Re The Emergency Powers Bill, 1976

• Jurisdiction: Ireland
• Judge: O'Higgins C.J.
• Judgment Date: 01 January 1977
• Neutral Citation: 1975 WJSC-SC 914
• Date: 01 January 1977
• Court: Supreme Court

EMERGENCY POWERS BILL 1976, In Re

THE EMERGENCY POWERS BILL , 1976

1975 WJSC-SC 914

THE SUPREME COURT

1 Judgment of the Supreme Court delivered by O'Higgins C.J. on the 15th day of October 1976

I The Facts

2 On the 1st September 1976, Dáil Éireann resolved in the following terms - "That Dáil Éireann hereby resolves, pursuant to subsection (3) of section 3 of Article 28 of the Constitution ................ that, arising out of the armed conflict now taking place in Northern Ireland, a national emergency exists affecting the vital interests of the State." On the same day Seanad Éireann passed a resolution in identical terms. On the 16th September 1976, the Emergency Powers Bill, 1976, was passed by both Houses of the Oireachtas. On the 24th September 1976, the President of Ireland, pursuant to the provisions of Article 26 of the Constitution and after consultation with the Council of State, referred the Bill to this Court for a decision on the question whether the Bill or any provision or provisions thereof is or are repugnant to the Constitution or to any provision thereof. Pursuant to the provisions of Article 26 section 2 of the Constitution this Court has considered this question and has heard arguments by the Attorney General and his Counsel and by Counsel assigned by this Court.

II The Law

3 The Emergency Powers Bill, 1976, is a Bill entitled "An Act for the purpose of securing the public safety and the preservation of the State in time of an armed conflict in respect of which each of the Houses of the Oireachtas has adopted a resolution on the first day of September, 1976, pursuant to subsection (3) of section 3 of Article 28 of the Constitution."

4 The latter subsection of the Constitution reads as follows:

5 "Nothing in this Constitution shall be invoked to invalidate any law enacted by the Oireachtas which is expressed to be for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion, or to nullify any act done or purporting to be done in time of war or armed rebellion in pursuance of any such law. In this sub-section "time of war" includes a time when there is taking place an armed conflict in which the State is not a participant but in respect of which each of the Houses of the Oireachtas shall have resolved that, arising out of such armed conflict, a national emergency exists affecting the vital interests of the State and "time of war or armed rebellion" includes such time after the termination of any war, or of any such armed conflict as aforesaid, or of an armed rebellion, as may elapse until each of the Houses of the Oireachtas shall have resolved that the national emergency occasioned by such war, armed conflict, or armed rebellion has ceased to exist."

6 This subsection incorporates the First and Second Amendments of the Constitution. Subsection (3) as originally enacted by the People made no reference to an armed conflict and the subsection ended with the words "in time of war or armed rebellion in pursuance of any such law". The First Amendment incorporated the reference to an armed conflict, and the portion of the subsection as it now stands beginning with the words "in this sub-section" down to the words "the vital interests of the State" represents the total effect of the First Amendment. The rest of the subsection as it now stands represents the whole of the Second Amendment of the Constitution. A resolution of both Houses of the Oireachtas is not a condition precedent to the enactment by the Oireachtas of any law which is expressed to be for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion. It is, however, a condition precedent to the enactment of any such law in a time when there is taking place an armed conflict in which the State is not a participant that such law must be expressed to be for the purpose of securing the public safety and the preservation of the State in time of such armed conflict. This Bill is expressed to be for that purpose. The resolutions upon which the Bill is grounded are not part of the Bill, although they are referred to in its long title, and in section 3 and are not and could not be the subject of a reference to this Court under Article 26. Each resolution states that there is an armed conflict taking place in Northern Ireland and that a national emergency arising out of that armed conflict exists affecting the vital interests of the State. The only recital of fact contained in the Bill is that each of the Houses of the Oireachtas on the 1st September, 1976, adopted a resolution pursuant to subsection (3) of section 3 of Article 28 in respect of an armed conflict. The only resolutions in respect of an armed conflict adopted by the Houses of the Oireachtas on the 1st September, 1976, were those referring to an armed conflict in Northern Ireland and the Bill must therefore be confined to the armed conflict described in the resolutions.

7 As to the right of the President to refer the Bill to this Court, it is clear that he has power to do so, notwithstanding that the Bill is one passed by both Houses of the Oireachtas by reference to the provisions of subsection (3) of section 3 of Article 28. The power of the President to do so has not been questioned in these proceedings.

III The Submissions

8 It has been submitted by Counsel assigned by the Court that it should be decided that the provisions of the Bill are repugnant to the Constitution or to some of the provisions thereof and that the...