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

• Date: 01 January 2021

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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.

1 [1972] IR 241.

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.

4 [1950] 1 IR 142.