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as they were relevant, not only failed to substantiate
the appellant's claim that the Courts had authority to
intervene or restrain the Government in the exercise of
its executive function, but led to quite the contrary
conclusion. In the absence of any authority to support
his contention that the courts had jurisdiction to inter-
vene, Mr. Sorohan had submitted that this power,
while not stated in the Constitution, was to be implied.
"I can find no basis upon which such a provision should
or could be implied," said the Chief Justice.
Clause 5 of communiqué not an agreement
The Chief Justice said that in his opinion the courts
had no power, either expres or implied, to supervise
or interfere with the exercise by the Government of its
executive functions, unless the circumstances were such
as to amount to a clear disregard by the Government
of the powers and duties conferred upon it by the
Constitution.
Continuing, the Chief Justice said that in his opinion,
Clause 5 of the communiqué was not capable of being
construed as an agreement. Clauses 2, 3 and 4 of the
communiqué made it perfectly clear that the three
parties to the conference were stating their respective
distinctive positions in relation to the question of the
unity of Ireland.
Clause 5 contained declarations by the Irish and
British governments which were clearly distinct and in
no sense an agreement on fact or principle. The only
words common to both declarations were "the status of
Northern Ireland". If any interference was to be drawn
from the method of printing the declarations side by
side instead of consecutively, it must be to emphasise the
distinction between them. The "status of Northern
Ireland" and the acceptance of it was, to his mind, a
reference to the
de facto
position of Northern Ireland
and nothing else and the respective declarations were
no more than assertions of the policies of the respective
governments, matters clearly within their respective
executive functions.
Plaintiff's action misconceived
"Consequently Clause 5, in my opinion, is not capable
of being construed as any action by the Government
which would bring it within the jurisdiction of the
courts to supervise or restrain", said the Chief Justice.
Clause 6, while expressing agreement for the making
of a further formal agreement between the British and
Irish governments, was confined to the incorporation of
the declarations already expressed in clause 5.
Clause 20, while expressing agreement to hold a
subsequent formal conference for the purpose of con-
sidering reports and the signing of the agreement
reached, must be dependant upon the formal Con-
ference in fact reaching an agreement He could find
nothing in this clause which in any way modified the
clear positions under clauses 2, 3 and 5 as to their
declarations in relation to Northern Ireland.
"I am, consequently, of the opinion that the
plaintiff's action was misconceived; that the decision
of Mr. Justice Murnaghan was correct; and that this
appeal should be dismissed", said the Chief Justice.
Clause 5 merely represents de facto position
The President of the High Court (Mr. Justice
O'Keeffe) agreed with the judgment of the Chief
Justice and said that an acknowledgment by the
Government that the State did not claim to be entitled
as of right to jurisdiction over Northern Ireland would,
in his opinion, not be within the competence of the
Government having regard to the provisions of the
Constitution. He could not presume that the Govern-
ment would consciously make an acknowledgment of
that kind. Accordingly he accepted the view of the
Chief Justice that clause 5 represented no more than a
reference to the de facto position of Northern Ireland
coupled with a statement of policy in regard thereto.
Mr. Justice Budd said it was to be particularly
noticed that the Taoiseach had stated that none had
compromised and none had asked others to compromise
in relation to basic aspirations. The whole tenor was
that the principal object of the conference was to see
what rqeasure of agreement could be secured. The
declaration would appear to be a statement on a matter
of policy and it was for the Executive to formulate
policy.
If the Courts were to pronounce adversely or other-
wise on what the Government intended to do on any
matters of policy which it was in the course of formul-
ating, that would be an attempted interference with
matters which were the functions of the Executive and
no function of the Judiciary.
Court can only interfere if Government action uncon-
stitutional
Mr. Justice Griffin said that the Government was,
by the Constitution, made responsible to Dail Eireann.
Mr. Liston (for the Government) had argued that in
no circumstances might the Court interfere with the
Government in the exercise of its Executive functions.
For the purposes of this action it was not necessary to
determine this question in the form in which the argu-
ment was made as the defendants needed only to show
that the Court could not and should not intervene
having regard to the circumstances of the present case.
In the event of the Government acting in a manner
which was in contravention of some provision of the
Constitution it would in his view be the duty and right
of the Courts, as guardians of the Constitution, to
intervene when called upon to do so if a complaint of a
breach of any of the provisions of the Constitution was
substantiated in proceedings brought before the court.
In his opinion any attempt to restrain the Govern-
ment from entering into the agreement contemplated
by the communique would be an unwarranted and un-
justifiable interference by the courts with the organ of
State to which, under Article 29 of the Constitution,
the power to enter into international agreements was
given.
In his judgment the plaintiff had shown no cause of
action. In the event it was not necessary to interpret
paragraph 5 of the communique.
Mr. Justice Pringle said he was satisfied that the
Courts had no power to interfere with the exercise by
the Government of its executive functions.
[Boland v. An Taoiseach and others; Supreme
Court; unreported; 1/3/1974.]
High Court gives verdict against stockbroking firm.
In a judgment delivered by Mr. Justice Pringle in
the High Court, in Dublin, a Dublin firm of stock-
brokers were found to have been "guilty of certain
breaches of their duty" to a client. In the course of his
judgment, Mr. Justice Pringle said that the duty of a
stockbroker was the same as that owed by any other
professional person.
He was giving judgment in a counter-claim brought
by Francis Cruess-Callaghan, a management consultant,
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