Judgment of Mr. Justice Barrington delivered the 29th day of July 1988.

2 In this case the Plaintiffs claim a declaration that the Agreement concluded between the Government of Ireland and the Government of the United Kingdom at Hillsborough, Co. Down, on the 15th day of November 1985, generally known as the Anglo-Irish Agreement, is contrary to the provisions of the Constitution.

The Plaintiffs

3 The first named Plaintiff Christopher McGimpsey was born on the 3rd of September 1952 at Donaghdee, Co. Down and now lives at 40 Kings Road, Belfast, Northern Ireland. He was educated at Campbell College, Belfast, Syracuse University, and the University of Edinburgh. He is a historian by training and is a company director. He is the holder of an Irish passport.

4 The second named Plaintiff, Michael McGimpsey, was born on the 1st of July 1948 in Northern Ireland and resides at Ardeevin, 97 Belfast Road, Newtownards, Co. Down. He was educated at Regent House, Newtownards and at Trinity College Dublin. He is a company director.

5 Both Plaintiffs were born in Ireland and are therefore, in cotemplation of Irish law, citizens of Ireland.

6 Both Plaintiffs are members of the Official Unionist Party of Northern Ireland. Both are deeply concerned about the present state of Northern Ireland and of all Ireland. Both reject any form of sectarianism and both have been involved in peace movements working to accommodate people of various traditions who live on the island of Ireland. Both gave evidence before the New Ireland Forum and, in oral and written submissions, attempted to explain to the Forum how the problem appeared to men fully committed to Unionism but interested in finding a peaceful solution to the problems of Northern Ireland and of Ireland.

7 Both believe that the Anglo-Irish Agreement has aggravated the problem and, instead of solving the problem, has become part of it. Both complain that the Irish Government, in entering into the Anglo-Irish Agreement neglected its duty to the majority community in Northern Ireland and violated the provisions of its own Constitution.

8 The Defendants are the State, the Government and the Attorney General.

The Anglo-Irish Agreement

9 The text of the Anglo-Irish Agreement published by the Government Publications Office is as follows-

AGREEMENT

between

THE GOVERNMENT OF IRELAND

and

THE GOVERNMENT OF

THE UNITED KINGDOM

10 The Government of Ireland and the Government of the United Kingdon:

11 Wishing further to develop the unique relationship between their peoples and the close co-operation between their countries as friendly neighbours and as partners in the European Community:

12 Recognising the major interest of both their countries and, above all, of the people of Northern Ireland in diminishing the divisions there and achieving lasting peace and stability:

13 Recognising the need for continuing efforts to reconcile and to acknowledge the rights of the two major traditions that exist in Ireland, represented on the one hand by those who wish for no change in the present status of Northern Ireland and on the other hand by those who aspire to a sovereign united Ireland achieved by peaceful means and through agreement;

14 Reaffirming their total rejection of any attempt to promote political objectives by violence or the threat of violence and their...