Reappraising Byrne v Ireland: on why Ireland is a Sovereign State

Pagespp 116 - 144
Published date12 July 2022
Date12 July 2022
116
Reappraising Byrne v Ireland: on why Ireland is a
Sovereign State
DARRAGH CALDWELL*
1. Introduction
‘e State’ is used 79 times in the Constitution of Ireland (‘Constitution’).
Arguably, the State is the Constitution’s central concept. Notwithstanding its
centrality, the Constitution does not dene the State, nor is it expressly delineated
in relation to the People of Éire (‘the People’) or the nation. e only articles
that directly tell us anything about the State are Articles 4 and 5. Article 4 states,
‘e name of the State is Éire, or, in the English language, Ireland’. Article 5 states,
‘Ireland is a sovereign, independent, democratic state’.
e declaration of sovereignty contained in Article 5 is not expressly qualied.
For that reason, one may be forgiven for assuming that the State is sovereign and
therefore that it is not subject to law. However, 50 years ago in Kathleen Byrne
v Ireland and the Attorney General1 (‘Byrne’), the Supreme Court held that this
declaration is implicitly qualied by other articles of the Constitution. In particular,
the Court determined that the fundamental rights provisions of the Constitution
place the State under legal obligations. Since having obligations is incompatible
with sovereignty, the Court held that Article 5 should be interpreted to mean only
that the State is ‘externally sovereign’, ie sovereign only in relation to actions taken
on the international plane. e State is not sovereign internally and therefore is
not above, but subject to, the laws of Ireland. It is primarily for this reason that in
Byrne the Court held that the State is not immune from suit.2 As a result, ‘Ireland’
has been added as a defendant to numerous proceedings, including cases that are
constitutionally important.3
* B.C.L (UCD), LL.M. (UCL), S olicitor. e author would like to thank Caoimhín O’Madagáin
and Ciarán O’Rourke BL for their invaluable comments on a previous dra of this article. Any
views or opinions expressed in this article are the personal views and opinions of the author.
2 Secondarily, the Court held that the Crown prerogative of immunity from suit did not
survive the constitution of Saorstát Éireann. is article is not concerned with whether
Crown prerogatives survived the constitution of Saorstát Éireann, but only with the
Supreme Court’s primary nding that Ireland is not internally sovereign. If the Supreme
Court had not so found, the issue of the status of the Crown prerogative would have been
moot. Many commentators view the decision in Byrne only through the lens of the Crown
prerogative of immunity from suit. See e.g. Niall Osborough, ‘e Demise of the State’s
Immunity in Tort’ (1973) 8 Irish Jurist (NS) 275.
3 See e.g. Webb v Ireland [1987] IESC 2, [1988] IR 353; Crotty v An Taoiseach and Others [1987]
IESC 4, [1987] IR 713; Pringle v the Government of Ireland and Others [2012] IESC 47, [2013] 3
IR 1; Bederev v Ireland [2016] IESC 34, [2016] 3 IR 1.
Reappraising Byrne v Irel and: on why Ireland is a Sovereign State 117
Kingsmill Moore J had laid the groundwork for Byrne 20 years earlier with his
judgment in Michael Comyn v the Attorney General4 (‘Comyn’), where he held that
the State contemplated by the Constitution was a juristic (legal) person capable of
owning property. In holding that the State was a legal person, Kingsmill Moore J
implicitly held that the State was subject to law, and therefore, was not sovereign.
is article argues that on a proper interpretation of Article 5, the State is
unqualiedly sovereign. Properly construed, the other articles of the Constitution
do not imply that the declaration of sovereignty in Article 5 should be qualied.
In particular, the fundamental rights provisions do not place the State under legal
obligations. Rather, they place the institutions of government (organs of State)
created by the Constitution under obligations. Being sovereign, the State is not
subject to the law and is not amenable to suit before its own courts. Relatedly, it is
argued that the State is not a legal person, was not created by the Constitution and
is synonymous with the sovereign authority, the People.
Section 2 introduces the concepts of the state and sovereignty as those concepts
are understood in legal and political philosophy. Sections 3 and 4 summarise the
judgments in Comyn and Byrne respectively. Section 5 argues that the reasoning
adopted in each of Comyn and Byrne is unconvincing and that the State is sovereign.
Section 6 attempts to explain what led the Court to error in Byrne. Section 7
provides some concluding comments.
2. e concepts of the state and sovereignty
e scope of this article is narrow. Its focus is on whether Comyn and Byrne provide
a coherent interpretation of the Constitution as a legal text. is article is not
primarily concerned with whether Comyn and Byrne provide an interpretation of
the State that coheres with the philosophical concepts of ‘the state’ and ‘sovereignty’.
However, a basic understanding of those concepts and their interrelationship will
serve as a useful framework within which to analyse the judgments in Comyn and
Byrne. To the extent that the judgments do not provide good, coherent, reasons
to depart from the concepts as they are understood in theory, it is submitted that
the terms should be interpreted in line with how they are understood in legal and
political theory. erefore, seven propositions are set out below, each of which is
assumed for the purposes of this article. ey will provide context and clarity to the
analysis that follows. e propositions are heavily informed by the work of Martin
Loughlin, Professor of Public Law at the London School of Economics.

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