The Gazette 1973

guaranteed right to choose whom he shall join in union with. This case, however, is one of contract, and there is no compulsion or coercion, and no interference with a citizen's free choice here whether he remains a mem- ber of one union or joins the other. Accordingly Article 40, Clause 6 (1) of the Constitution which guarantees the right of citizens to form unions, is no impediment to providing by contract that membership of a particular union is to be a prerequisite for a particular employ- ment. Accordingly the majority of the Supreme Court (O Dalaigh C.J., Walsh and Butler J J .) per Walsh J. allowed the appeal, and disallowed the injunction. The minority of the Court (Fitzgerald and Henchy J J .) would have enforced the perpetual injunction against the defendants granted by McLoughlin J. [Becton Dickinson & Co. Ltd. v. Lee (No. 2); Sup- reme Court; Unreported; 19 December 1972] High Court finds student has no right to vote: age qualification conditional on person being registered according to law. Mr. Justice Kenny, in a judgment delivered in the High Court in Dublin yesterday, held that David Reynolds, a twenty-year-old student, of Granitefield, Dun Laoghaire, has not got a constitutional right to vote in the General Election on FEbruary 28. He found, however, that Mr. Reynolds had succeeded in establishing that Section 5 (1) of the Electoral Act, 1963, insofar as it referred to age 21, was repugnant to the Constitution, and that Section 26 was unconstitu- tional. Apart from that, the question was of consider- able public importance and one on which there were strong views. He did not see, therefore, why Mr. Rey- nolds should not get his costs of the proceedings. He said that Mr. Reynolds had come to court to assert his constitutional rights, and people who assert their constitutional rights were to be encouraged. Mr. Reynolds, suing by his father, Arthur Reynolds, had claimed that he was entitled to vote in the General Election and at any election that might occur before April 15. He had named as defendants the Attorney- General, the Returning Officer for the Dail constituency of Dun Laoghaire and Rathdown, and the Minister for Local Government. Constitutional amendment Mr. Justice Kenny said that the President, acting on the advice of the Taoiseach, had dissolved Dail Eireann, and it had not been suggested by anybody that that was contrary to the Constitution or that there was any- thing against the law in doing that. The basis of Mr. Reynolds's claim was that he had acquired by the amendment to the Constitution the right to vote. "The short answer to the case, I think, is that he has not," said Mr. Justice Kenny. If one read Article 16 (1) 2 it would be seen that attaining the age of 18 did not of itself confer the right to vote at an election. An election could not be conducted without having a register, and the register had to contain the names of the electors so that they could be identified by the returning officer or by the presiding officer at the polling booth. The right to vote conferred by Article 16 (1) 2 was the right to vote conditional upon the person having attained the age of 18, conditional upon the person not having been disqualified, and conditional upon the per- son complying with th*> provisions of the law relating to the election of members of Dail Eireann. 57

Callaghan had committed a breach of contract, he is protected under Section 3 of the 1906 Act because he was not a party to these proceedings. A contract is not discharged by a unilateral breach, unless the other party chooses to terminate it on that ground. He concurs with Lord Denning who in Morgan v. Fry (1968) 2 Q.B. considered Rookes v. Barnard (1963) 1 Q.B. and the more recent English decisions, and concluded that the law was that, if the strike notice given is not shorter than the legal period for the termination of the con- tract itself, then it is not unlawful : if the strike (this can arise expressly or impliedly) does take place, the contract of employment is suspended during the strike, but revives when the strike is over. In this case, the contract of employment did not contain a no-strike clause. The plaintiff's contention was that it was an implied term that the workers would not take strike action in support of their claim and that it was a breach of contract to do so : this cannot be sustained. Walsh J. does not accept that, by agreeing to any particular condition, save perhaps an express strike condition, they agree not to raise a condition as to a trade dispute. The notice of strike action in this case was adequate. Fitzgerald J., in delivering one of the minority judg- ments, emphasised that the belief that a right to pro- test justified a right to picket, was unjustified. He held in the present case that the purpose of the picket was to coerce the plaintiff company to break their contract with the two unions with whom they had an agreement. This picket was consequently illegal, and an injunction had been rightfully granted by McLoughlin J. (4) Does the principle of inter-union rivalry apply? Walsh J., in the majority judgment, stated that the plaintiff contended that the real issue in dispute was simply one of the inter-union rivalry, and could not consequently be a trade dispute within the Act of 1906, and relied on Stratford v. Lindley (1965) A.G. But the dictum of Lord Pearce in that case, at page 334, is applicable here : "When a union makes a genuine claim on the employer for bargaining status with a view to regulating or improving the conditions or pay of their workmen, and the employers reject the claim, a trade dispute is in contemplation, even though no active dispute has arisen. Henchy J. in delivering the principal minority judg- ment stated that the principles enunciated by the House of Lords in Stratford v. Lindley (1965) A.G. applied fully in this case. (5) Is picketing to gain recognition unconstitutional? Walsh J., in delivering the majority judgment, held that though McLoughlin J. had held that the plaintiff company had not been guilty of any breach of the constitutional rights of the defendants because they had not exercised any coercion, it was not necessary to decide the constitutional issue in this case. It was not necessary to express an opinion on how far or in what circum- stances a person can contract out of a constitutional right. Henchy J., in delivering the principal minority judg- ment, stated that the case of Educational Co. of Ireland v. Fitzpatrick (No. 2) (1961) I.R. was not applicable here, as it decided that when workers are sought to be compelled by means of a picket regardless of their wishes, to join a particular union, such compulsion amounts to a denial of the worker's constitutionally