The Constitutional Rights Of Companies by Ailbhe O'Neill

Date01 January 2007
AuthorGerald Hogansc
Thomson Round Hall (2007). xii and 292 pp (i165)
ISBN 978–1–85800–459–4
Gerald Hogan SC
As, perhaps, is fitting in the 70th anniversary of the Constitution, the last
few years have witnessed the publication of specialized monographs on
discrete aspects of constitutional law. Dr O’Neill’s excellent book thus
follows Doyle’s Constitutional Equality Law and Costello’s Law of Habeas
Corpus in Ireland. But while the topics of equality and Article 40/habeas
corpus have generated a vast body of case law, the same cannot (yet at least)
be said of the interaction of constitutional law and company law.
As the author notes in her introduction, prior to the judgment of Keane
J in Iarnrod Eireann v Ireland [1996] 3 IR 321, no judge had really come to
terms directly with the question of whether companies had constitutional
rights as such. In much of the previous case law in which the issue arose, the
courts had either adopted the intellectually lazy stratagem of permitting
shareholders to sue or tacitly assumed that companies (and other legal
persons) had constitutional rights or (as in National Union of Railwaymen
v Sullivan [1947] IR 47 and Quinn’s Supermarket v Attorney General
[1972] IR 1) just ignored the question. As Donal O’Donnell SC points out
in his prescient foreword, much of this is attributable “to the hidebound
view that problems come already labelled like an undergraduate exami-
nation, as company law or tort or contract issues.” Another explanation
may be that much of the constitutional law from that (relatively) early
period stemmed from the inventive arguments of counsel who happened to
be steeped in the tradition of individual civil liberties and for whom the idea
of constitutional rights attaching to companies (or indeed other legal
persons) seemed downright unreal.
Of course, even if one accepts that legal persons may enjoy such rights,
many would nonetheless assume that there are certain rights which
corporate bodies could not enjoy or assert. The guarantee of freedom of
religion in Article 44 seems an obvious example, but a decision which came
to hand after this book was written – Fitzpatrick v FK [2006] IEHC 392
shows that even this proposition is not necessarily correct. In this case the
Watch Tower Bible and Tract Society Ltd. (the legal body which represents
Jehovah’s Witnesses) sought to be joined in several capacities to proceedings
which had commenced following an emergency ex parte High Court
application which had been brought by a hospital to authorise the

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