The Gazette 1974

The right to determine the form of Government

As we have seen, by Article 6, Section 1, of the

Constitution, all powers of Government, legislative,

executive and judicial, derive under God from the

people whose right it is to designate the Rulers of the

btate, and in final appeal to decide of national policy

according to the requirements of the common good,

subsection 2. These powers of Government are exer-

cisable only by or on the authority of the organs of the

State established by the Constitution.

At the same time it was decided by the Supreme

Court in

Byrne v. Ireland

(1972) I.R. 241, that the

^tate is undoubtedly a juristic person which is vari-

ously liable for the tortious acts of its servants com-

mitted while in the course of employment.

Cognisance should also be taken of the noble terms of

me Preamble particularly its reference to "seeking to

promote the common good with due observance of

Prudence, justice and charity, so that the dignity and

freedom of the individual may be assured, true social

°rder attained, the unity of our country restored, and

concord be established with other nations, do hereby

adopt enact and give to ourselves this Constitution."

It is thus clear that the Irish people have a right to

determine their own form of Government, but only

irregularly at election times and not, when they wish,

oy means of the Initiative. Furthermore, by Constitu-

tional Amendment (No. 4) Act 1972, the age of voters

lor Dail and Presidential elections was reduced from

years to 18 years.

The right of association

The next right is that of

Association

contained in

Article 40, Section 6, Sub-Clause 3. This Clause states

that the State guarantees liberty for the exercise of the

following rights subject to public order and morality

namely—inter alia—the right of the citizens to form

Associations and Unions. Laws, however, may be

enacted for the regulation and control in the public

mterest of the exercise of the foregoing right. Laws

gulating the manner in which the right of forming

Associations and Unions and the right to free assembly

may be exercised shall, however, contain no political,

religious or class discrimination. It is known that it was

mtended that the new Industrial Relations Bill should

°ntain very stringent penalties to be enforced in the

ent of unofficial strikes, but this was found im-

practicable to enforce. There is little doubt that

pnofficial lightning strikes have become a very serious

mipediment to the growth of our economy. It

^ould henceforth be necessary to devise some means

hereby no strikes will be legal unless adequate notice

^ould officially be given by the trade union concerned.

According to the Constitution Committee Report, it

^ ° u ld seem that legislation is to be drafted providing

p minimum number of members for unions, and

Provision will be made to seek increased deposits for

mons seeking negotiations. Apparently a Bill had been

atted to minimise the decision in

Educational Co. v

'Patrick

(1961) I.R. 345, and to provide that

Picketing would always be lawful in the interests of full

nion membership, but it is more than likely that this

gislation would be declared unconstitutional,

"jome of the more recent Supreme Court decisions

a t l n

g to Tr ade Union Law are interesting, parti-

mrly as they were passed by a 3-2 majority.

l n

E.I. Co. Ltd. v. Kennedy

(1968) I.R. 69, Henchy

i a t

plaintiff company was entitled to

h investigation of the circumstances of the claim

for improved conditions of employment before the de-

fendants could commit irreparable damage by persistent

picketing, and that the defendants would not be

allowed to picket in a provocative manner. However

the majority of the Supreme Court (O'Dalaigh C.J.,

Haugh and Walsh JJ.), in allowing the appeal, held

that, at the hearing, there had been

prima

facie

evidence of a trade dispute about terms of employment

and conditions of labour, and sustained the defendant's

right to picket peacefully. It was also held that there

had not been sufficient evidence of the continuance of

the unlawful picketing which existed at first to justify

granting an interlocutory injunction, although this

picketing had been exceptionally violent and unruly.

Becton-Dickinson

v. Lee

(No. 2), unreported,

19 December 1972, the majority of the Supreme Court

(O'Dalaigh C.J., Walsh and Butler JJ.) held that a

separate trade union with very few members was en-

titled to picket to gain recognition, despite the fact

that there was a contract between the employers and

two other large unions that all employees in the firm

would belong exclusively to those unions. The reason-

ing was that if a particular trade union was designated

by workmen as their representatives in a negotiating

capacity, then they are doing something connected with

their employment. If an employer refuses to treat with

that designated representative, then that refusal can

allegedly constituted a trade dispute. This appears to

give rise to the dangerous doctrine that a handful of

union members in a firm can declare unnecessary strikes

and then picket on the alleged ground that there is a

trade dispute, thus causing unnecessary hardship.

The minority views of Fitzgerald and Henchy JJ.

shared in the High Court by McLoughlin J., that the

purpose of the picket was to coerce the company to

break their contract with the two unions with whom

they had an agreement seems reasonable, and a per-

petual injunction would appear to have been justified

here.

At present, Article 40, Section 6, purports to give an

effective triple guarantee. (1) The right to Free Speech.

(2) The right of Peaceable Assembly and (3) The right

of Forming Associations and Trade Unions. All these

rights which are not necessarily connected are most

effectively hedged in with curbs and restrictions. This

Section requires to be completely recast to offer ade-

quate protection. It would seem that each of these three

quite separate rights should be set out in completely

different sections.

The present right of Freedom of Association is guar-

anteed by the

Industrial Relations Act 1946

whereby

a Labour Court is established which may issue non-

enforcable recommendations in disputes

between

employers and workers. Furthermore, broadly speaking

the excessively wide rights conferred upon Tr ade

Unions under the Tr ade Disputes Act 1906 as to pro-

tection of their liability have generally not been

affected. However, in

Educational

Company

v Fitz-

patrick

(1961) I.R. 345, it was held by the Supreme

Court that it would be unconstitutional for any mem-

bers of any Trade Union to compel non-members work-

ing with them to join a Tr ade Union. Nothing in the

Constitution should prevent the State from instituting

special orders of honour, by which deeds of valour

and special services to science, art and literature could

be recognised.

Freedom of expression

The right to Freedom of Expression is set out in