80 / 196
even if a Minister had full and unfettered discretion
under the Act, he was bound to exercise it lawfully,
i.e. not to misdirect himself in law, nor to take into
account irrelevant matters, nor to omit relevant matters
from consideration. If a complaint against a Minister
was substantial and genuine, the reasons of the Minister
for not referring the matter to the statutory Committee
of Investigation—such as—that the complaint raised
wide issues—and that his discretion was unfettered—
were
not
good reasons in law, and showed that he was
not exercising his discretion properly. The fact that a
Minister gave no reasons for his decision as to whether
he should exercise a statutory discretion would not pre-
vent the Court from reaching a conclusion granting
certiorari
or
mandamus
against a Minister in a proper
case. These recent decisions tend to show that the
House of Lords now fully appreciates that these diffi-
culties have to be overcome.
In
The Sunday Independent
of 10th March 1968
Professor Kelly has propounded the theory that, apart
from the official text of the Constitution, there is also
a second nefarious "hidden Constitution", by which
Ministers and civil servants are henceforth granted
powers of decision as regards for instance town plan-
ning and social welfare, which were formerly confided
to Judges or to independent bodies; this naturally leaves
the administrators open to unworthy suspicions. While
it would be admirable to have an independent judicial
body similar to for instance the Land Commission to
examine applications relating to town planning, it might
not, it is suggested, be always practical to appoint Jud-
ges to supervise such bodies, as for instance many of
the more important cases in the Supreme Court require
to be determined by no less than five Judges; but it
might be deemed more practical to appoint, for instance,
an experienced senior counsel as full-time chairman of
such a body. It would then follow that if a Minister or
civil servant were shown to have reached a decision as
a result of some dubious procedure, a Judge or tribunal
would not normally hesitate to reverse such a decision
and to grant a declaration which would have the effect
of quashing such an order; it would of course be neces-
sary that all documents be freely made available to
the tribunal.
Article 29, Section 6
At present this Section provides that "no international
agreement shall be part of the domestic law of the State,
save as may be determined by the Oireachtas". On the
The Finance Bill
The following provisions in this Bill as introduced are
of interest to practitioners
Income Tax
Section 1
imposes income tax and sur-tax for the
year 1971-72 at percentage rates corresponding to the
rates in force for the year 1970-71.
Section
2 terminates for 1971-72 and subsequent
years the reduced rate relief whereby the first £100 of
an individual's taxable income was charged at two-
thirds of the standard rate of tax.
Section 3
provides that where, in the case of a cessa-
tion of a trade or profession, the aggregate of the actual
basis of that exceptionally restrictive wording, the
Supreme Court held that
Lawless
(1960) I.R. 16, was not
entitled to rely on the European Convention of Human
Rights, as the Convention had not been specifically
enacted as Irish law by an Act of the Oireachtas. It
will be necessary in due course to consider further inter-
national agreements from a broader point of view, as
compulsory legislation to validate international agree-
ments would seem to be unduly restrictive. This applies
particularly to the Treaty of Rome of 1957 relating to
the establishment of the European Economic Com -
munity and, in order to provide for entry without
complications when the time comes, it is submitted that
Article 29, Section 6, should be amended on the follow-
ing basis: "Unless the Oireachtas specifically deter-
mines otherwise, multilateral international agreements
to which Ireland is a party shall be deemed to be incor-
porated in the municipal law of Ireland". This would
have the effect of putting Ireland on the same basis as
Federal Germany, Belgium and Holland, and would
aid considerably in the judicial interpretation of inter-
national agreements by international Courts.
Article 31
The Council of State has met so rarely that it is inevit-
ably considered to be of little importance. In order to
enhance its status, provision could be made, without
any amendment, that in practice it should be summoned
by the President say at least once every two years to
review the general political and economic situation of
the country. These meetings of the Council of State
should be held automatically, regardless of the special
occasions when the President is compelled to summon
this Council by virtue of the Constitution.
Article 34, Section 4, Subsection 6
This subsection at present provides that "the decision of
the Supreme Court shall in all cases be final and con-
clusive". In the event of our entering the European
Community, as appears likely, cognisance will have to
be taken that all questions of interpretation of the
Treaty of Rome of March 1957 must be determined by
the Court of the European Community, whose decisions
are absolutely binding on all members. Under Article 177
of the Treaty, the Supreme Court would have no alter-
native but to refer any question of interpretation relating
to the Treaty of Rome to the Court of the European
Community. An amendment would seem to be necessary
for this contingency.
1 9 7 1
profits for the two years of assesment preceding that in
which the cessation takes place exceeds the aggregate
of the profits charged for those two years the assessment
for each of the two years will be adjusted to the actual
amount of the profits. The section will not apply to
cessations occurring before 6th April 1972.
Exporting Overdrafts
Section 4
prevents a person ordinarily resident in the
State, but whose foreign income is chargeable to tax on
the basis of the amounts remitted to this country,
avoiding tax by arranging that his foreign income is
applied abroad in satisfaction of loans enjoyed in the
State. The section secures, in the case of any such
81