The High Court
1986 No. 12036P
Between
Raymond Crotty
Plaintiff
And
An Taoiseach and Others
Defendants

[24th December, 1986]

BARRINGTON J:

First of all I should thank counsel for the assistance which they have given to me in relation to what I have found to be an extremely difficult case. It is an application for an interlocutory injunction and I must endeavour to follow the procedure contemplated in the Campus Oil v. Minister for Industry & Energy (No.2) [1983] I.R. 88 decision in my approach to the matter. It has the complication, which is adverted to obliquely in that case, that the issues raised are constitutional issues in relation to which weight must be given to the presumption of constitutionality. But subject to that, what I have to direct my mind to is whether the plaintiff has raised a fair question of law and it appears to me to be proper, having regard to the remarks of the Chief Justice in the Campus Oil Case, to attach a greater significance to the term "fair question of law" than would be attached in private litigation because of the existence of the presumption of constitutionality in favour of an Act of Parliament and also a similar kind of presumption in favour of the executive acts of the Government. Nevertheless it appears to be a fair question and it is not a matter on which I should attempt to adjudicate at this stage and I will attempt to refrain from doing so.

Secondly, I have to consider the balance of convenience as between the parties, and in that context again the case is somewhat unusual in that one is dealing with the balance of convenience as between a private citizen and the government of the state and also one is dealing with the balance of convenience in a context in which the plaintiff is attempting to raise a constitutional issue.

The nature of the relief sought in the motion before me is quite unusual and as far as I know without precedent and it is a claim for an injunction restraining the defendants who in effect are the Government of Ireland and each of them from depositing with the Government of the Italian Republic any purported instrument of ratification of the Single European Act. Now the Single European Act, despite its name, is an international treaty which because it sought to impose a charge on public funds required to be approved by a resolution of the Dáil and I am informed that the Dáil did in fact pass such a resolution on the 11th December, 1986. The Act was then sent to the President who, I am informed, has now affixed the Seal of Ireland on it in accordance with the advice of the Government.

The plaintiff seeks, in the action, to attack the provisions of the Single European Act for reasons which I will touch on later and he also seeks to attack as unconstitutional the provisions of the European Communities (Amendment) Act, 1986, which I am informed was signed and promulgated as law by the President today.

The same plaintiff previously made an abortive application to Carroll J. At that stage he was being advised by a different solicitor and it would appear that that solicitor appeared before Carroll J. He issued a plenary summons and appeared before Carroll J. looking for leave to serve short notice. The short notice he sought was apparently to prevent the Minister proceeding with the Bill in Dáil Éireann and it would appear that Carroll J. dismissed that application. The application was clearly misconceived because it is quite clear on the authorities that the Oireachtas is free to exercise its legislative powers without interference by the Courts in the course of legislation and, just as the Courts expect independence within their own sphere, likewise, the legislature is entitled to legislate in the manner which it thinks best within its own sphere without interference by the Courts in the course of the legislative process. It appears to me on the same principle that the Government is free to formulate the external policy of the State and that is a matter vested in the Government by the Constitution and authority for those propositions in relation to the independence of the legislature and the executive, subject to the Constitution, within their own spheres is to be found in Boland v. An Taoiseach [1974] I.R. 338 and Finn v. Attorney General [1983] I.R. 154.

The plaintiff however- and this is one of the matters which makes this litigation unique in my experience- submits that the substantial process of legislation is now over. The European Communities Bill is now enacted into law and it forms part of the law of the State subject to any question as to its constitutionality. Likewise the substantive part of policy formulation of the Government associated with the adoption of the Single European Act is now over. The Act has been approved by resolution of the Dáil, has been sealed by the President and all that remains is the formal act of depositing the instrument of ratification with the Government of the Italian Republic pursuant to a procedure contemplated by article 33 of the Single European Act itself.

The background to the present case is to be found in the provisions of the Constitution of Ireland, 1937, which delineate the framework of a sovereign independent state. You have first of all Article 1 which says:-

"The Irish nation hereby affirms its inalienable, indefeasible, and sovereign right to choose its own form of Government, to determine its relations with other nations, and to develop its life, political, economic and cultural, in accordance with its own genius and traditions. "

Then you have Article 6 which says that:-

"All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good."

You have Article 15 which deals with the law-making or legislative power of the State and Article 15, s. 2, sub-s. 1 says:-

"The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State."

Then it goes on to deal with subordinate legislatures which are not relevant for the purposes of this particular judgment. Then you have Article 28, s. 2 which vests the executive power of the State in the Government and then you have Article 29, s. 4, sub-s. 1 which says:-

"The executive power of the State in or in connection with its external relations shall in accordance with Article 28 of this Constitution be exercised by or on the authority of the Government. "

And we now know that, since the Republic of Ireland Act, 1948, the President exercises those powers by or on the authority of the Government in cases where the Government advises him.

Article 29 of the Constitution also deals with international agreements. In sub-s. 1 of s. 5 it provides that "Every international agreement to which the State becomes a party shall be laid before Dáil Éireann " and in sub-s; 2 "The State shall not be bound by any international agreement involving a charge upon public funds unless the terms of the agreement have been approved by Dáil Éireann. " And then in s. 6 it provides "No international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas. "

And that is the general framework of the institutions of a sovereign, independent, constitutional and democratic state. A particular problem arose in 1972 at the time when Ireland was proposing to joint the European Economic Community and that was whether the Oireachtas had power to make an international agreement part of the domestic law of the State. That was a matter for the Oireachtas only, but it was questioned as to whether the Oireachtas had power to delegate law-making functions administrative, legislative, executive and judicial functions to supranational authorities and for that reason it became necessary to pass the Third Amendment to the Constitution which provides that:-

"The State may become a member of the European Coal and Steel Community (established by Treaty signed at Paris on the 18th day of April, 1951), the European Economic Community (established by Treaty signed at Rome on the 25th day of March, 1957) and the European Atomic Energy Community (established by Treaty signed at Rome on the 25th day of March, 1957). No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State necessitated by the obligations of membership of the Communities or prevents laws enacted, acts done or measures adopted by the Communities, or institutions thereof, from having the force of law in the State."

And the significance of that second sentence of the Amendment was that the Constitution could not now be invoked to invalidate; any measure which the State was directed by the institutions of the EEC to take arising out of the exercise of their powers, nor to invalidate any regulation or any decision of the European Court which had direct effect within this State by virtue of the provisions of the Treaties. And that, therefore, was a very far-reaching amendment to the provisions of the Constitution.

Now the Single European Act is of course an international treaty and under the provisions of article 33 the Act must be:-

" ...ratified by the High Contracting Parties in accordance with their respective constitutional requirements. The instrument of ratification will be deposited with the Government of the Italian Republic. This Act will enter into force on the first day of the month following that in which the instrument of ratification is deposited of the last Signatory State to fulfil that formality."

That provision, as Mr. Callan for the plaintiff has pointed out, concerning the form whereby an international treaty becomes part of international law, on deposit with a particular nominated authority, conforms in general principle with the provisions of article 15 of the Vienna Convention on the Law of Treaties to which this State is not a party but which appears to attempt to codify the general provisions of customary international law. It is therefore an instrument to which international authorities would pay respect and it provides that the consent of a State to be bound by a treaty is expressed by accession when:-

"(a) the treaty provides that such consent may be expressed by that State by means of accession;
(b) it is otherwise established that the negotiating States were agreed that such consent may be expressed by that State by means of accession ;
(c) or all the parties have subsequently agreed that such consent may be expressed by that State by means of accession."

And then article 16 refers to the exchange or deposit of instruments of ratification:-

"Unless the treaty otherwise provides, instruments of ratification, acceptance, approval or accession establish the consent of a State to be bound by a treaty upon:
(a) their exchange between the contracting States; 
(b) their deposit with the depositary; or
(c) their notification to the contracting States or to the depositary, if so agreed."

But in fact it does not appear to be necessary to fall back on that provision because, as I said, there is a special arrangement for deposit indicated by the Single European Act itself.

Now, as I indicated, to join the European Communities, it was necessary for this State to have first of all the Third Amendment to the Constitution: secondly, to have a treaty of accession to the Communities, and thirdly, to have the European Communities Act, 1972. That Act contains a definition which may be of some significance for the purposes of these proceedings because it says in the definition section of the Act of 1972 that "the treaties governing the European Communities means" and it then sets them out: the EEC, the Euratom Treaty and all the other treaties governing the Communities.

To achieve the present proposed change we have now the Single European Act, which is the international treaty, and we have the European Communities (Amendment) Act, 1986, but there is no provision for amending the Constitution because in the view of the Government, apparently, such provision is not necessary. So that, so far as the bringing into force of the proposed changes of the European Communities in the Constitution, so far as this State is concerned, only two administrative procedures remain: one being the deposit of the instrument of ratifiaction with the Government of the Italian Republic, and the other the making of an order under s. 3, sub-s. 3 of the new European Communities (Amendment) Act, 1986, bringing that Act into force. When that is done the phrase in the Act of 1972, "the treaties governing the European Communities", will be expanded to include certain provisions of the Single European Act set out in the new Act so that, in effect, the operative provisions of the Single European Act will become part of the governing treaties of the European Communities.

Now it appears to me that there is no doubt that the Single European Act does attempt to amend and to supplement the treaties establishing the European Communities and indeed it so says on its face. At the same time it is also clear that the Treaty of Rome itself at article 236 contemplated that the Treaty could be amended and it reads:-

"The Government of any Member State or the Commission may submit to the Council proposals for the amendment of this Treaty.
If the Council, after consulting the Assembly and, where appropriate, the Commission, delivers an opinion in favour of calling a conference of representatives of the Governments of the Member States, the conference shall be convened by the President of the Council for the purpose of determining by common accord the amendments to be made to this Treaty.
The amendments shall enter into force after being ratified by all the Member States in accordance with their respective constitutional requirements. "

Therefore it appears that while amendments of the Treaty of Rome are contemplated by the Treaty itself, the amendments when they come into effect or when they are debated are the independent acts of the Member States and if accepted by them are an addition to or an amendment of the Treaties. It follows, as I previously indicated, that once the act of ratification of the Single European Act has been deposited with the Government of the Italian Republic and the order made in accordance with the European Communities (Amendment) Act, 1986, bringing that Act into operation, then the Single European Act becomes one of the governing treaties of the European Communities, and thereupon it would appear, under the provisions of the Third Amendment to the Constitution, that no provision of the Constitution "invalidates laws enacted, acts done or measures adopted by the State necessitated by the obligations of membership of the Communities or prevents laws enacted, acts done or measures adopted by the Communities, or institutions thereof, from having the force of law in the State." In other words, once all the pieces of the jigsaw puzzle are in place, it would appear to follow that the obligation to observe the provisions of the Single European Act would be one of the obligations of membership of the European Communities and would have validity within the jurisdiction of this country in the domestic law of this country by virtue of the provisions of the Third Amendment to the Constitution.

One of the major points at issue between the parties is that while such provisions would be necessitated by the obligations of membership once the amendment to the Treaties has been made, at the present time when the amendment is still a proposed amendment by way of change or addition to the Treaty of Rome it cannot be said to be "necessitated" by the provisions of the Treaty of Rome and therefore, at this point in time, the plaintiff submits it is open to constitutional challenge by him although it might not be open to constitutional challenge by him at a later stage. Now the respective contentions of the parties on this matter have been that Mr. Fitzsimons for the defendants on the one hand has submitted that what the Single European Act does is merely to tidy up the administrative procedures of the Communities within the ambit of the original Treaties. Mr. Callan on the other hand submits that the effects are much more far-reaching. For instance he submits that the Single European Act contemplates the establishment of a new court within the EEC with powers presently undefined, although he has to admit that such a court, if established, would in fact be subordinate to the present Court of Justice of the European Communities which, in relation to the new court, would act as a court of appeal. He also submits that the Single European Act contains new provisions dealing with the health of workers, a matter on which the original Treaty of Rome was silent, in the sense that there was no specific reference to that matter in it, and he says that this being an extension of the law-making powers of the institutions of the EEC is necessarily a diminution of the sole and exclusive law-making powers of the Oireachtas referred to in Article 15 of the Constitution. Likewise he says the Single European Act contemplates the waiver of certain existing provisions requiring unanimity among Member States and substitutes in their place different forms of majority decision whether weighted or otherwise and these matters are referred to in a schedule to a memorandum which was prepared apparently for the Foreign Affairs Committee of the British Parliament and which is conceded by both parties accurately to set out the contemplated changes.

The plaintiff submits that the result would be to give to the European institutions increased law-making powers over and above those contemplated in 1972 at the time of the referendum and thereby to encroach upon the sole law-making powers of the Oireachtas under Article 15 of the Constitution. It appears to me that, on this question, the plaintiff has raised a fair issue for a court to decide.

Great stress has been laid in the course of the case on the San Michele Case (Cases 9/65 and 58/65) [1967] E.C.R. 1 being a decision of the Court of Justice of the European Communities. That decision appears to contemplate that once a treaty has been formally ratified by a Member State, by the formal deposit of the instrument of ratification, the European Court in exercising its jurisdiction will not go behind that ratification and the Court says in its judgment at p. 29:-

"Whereas, however, the Court of Justice, as the institution entrusted with ensuring that in the interpretation and application of the Treaty the law is observed, can only take into consideration the instrument of ratification, which itself was deposited on behalf of Italy on 22 July 1952 and which, together with the other instruments of ratification, brought the treaty into force. Whereas it is clear from the instruments of ratification, whereby the Member States bound themselves in an identical manner, that all States have adhered to the Treaty on the same conditions, definitively and without any reservation other than those set out in the supplementary protocols, and that therefore any claim by a national of a Member State questioning such adherence would be contrary to the system of Community law."

Now in that context Mr. Callan has raised this submission, that if the instrument of ratification of the Single European Act is deposited with the European Court then he will have lost any status he might otherwise have in relation to attacking the validity of the Single European Act and that thereafter the institutions of the European Communities will be entitled, within the sphere of their jurisdiction- increased he suggests by the provisions of the Act- to make regulations and legal decisions which will be effective within the domestic law of this country and against which the Constitution cannot be invoked.

The contrary submission put forward by Mr. Fitzsimons is that if Mr. Callan- whatever his status before the European Court- pursues his present substantive application and establishes to the satisfaction of the court which finally hears the action that the European Communities Act or the Single European Act in fact violates the Constitution of Ireland, that the Government of Ireland would then be obliged in accordance with the provisions of this jurisdiction to abrogate so far as may be necessary the provisions under the European Treaties. It appears to me on that matter also the plaintiff has raised a fair and substantial point of law.

A strong attack has been made on the plaintiff on the basis that he has no locus standi so far as these proceedings are concerned and Mr. Fitzsimons relied upon the provisions of Cahill v. Sutton [1980] I.R. 269 and this is a matter to which, needless to say, I have to give very serious regard. I think it is however important to remember that Cahill v. Sutton dealt with private litigation and was a case where the plaintiff in the action was attempting to set up rights of a third party in order to avail of an alleged defect in the law so as to have it declared invalid and thereby to say there was no law and that therefore the plaintiff was entitled not to be adversely affected by it. In other words the plaintiff was attempting to set up for her own private purposes the rights of a third party and the Supreme Court refused to allow the plaintiff to do that. However, in the course of his judgment in the case Henchy J. made some remarks to which I must pay very careful attention. He says, and Mr. Fitzsimons quoted the passage, at p.284:-

"There is also the hazard that, if the Courts were to accord citizens unrestricted access, regardless of qualification, for the purpose of getting legislative provisions invalidated on constitutional grounds, this important jurisdiction would be subject to abuse. For the litigious person, the crank, the obstructionist, the meddlesome, the perverse, the officious man of straw and many others, the temptation to litigate the constitutionality of a law, rather than to observe it, would prove irresistible on occasion."

He also refers to the danger that people who have lost their debate with the public or with the parliament might as a final analysis bring the fight into the Courts and he says that this would be an undesirable development if it should take place.

Now this is the matter to which I have to give very careful consideration. There is no doubt that the present issue raised in these proceedings is a controversial political issue but it appears to me also that, right from the start, it has been an issue dealing with the powers of the Government and with constitutional rights which are matters of law and in which a responsible citizen- be his attitude to them right or wrong- could take a legitimate interest and that, in so much as it is a matter which affects the whole constitutional and political structure of the society in which he lives, it is a matter in which the individual citizen might have a legitimate interest which might be accepted in a court of law. But I think it important to refer in more detail to what Henchy J. said in that case because he goes on to say (at pp. 284/5):-

"The Constitution has given Parliament the sole and exclusive power of making laws. The Courts normally accord those laws the presumption of having been made with due observance of constitutional requirements. If a citizen comes forward in court with a claim that a particular law has been enacted in disregard of a constitutional requirement, he has little reason to complain if in the normal course of things he is required, as a condition of invoking the court's jurisdiction to strike down the law for having been unconstitutionally made (with all the dire consequences that may on occasion result from the vacuum created by such a decision), to show that the impact of the impugned law on his personal situation discloses an injury or prejudice which he has either suffered or is in imminent danger of suffering.
This rule, however, being but a rule of practice must, like all such rules, be subject to expansion, exception or qualification when the justice of the case so requires. Since the paramount consideration in the exercise of the jurisdiction of the Courts to review legislation in the light of the Constitution is to ensure that persons entitled to the benefit of a constitutional right will not be prejudiced through being wrongfully deprived of it, there will be cases where the want of the normal locus standi on the part of the person questioning the constitutionality of the statute may be overlooked if, in the circumstances of the case, there is a transcendent need to assert against the statute the constitutional provision that has been invoked. For example, while the challenger may lack the personal standing normally required, those prejudicially affected by the impugned statute may not be in a position to assert adequately, or in time, their constitutional rights. In such a case the court might decide to ignore the want of normal personal standing on the part of the litigant before it. Likewise, the absence of a prejudice or injury peculiar to the challenger might be overlooked, in the discretion of the court, if the impugned provision is directed at or operable against a grouping which includes the challenger, or with whom the challenger may be said to have a common interest- particularly in cases where, because of the nature of the subject matter, it is difficult to segregate those affected from those not affected by the challenged provision.
However, those examples of possible exceptions to the rule should not be taken as indicating where the limits of the rule are to be drawn. It is undesirable to go further than to say that the stated rule of personal standing may be waived or relaxed if, in the particular circumstances of a case, the court finds that there are weighty countervailing considerations justifying a departure from the rule."

It does appear to me, assuming the plaintiff were otherwise devoid of constitutional standing, that he has raised matters which are common to him and to other citizens and which are weighty countervailing considerations which would justify, on their own, a departure from the rule in relation to locus standi. But it does appear to me that in relation to one matter- and it is a basic matter- the plaintiff clearly has a locus standi because his contention is that what is being done involves an amendment to the Constitution which should be submitted to a referendum, and that he, as a citizen, has the right to be consulted in such a referendum and that his right is being infringed. He may be correct in making that submission or he may not but it appears to me that it is a serious and important issue and that he has the locus standi to raise that particular issue.

It is contended that the present application is an abuse of the process of the court. However, I am satisfied that what happened was that the plaintiff, when another solicitor was acting for him, applied to Carroll J. for leave to serve short notice of motion to prevent the Minister placing the matter for consideration before the Oireachtas. It is quite clear that that application met with short shrift, and rightly so, from Carroll J. I think it proper to remark also that when Mr. Callan first made his interim application he informed me that that application had been made and conceded that the application was ill thought out and should not have been made. The application now being made by Mr. Callan and his present team is a much more sophisticated one and it appears to me that he has advanced cogent reasons for making this application at this time and in this way and that it could not properly be referred to as an abuse of the process of the court. 

Secondly, and this has caused me some concern, so much so that I checked on the matter myself, it has been suggested that the plaintiff was forum shopping because having failed in his application before Carroll J. he shopped around for a different judge. If that were true I think it would be a reason for refusing him relief now. But I am satisfied from enquiries at the Central Office that in fact the plaintiff or his solicitor sought to make the application before the judge who was on duty, who was MacKenzie J., but that MacKenzie J. was ill at the time and therefore he had to make the application before another judge. Apparently Carroll J. was not available either and ultimately the plaintiff’s legal advisers succeeded in tracking me down and while I might prefer, having regard to the complexity of the matter, that they had found a different judge, I do not think that I can fault them for the course of conduct they followed.

Next I come to the question of the balance of convenience. On the one hand you have the right of one private citizen who has raised a fair and substantial question touching his constitutional rights. Against him it is said that this present application is not necessary because he can achieve the same result by proceeding with his substantive constitutional action and if he is right at the end of the day, he will be entitled to relief. But in that context one has the other puzzling question which Mr. Callan has raised in the light of the decision in San Michele (Cases 9/65 and 58/65) [1967] E.C.R. 1, to the effect that, once the instrument of ratification is deposited, a new jurisdiction will be assumed on a supranational level by the institutions of the Communities and that their jurisdiction will be entitled to effect within the domestic law of this country, and that, putting the matter at its easiest or at its least damaging from the plaintiff's point of view, one would have a situation where potentially there was a conflict of jurisdiction between the institutions of the European Communities and the domestic courts of this country. It appears that that is a matter on which Mr. Callan has raised a fair question and which is relevant also in the context of the balance of convenience because it would appear that while the Government could, in the event of the courts ultimately holding that the steps already taken were unconstitutional, attempt to retract from its international commitments, the embarrassment certainly to the State would be considerable and indeed it is arguable that we would be entering on a sea of litigation which is uncharted
so far as the knowledge of this particular court goes.

Against those difficulties with which the plaintiff is confronted, there is the serious embarrassment which would be caused to the Government if it is unable to lodge the instrument of ratification before the end of this month and that clearly is a serious matter to which weight must be given but I think it is also relevant, in that context, to note that article 33 of the Single European Act itself contemplates that the Act is to be "ratified by the High Contracting Parties in accordance with their respective constitutional requirements." The plaintiff has raised a question as to the constitutional requirements in this country and it appears to me that that is a matter which this court must take seriously and, on balance, that that matter has been raised in this court at a time when the various changes are not yet binding on the State and that this court must in pursuance of its general duties under the Constitution allow a constitutional issue to be raised and allow the status quo to be preserved pending its resolution. So I think the balance of convenience is in favour of granting the injunction rather than refusing it. In that context of course I have also had to consider, as I previously indicated, that there is a constitutional presumption in favour of the Act of 1986 and I am prepared to accept for the purposes of this application that the Executive is also entitled to a similar kind of respect in relation to its executive functions and furthermore that the court must proceed on the basis of a presumption in favour of the correct exercise of executive powers, which presumption is strengthened because a resolution of Dáil Éireann has been passed. Needless to say, I have found these matters very troublesome but it appears to me that even despite those presumptions I still must reach the conclusion that at this early stage the plaintiff has raised an issue of such substance and importance as to warrant preserving the status quo until the issue has been resolved in these courts.

I accordingly will grant the interlocutory injunction sought by the plaintiff.