The Gazette 1972

EDITORIAL

Constitutional Implications of the Third

Amendment Bill

The Third Amendment to the Constitution Bill enables

the State to accede to the Treaties relating to (1) The

European Economic Community; (2) The European

Coal and Steel Community; and (3) The European

Atomic Energy Committee. This is in the form of an

additional sub-section to Article 29, which relates to

international relations. The final sentence of the amend-

ment reads : "No provisions of this Constitution invali-

dates laws enacted, acts done or measures adopted by

the State necessitated by the obligations of membership

of the Communities, or institutions thereof, from having

the force of the law in the State."

It was already pointed out in the January

Gazette

that it was unwise to substitute a wide omnibus amend-

ment to replace specific amendments relating for in-

stance to the powers of the Oireachtas and of the

Supreme Court. It was also stressed that fundamental

rights should be specifically protected. This appears to

be reinforced bv the Irish version of Article 46 of the

Constitution, which suggests that the Constitution can

be amended only disjunctively, either by variation or

bv addition, or by repeal in respect of each amendment.

The First Amendment to the Constitution Act, 1939,

which was specifically passed to protect our status of

neutrality in time of war, specifically amended the

definition of "time of war". In the Schedule to the

Second Amendment to the Constitution Act, 1941, each

deletion or variation was specifically referred to by

reference number. It is difficult to see why these prece-

dents were not adhered to in this instance as it is quite

clear that by way of a simple explanatory memorandum

the average voter would be in a position to grasp the

effect of each separate amendment. An interpretation

by the Supreme Court would appear to be desirable

particularly as the issue has never been ruled on.

It is known that, by virtue of Article 235 of the

Treaty of Rome, the Council of Ministers are given

the right to enact any legislation necessary to achieve

the aim of economic harmony under the Treaty. It may

be thought that no legislation detrimental to Irish

interests could be passed, in view of the fact that the

Ministers have to be unanimous, but it is well known

that pressures can be brought against recalcitrant Minis-

ters. Whether one is a protagonist or an antagonist of

the Community, constitutional propriety demands that

each amendment necessary to enable us to enter the

Community should be clearly and unequivocally spelled

out.

Legal Protection of Detainees

The absolute independence of the Judiciary in Northern

Ireland has been amply demonstrated recently. Not

only has Judge Conaghan awarded the maximum

amount within his jurisdiction to a detainee for brutal

ill-treatment by the authorities, but also the Northern

Court of Appeal in (

)

Hume v Attorney-General

has

unanimously found a vital regulation unconstitutional.

There it was held that the British Army as "security

forces" could not legally be included in the term "Com-

missioned officers of Her Majesty's Forces" in Regula-

tion 38 (1) issued under the Civil Authorities (Special

Powers) Acts which authorise the police to quell a

riotous assembly on the ground that the Regulation

infringed the Government of Ireland Act, 1920, as that

Act gave no power to the Northern Ireland Parliament

to make anv regulations concerning the British Army.

The effect of this judgment was that John Hume and

others had been improperly convicted of riotous assem-

bly in Derry and that their convictions were subse-

quently quashed.

However, by having the Northern

Ireland

Act, 1972, passed in a few hours, the British Govern-

ment tried to set at naught the effect of this judgment.

As Mr. Boyle has shown, it is doubtful whether this

legislation is valid, particularly as it purported to

amend the Government of Ireland Act, 1920. Professor

Pallev has shown the enormous powers wfiich the Stor-

mont Parliament now possesses over the British Army-

Let us hope that this outrageous legislation will also

be found invalid soon.

Note

—This Editorial was written before Mr. Heath

announced the imposition of direct rule upon Northern

Ireland on March 24th.