The Gazette 1971

unlikely that a referendum as to whether the people will approve of a particular Bill or not will ever be held. The procedure under Article 27 is primarily optional in-as-much as the President need not accede to the joint petition signed by the requisite thirty-one Senators and forty-nine Deputies to have a Bill which has been passed by the Oireachtas submitted to the people in order that they may decide whether in fact they approve of it or not. This whole procedure seems unduly restric- tive and is further complicated by the fact that, even if the proposal for a referendum does receive the approval of the President, nevertheless the referendum need not be held for a period of eighteen months after the Presi- dent's decision, because the Government has an option of avoiding the referendum provided it arranges to have a resolution passed by the Dáil postponing the opera- tion of such a Bill until an intervening dissolution has taken place and that the same Bill is subsequently passed by the newly-elected Houses of the Oireachtas. Even if a referendum were actually held, as a result of the President acceding to the joint Petition of the Houses of the Oireachtas, the extraordinary rule prevails under Article 47 that if only one vote less than one-third of the total electorate is passed, then, even if more than 90 per cent of those voting do in fact reject the pro- posals in the Bill, nevertheless, the Bill will be deemed to have been approved. Furthermore, the President can also avoid the referendum by referring the Bill as to its constitutionality to the Supreme Court under Article 26 of the Constitution. Thus, unless Article 27 is amended, it is most unlikely that such a referendum will ever be held. It would seem essential that if the requisite joint petition is signed by the required responsible majority, the President should accede to it automatically. In such an event the referendum should be held without the option of a Dáil dissolution and the subsequent re- enactment of the Bill by the new legislature. Further- more, the Bill should be deemed to have been rejected if a majority vote against it, regardless of the percentage of voters on the total electoral register. Furthermore, the initiative procedure should be availed of, if, as an alternative, the petition were signed by say 50,000 elec- ors as in Switzerland which is the foremost referendal democracy in the world; this would ensure that the electorate could compel the Government to initiate some draft legislation which the people wished to see enacted as law. Article 25, Section 4, Subsection 6 This subsection was passed in a state of exhilarated nationalistic enthusiasm. It states : "In case of conflict between the texts of a law enrolled under this section in both the official languages, the text in the national (Irish) language is to prevail." It will be appreciated that most Judges are not experts in the Irish language and Professor Kelly has pointed out some inconsistencies between the two texts. In view of our forthcoming entry- into the European Community, it would seem to be wiser to omit this subsection and to allow Judges to construe the Constitution in whichever official language suited them best. A commission should be set up to ensure that there is no conflict between the two texts. Article 28, New Section 13 Professor Carleton Allen has stated that bureaucracy is the rule of a small oligarchy of higher civil servants who are avowedly acting in the national interest. Conse- quently, their actions have tended to be hidden under a veil of anonymitv in which thev are too prone to claim privilege for unimportant documents written bv them- selves or their Minister, whenever these are produced in

Court. It is satisfactory to note that improvements are about to be made to counteract these unsatisfactory claims of privilege, it would seem that an amendment along these lines would be called for: "If, on a plea of national interest, Ministers fail or refuse to disclose information or to hear well-founded grievances, the complainant may bring before the High Court any such action by the Minister for a decision as to whether it is well founded or not. The Minister concerned must submit all documentary evidence in his possession with- out exception in this matter to the High Court who shall determine whether any, and if so, how much, of this documentary evidence is to be disclosed to the complainant. If the High Court finds that the action of the Minister is unjust or unwarranted the Court will take all necessary steps it considers just to ensure that the complainant will be awarded suitable monetary compensation." The decision of the Supreme Court in O'Leary v Minister for Industry and Commerce (1966; I.R., 688) allowing discovery of documents against the Minister is most satisfactory as evidencing a new trend. Limitations of privilege The necessity for this amendment is now reinforced by the unanimous judgement of the House of Lords in Conway v Rimmer (1968; A.C. 910). Lord Reid declared that it was universally recognised hat there were two kinds of public interest: (Í) the public interest that harm should not be done to the nation by disclosure of certain documents, and (2) the public interest thatt he administration of justice should not be frustrated by withholding them. When the possible injury to the nation was so grave that no other interest, public or private, could be allowed to prevail over it, it would be proper to say, as Lord Simon had said in Duncan v Cammel Laird and Co. (1942; A.C., 624) that, to order production, could put the State interest in jeopardy. But, in many other cases, where the possible injury to the public service was much less, it would be proper to balance the interests involved. The Attorney-General had made it clear that, in the case of the large public corporations, Grown privilege could not be invoked to prevent disclosure of similar documents made by them. It was thus difficult to see why it should be necessary to withhold whole classes of routine communications with or without a public depart- ment but unnecessary in the case of a public corporation. The question that arose was that, if the Court had the right to question the finality of a Minister's certi- ficate, how and in what circumstances was it to be effective ? It is satisfactory to note that Mr. Justice Kenny, in the unreported case of Murphy v Minister for Local Government (16th December 1970) stated specifically that he approved of the decision of the House of Lords in Conway v Rimmer, but unfortunately he declined to follow it in that case. In the case of a Minister's view on the contents of a particular document, it might be possible to separate those parts, disclosure of which would be innocuous, from those which ought not be made public. The Minis- ter's certificate, however, might also be given because the documents belonged to a class which ought to be withheld. It was, therefore, proposed for decision that the Courts had and were entitled to exercise a power and duty between these two public interests, by exam- ining each document submitted by the Minister separ- ately, and deciding whether it should be disclosed.

Furthermore the House of Lords has held, in Padfield v Minister for Agriculture (1968) A.C., 997, that,

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