McGimpsey v Ireland

• Jurisdiction: Ireland
• Judge: McCarthy J.,,FINLAY C.J.
• Judgment Date: 01 March 1990
• Neutral Citation: [1990] IESC 3
• Court: Supreme Court
• Docket Number: [S.C. No. 314 of 1988]
• Date: 01 March 1990

MCGIMPSEY v. IRELAND

BETWEEN

CHRISTOPHER McGIMPSEY and MICHAEL McGIMPSEY

Plaintiffs

and

IRELAND AND OTHERS

Defendants

[1990] IESC 3

Finlay C.J.

Walsh J.

Griffin J.

Hederman J.

McCarthy J.

314/88

THE SUPREME COURT

Synopsis:

CONSTITUTION

International relations

Treaty - Validity - Anglo-Irish Agreement - Government - Functions - Sovereignty - Derogation - Agreement challenged by Irishman born in Northern Ireland - ~Locus standi~ of challenger - Presumption that plaintiff was a citizen of Ireland - Article 2 of the Constitution declares the extent of the national territory as a claim of legal right - The restriction imposed by Article 3 pending the re-integration of the national territory does not derogate from the claim, as a legal right, to the entire national territory - The provisions of article 1 of the Anglo-Irish Agreement, existing in the context of the preservation of national sovereignty by article 2(b), are not inconsistent with the provisions of Articles 2 and 3 of the Constitution - The provisions of the Agreement do not fetter the power of the Government to exercise the executive powers of the State in connection with the State's external relations - The Agreement is not a law within the meaning of Article 40, s. 1, of the Constitution and is not inconsistent with the provisions of Article 40, s. 3, sub-s. 1, of the Constitution - The Agreement does not discriminate between the two communities in Northern Ireland - Anglo-Irish Agreement, articles 1–5 - Constitution of Ireland, 1937, Articles 2, 3, 29, 40 - (314/88 - Supreme Court - 1/3/90) - [1990] 1 I.R. 110 - [1990] ILRM 441

|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 - (314/88 - Supreme Court - 1/3/90) - [1990] 1 I.R. 110

|McGimpsey v. Ireland|

PRACTICE

Parties

~Locus standi~ - Foreigner - Government - Executive power - Exercise - Validity - Challenge by foreigner - (314/88 - Supreme Court - 1/3/90) - [1990] 1 I.R. 110 - [1990] ILRM 441

|McGimpsey v. Ireland|

Citations:

ANGLO-IRISH AGREEMENT 15.11.85

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S7(1)

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S6(1)

CONSTITUTION ART 2

CONSTITUTION ART 3

CONSTITUTION ART 29

CONSTITUTION ART 28

CONSTITUTION ART 40

ANGLO-IRISH AGREEMENT ART 1

ANGLO-IRISH AGREEMENT ART 2

ANGLO-IRISH AGREEMENT ART 4

ANGLO-IRISH AGREEMENT ART 5

CRIMINAL LAW (JURISDICTION) BILL 1975, In re 1977 IR 129

BOLAND V AN TAIOSEACH 1974 IR 338

PEOPLE, AG V RUTTLEDGE (1947) 1978 IR 376

RUSSELL V FANNINIG 1988 ILRM 33

ANGLO-IRISH AGREEMENT ART 2(b)

ANGLO-IRISH AGREEMENT ART 4(c)

ANGLO-IRISH AGREEMENT ART 5(c)

CONSTITUTION ART 40.1

CONSTITUTION ART 40.3.1

CONSTITUTION ART 9.2

CAHILL V SUTTON 1980 IR 269

KOSTAN V IRELAND UNREP HIGH 10.02.78

FISHERIES (CONSOLIDATION) ACT 1959

CROTTY V AN TAOISEACH 1987 IR 713

NICOLAOU, STATE V AN BORD UACHTALA 1966 IR 567

GOVERNMENT OF IRELAND ACT 1920

ANGLO IRISH AGREEMENT ART 1(a)

ANGLO IRISH AGREEMENT ART 1(b)

ANGLO IRISH AGREEMENT ART 1(c)

SINGLE EUROPEAN ACT

1 JUDGMENT delivered on the 1st day of March 1990by FINLAY C.J. [WALSH GRIFFIN HEDERMAN CONC]

2 This is an appeal by the Plaintiffs against the dismissal on the 25th day of July 1988 by Order of the High Court made by Barrington J. of their claim for a declaration that the "Agreement between the Government of Ireland and the Government of The United Kingdon" made on the 15th November 1985 (The Anglo-Irish Agreement) is contrary to the provisions of the Constitution.

The parties

3 The Plaintiffs are two brothers, each of whom was born in Northern Ireland, and each of whom now resides in Northern Ireland.

4 In the course of his judgment Barrington J. described the political ambitions and activities of both the Plaintiffs in the followingwords:

"Both Plaintiffs are members of the Official Unionist party in 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 problem of Northern Ireland and of Ireland. Both believe that the Anglo-Irish Agreement has aggravated the problem and instead of solving the problem has become part ofit."

5 The learned trial Judge having heard the Plaintiffs in evidence was satisfied that in the expression of these opinions and in their attitude to the problems with which the case is concerned, they were both sincere. Against these findings by the learned trial Judge there is no form of appeal,nor is there any suggestion that they are otherwise than justified by the evidence which he heard.

The Plaintiffs" claim

6 The Plaintiffs" claim for a declaration that the provisions of the Anglo-Irish Agreement are contrary to the provisions of the Constitution was directed in particular to Articles 1, 2, 4 and 5 of the Agreement, and the inconsistency alleged was with Articles 2, 3, 29 and 40 of theConstitution.

The defence

7 The Defendants in their defence, apart from joining issue on the claims of the Plaintiffs, raised a special defence denying the locus standi of the Plaintiffs in the following terms:

"The Plaintiffs do not have the locus standi necessary to seek the reliefs sought in the Statement of Claim on the grounds that neither of them has any interest or right which has or will suffer any injury or prejudice by reason of any of the matters alleged in the Statement of Claim or by reason of the coming into force of the said Agreement or at all, nor has either a common interest with any other person who could claim to be or to be likely to be adversely affected thereby."

8 Amongst the submissions made on behalf of the Defendants in the Court below on foot of this plea of an absence of locus standi was that the Plaintiffs should not be permitted to invoke Article 2 of the Constitution because they themselves do not believe that "the national territory consists of the whole island of Ireland" and are only invoking the Article in a tactical manoeuvre.

9 In his judgment the learned trial Judge stated:

"Both Plaintiffs were born in Ireland and are therefore in contemplation of Irish law citizens of Ireland."

10 The statement of Claim contains no claim that either Plaintiff is a citizen of Ireland, although it is stated that the first-named Plaintiff is the holder of an Irish passport. No evidence was given by either Plaintiff that either he or either of his parents had made the prescribed declaration pursuant to Section 7(1) of the Irish Nationality and Citizenship Act 1956, or of any facts which would indicate that he was "otherwise an Irish citizen".

11 It may well be that the Plaintiffs are Irish citizens under Section 6(1) of the Act of 1956 becauseeither or both of their parents were Irish citizens at the respective dates of their births, though this was not proved.

12 Since the Defendants made no submissions to this Court on this issue and have not sought to vary the finding of the learned trial Judge to which I have referred, I will assume without deciding that each of the Plaintiffs is an Irish citizen.

13 The learned trial Judge decided this issue of locus standi in favour of the Plaintiffs in the following passage contained in his judgment:

"The present case is, to say the least, unusual and there is no exact precedent governing it, but it appears to me that the Plaintiffs are patently sincere and serious people who have raised an important constitutional issue which affects them and thousands of others on both sides of the Border. Having regard to these factors and having regard to the wording of the Preamble to the Constitution and of Articles 2 and 3, it appears to me that it would be inappropriate for this Court to refuse to listen to their complaints."

14 Against this finding the Defendants did not enter any cross-appeal or notice to vary. This Court, asit would be bound to do, raised the query as to the locus standi of the Plaintiffs and the consequent jurisdiction of this Court to determine the issues raised on the appeal. Counsel for the Defendants, upon that being raised, did not seek by any special submission or argument to vary the decision which had been reached by the learned trial Judge.

15 As a general proposition it would appear to me that one would have to entertain considerable doubt as to whether any citizen would have the locus standi to challenge the constitutional validity of an act of the Executive or of a statute of the Oireachtas for the specific and sole purpose of achieving an objective directly contrary to the purpose of the constitutional provision invoked.

16 However, having regard to the evidence in this case, to the findings of fact made by the learned trial Judge, and to the absence of any cross-appeal brought on behalf of the Defendants, I am satisfied that the Plaintiffs" claim in this case and their appeal against the dismissal of it by the High Court should be entertained on itsmerits.

The relevant constitutional provisions

17 The relevant constitutional provisions are as follows:

"Article 2

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

Article 3

19 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...