277 / 300
the old six EEC states) represent a huge body of
experience and expertise, which should be used for the
Community's benefit. The Commission does not want
to inhibit improvements in national company law, or to
inhibit lawyers in developing new arrangements.
Lawyers in the new member countries should recognise
that their company laws have weaknesses which are
more obvious to foreign lawyers than to themselves. To
ensure interpenetrat'.on of economies, pitfalls for in-
vestors had to he eliminated. But there is no reason to
replace the principles of Irish law with other prin-
ciples. Irish lawyers could contribute to the marriage
of Irish and Continental law.
KENNY REPORT ON PRICE OF BUILDING
LAND
Submission to the Minister for Local Government by
the Incorporated Law Society
By Article 35, Section 2, the Constitution establishes
an independent Judiciary.
The powers of the Judiciary and the Executive are
absolutely separated and one of the major functions of
the judicial arm of the State is to protect the individual
against the encroachments of the Executive.
The majority report of the Committee on the price
of building land ("the majority report") refers in the
chapter entitled "The Constitution" to that part of the
Constitution under the heading of "fundamental
rights" and refers in particular to Articles 40 and 43.
At paragraph 87 on pages 45 and 46 the relevant
articles of the Constitution are set forth. At page 49,
paragraph 93, the majority report state that they
propose that the High Court should be authorised to
operate a form of price control in designated areas,
". . . the proposal involves a delimitation of property
rights but one which is no more restrictive than other
forms of price control".
At page 52, paragraph 100, however, the majority
clearly and unmistakeably set forth that they are of
the opinion that the price control which they envisage
is such that "its exercixe could affect in a far reaching
way the fortunes and property of the owner" and that
therefore it would be unconstitutional having regard to
Article 37 of the Constitution unless exercised by the
High Court.
What the Majority report makes clear is that be-
cause the powers they wish to give to Local Authorities
to "designate" areas could affect in a far reaching
way the fortunes and property of land owners, a new
jurisdication must be conferred on the High Court to
overcome what would otherwise be unconstitutional.
We have doubts that such a new jurisdiction would be
held to be constitutional because in its efforts to be so, it
may itself erode the fundamental rights of the indivi-
dual under the Constitution.
Indeed, the decisions reached by the Supreme Court
in three recent Constitutional cases would seem to
indicate that the reasoning in the
Attorney General v.
Southern Industrial Trust Limited
(1960) 94 I.L.T.R.
161 (which is relied upon by the Majority report in
the Chapter entitled "the Constitution") will not be
followed in subsequent cases. In fact in the case of
Central
Development
Association
Limited
v.
The
Attorney General
(Judgment given in the High Court
on 6 October, 1969) Mr. Justice Kenny considered
that the Supreme Court wrongly interpreted the Con-
stitution in the Southern Industrial Trust case.
The three cases we refer to are
Byrne v. Ireland
(1972) I.R. 241,
O'Brien v. Keogh
(1972) I.R. 144 and
McGee v. Attorney General,
unreported, Judgment in
which was delivered on 19 December 1973.
These cases are extremely important because they
indicate the high duty the Supreme Court appears to
place on the Oireachtas in relation to the protection of
property rights.
The Majority report does not deal with the interest-
ing developments 'relating to the right of private pro-
perty contained in the decisions of Byrne v. Ireland
and O'Brien v. Keogh and seeks to make use of the
Attorney General v. Southern Industrial Trust Limited
in support of their argument that their proposals are
not unconstitutional while the same case was subse-
quently criticised in both the High Court and the
Supreme Court.
Danger of extending High Court jurisdiction
It is vital to the welfare of the State that the Courts
should retain their independence of the Executive and
should be known and seen as a force to protect the
rights of the individual against any invasion of the
individual's rights by the State. The Majority report
at page 64 quotes from a writing of Lord Devlin which
in our view underlines the dangers of entrusting a new
controversial jurisdiction to a Senior Court of Law.
Lord Devlin wrote :
"It is a wise instinct which has led Governments so
often to entrust the initiation of new and untried
jurisdictions, even when uncontroversial, to Statutory
Tribunals. Non-compliance with the Tribunal's
Order is of course an offence but it is the Executive
who prosecute and the police, not an Officer of the
Court, who act. The High Court plays a remote and
supervisory role; and if the Tribunal suffers from the
embroilment, the prestige of the Court is not in-
volved."
The Majority report considered that the advantages
of a Statutory Tribunal would be obtained if the Judge
exercising the new jurisdiction was obliged by the Act
to sit with two Assessors, one with Town Planning
experience and the other with qualifications in valua-
tion matters. We do not share the views of the Majority
Committee and believe that if the High Court is made
use of in the way suggested that the independence
and dignity of the Court will be seriously damaged.
In support of this statement we will examine the
"machinery" by which an application will be brought
before the High Court.
It is proposed that each Local Authority would have
power to apply to the High Court to designate areas
274