The Constitutional Rights Of Companies by Ailbhe O'Neill

• Date: 01 January 2007
• Author: Gerald Hogansc

THE CONSTITUTIONAL RIGHTS OF COMPANIES

AILBHE O’NEILL

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