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Supreme Court of Ireland Decisions
You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> McGimpsey v. Ireland  IESC 3 (1st March, 1990)
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is an appeal by the plaintiffs against the dismissal on the 25th July, 1998, by
order of the High Court made by Barrington J. of their claim for a declaration
that the "Agreement between the Government of Ireland and the Government of the
United Kingdom" made on the l5th November, 1985 (the Anglo-Irish Agreement) is
contrary to the provisions of the Constitution.
learned trial judge, having heard the plaintiffs in evidence, was satisfied
that in the expression of these opinions and in their attitude to the problems
with which the case is concerned, they were both sincere. Against these
findings by the learned trial judge there is no form of appeal, nor is there
any suggestion that they are otherwise than justified by the evidence which he
plaintiffs' claim for a declaration that the provisions of the Anglo-Irish
Agreement are contrary to the provisions of the Constitution was directed in
particular to Articles 1, 2, 4 and 5 of the Agreement, and the inconsistency
alleged was with Articles 2, 3, 29 and 40 of the Constitution.
the submissions made on behalf of the defendants in the court below on foot of
this plea of an absence of
was that the plaintiffs should not be permitted to invoke Article 2 of the
Constitution because they themselves do not believe that "the national
territory consists of the whole island of Ireland" and are only invoking the
Article in a tactical manoeuvre.
statement of claim contains no claim that either plaintiff is a citizen of
Ireland, although it is stated that the first plaintiff is the holder of an
Irish passport. No evidence was given by either plaintiff that either he or
either of his parents had made the prescribed declaration pursuant to s. 7,
sub-s. 1, of the Irish Nationality and Citizenship Act, 1956, or of any facts
which would indicate that he was "otherwise an Irish citizen".
may well be that the plaintiffs are Irish citizens under s. 6, sub-s. 1 of the
Act of 1956 because either or both of their parents were Irish citizens at the
respective dates of their births, though this was not proved.
the defendants made no submissions to this Court on this issue and have not
sought to vary the finding of the learned trial judge to which I have referred,
I will assume without deciding that each of the plaintiffs is an Irish citizen.
this finding the defendants did not enter any cross-appeal or notice to vary.
This Court, as it would be bound to do, raised the query as to the
of the plaintiffs and the consequent jurisdiction of this Court to determine
the issues raised on the appeal. Counsel for the defendants, upon that being
raised, did not seek by any special submission or argument to vary the decision
which had been reached by the learned trial judge.
a general proposition it would appear to me that one would have to entertain
considerable doubt as to whether any citizen would have the
to challenge the constitutional validity of an act of the executive or of a
statute of the Oireachtas for the specific and sole purpose of achieving an
objective directly contrary to the purpose of the constitutional provision
invoked. However, having regard to the evidence in this case, to the findings
of fact made by the learned trial judge, and to the absence of any cross-appeal
brought on behalf of the defendants, I am satisfied that the plaintiffs' claim
in this case and their appeal against the dismissal of it by the High Court
should be entertained on its merits.
J. in the course of his judgment identified from previous decisions what
appeared to him to be two conflicting interpretations of Articles 2 and 3 of
the Constitution. He concluded that the impugned provisions of the Agreement
were not contrary to either of these interpretations, and that accordingly it
was not necessary for him to decide between them.
first interpretation mentioned by the learned trial judge was derived by him
from the decision of this Court on the reference of the
Law (Jurisdiction) Bill, 1975
 I.R. 129, and he quotes from that decision the following paragraph at p.
that decision he concluded that the interpretation of the Articles was as
follows: Article 2 contained a claim to the national territory of the whole of
the island of Ireland, its islands and the territorial seas as a claim in the
political order and not as a claim of legal right. Article 3 provided that,
pending the re-integration of the national territory, the Parliament
established by the Constitution could only enact laws with a like area and
extent of application as the laws of Saorstát Éireann and the
like extraterritorial effect, and therefore could not enact laws with an area
of application in the counties of Northern Ireland.
for both parties submitted in the High Court, and repeated those submissions in
this Court, that Article 2 constituted a claim of a legal right, but that,
pursuant to Article 3, the Parliament established by the Constitution was
entitled at any time it wished to enact laws applicable in the counties of
Northern Ireland, though pending the re-integration of the national territory,
laws enacted which did not otherwise provide are deemed to have the restricted
area and extent mentioned in the article.
support of this submission they relied on the dictum of O'Keeffe P. in
v. An Taoiseach
I.R. 338, and on the decision of O'Byrne J. in
People v. Ruttledge
decided in 1947 but reported at  I.R. 376.
am not satisfied that the statement that "this national claim to unity exists
not in the legal but the political order and is one of the rights which are
envisaged in Article 2", necessarily means that the claim to the entire
national territory is not a claim of legal right.
phrase occurs in a decision tracing the historical, political and social
background to the Constitution, and seems more appropriately understood as a
reference to the origin of the claim than to its nature. If, however, it is so
construed, I would after careful consideration feel obliged to decline to
follow it. I do not accept the contention that Article 3 is to be construed as
permitting, during the period pending the re-integration of the national
territory, the enactment of laws applicable in the counties of Northern Ireland.
Articles 2 and 3 of the Constitution should be read the preamble, and I am
satisfied that the true interpretation of these constitutional provisions is as
provision in Article 3 of the Constitution contained in the words "and without
prejudice to the right of the Parliament and Government established by this
Constitution to exercise jurisdiction over the whole of that territory" is an
express denial and disclaimer made to the community of nations of acquiescence
to any claim that, pending the re-integration of the national territory, the
frontier at present existing between the State and Northern Ireland is or can
be accepted as conclusive of the matter or that there can be any prescriptive
title thereby created and an assertion that there can be no estoppel created by
the restriction in Article 3 on the application of the laws of the State in
Northern Ireland. This is of course quite distinct from the extra-territorial
effect of the laws of the State in respect of matters occurring outside the
State for which persons are made answerable in the courts of the State.
regard to the first of these grounds the plaintiffs relied, in addition to the
terms of the Agreement and of the Constitution, upon submissions that the terms
of the Agreement could in international law constitute an estoppel preventing a
subsequent assertion of right to the re-integration of the national territory
and also on a submission that the fact that the Agreement did not contain a
fixed time for its duration added to the alleged constitutional inconsistency.
main source of this submission was article 1 of the Anglo- Irish Agreement. In
the course of his judgment Barrington J., after considering the details of that
and other provisions of the Agreement, reached the following conclusion:-
find myself in agreement with this economical but precise analysis of the
provisions of article 1. The learned trial judge then concluded that on any
interpretation of the provisions of Articles 2 and 3 of the Constitution, these
provisions of the Anglo-Irish Agreement were not in any way inconsistent with
either of those two Articles. With that conclusion I am in complete agreement.
There can be no doubt but that the only reasonable interpretation of article 1,
taken in conjunction with the denial of derogation from sovereignty contained
in article 2, para. (b), of the Anglo-Irish Agreement is that it constitutes a
recognition of the
situation in Northern Ireland but does so expressly without abandoning the
claim to the re-integration of the national territory. These are essential
ingredients of the constitutional provisions in Articles 2 and 3.
interpretation is not affected by the provisions of article 4, para. (c) or
article 5, para. (c) nor are either of these two articles capable of any
separate inconsistent interpretation. In so far as they accept the concept of
change in the
status of Northern Ireland as being something that would require the consent of
the majority of the people of Northern Ireland these articles of the Agreement
seem to me to be compatible with the obligations undertaken by the State in
Article 29, ss. 1 and 2 of the Constitution, whereby Ireland affirms its
devotion to the ideal of peace and friendly co-operation and its adherence to
the principles of the pacific settlement of international disputes.
conclusion that these articles of the Anglo-Irish Agreement do not constitute
any form of abandonment of the claim of right to the re-integration of the
national territory but constitute instead a realistic recognition of the
situation in Northern Ireland leads to the consequential conclusion that the
Anglo-Irish Agreement cannot be impugned on the basis of any supposed estoppel
arising to defeat the constitutional claim to re-integration, nor on the basis
of any indefinite duration in the Agreement.
submission made on this issue was that the terms of the Anglo-Irish Agreement
were of similar character to the terms of the Single European Act which the
decision of this Court in
v. An Taoiseach
 IR 713 held to be inconsistent with the provisions of Article 29 of the
am satisfied that this analogy is quite false. The Anglo-Irish Agreement is an
agreement reached between two governments, both of whom have an acknowledged
concern in relation to the affairs of Northern Ireland. It acknowledges that
the Government of Ireland may make representations, put forward proposals, and
try to influence the evolution of peace and order in Northern Ireland.
frameworks contained in the Agreement and structures created by it provide
methods of carrying out these activities, it can be argued, in the manner most
likely to make them effective and acceptable, namely, constant mutual
discussion. The Government of Ireland at any time carrying out the functions
which have been agreed under the Anglo-Irish Agreement is entirely free to do
so in the manner in which it, and it alone, thinks most conducive to the
achieving of the aims to which it is committed. A procedure which is likely to
lead to peaceable and friendly co-operation at any given time must surely be
consistent with the constitutional position of a state that affirms its
devotion not only to the ideal of peace and friendly co-operation but to that
ideal founded on international justice and morality.
basis of the decision of this Court in
v. An Taoiseach
 IR 713 was that the terms of the Single European Act could oblige the
Government in carrying out the foreign policy of the State to make the national
interests of the State, to a greater or lesser extent, subservient to the
national interests of other member states. I have no doubt that there is a vast
and determining difference between the provisions of this Agreement and the
provisions of the Single European Act as interpreted by this Court in
v. An Taoiseach
 IR 713.
submission made on the appeal in regard to this matter was that the provisions
of the Anglo-Irish Agreement contained in article 4, para. (c) and article 5,
para. (c) which expressly recognised the conference as a framework within which
the Irish Government might put forward views and proposals on bringing about
devolution in Northern Ireland, in so far as they relate to the interests of
the minority community, constituted a breach of Article 40, s. 1 of the
Constitution. The Anglo-Irish Agreement is not "a law" within the meaning of
that term contained in Article 40, s. 1 of the Constitution. A provision for
the capacity of the Irish Government in regard to possible devolution in
Northern Ireland to put forward views and proposals as to the modalities of
bringing that about could not be the holding of any person equal or unequal
before the "law".
the alternative, the submission was made that the provisions of this subclause
of the Agreement were inconsistent with Article 40, s. 3, sub-s. 1 of the
Constitution. I am satisfied that they are not. The mere fact that there is an
express acknowledgment in the event of discussions leading or intended to lead
to devolution in Northern Ireland of the right of the Irish Government to bring
forward views and proposals in so far as they relate to the interests of the
minority community in Northern Ireland is in no way an abandonment of concern
by the Irish Government for the majority community in Northern Ireland.
does not seem to me that there are any grounds for suggesting that there has
been an invidious or any discrimination between the two communities in Northern
Ireland by virtue of the terms of the Anglo-Irish Agreement.
am satisfied, therefore, that all the grounds of the appeal brought by the
plaintiffs must fail. I come to that conclusion from an analysis of each of the
submissions that have been made, both in the High Court and in this Court. I
would also point out, however, that there is, looking at the Anglo-Irish
Agreement in its totality and looking at the entire scheme and thrust of the
Constitution of Ireland a high improbability that a clear attempt to resolve
the position with regard to the re-integration of the national territory and
the position of Northern Ireland by a process of consultation, discussion and
reasoned argument structured by constant communication between servants of each
of the two states concerned could ever be inconsistent with a Constitution
devoted to the ideals of ordered, peaceful international relations. I would
dismiss this appeal.
trial judge concluded that each of the plaintiffs was a citizen of Ireland. As
citizens they are bound by the provisions of Article 9, s. 2 of the
Constitution which prescribes that fidelity to the nation and loyalty to the
State are fundamental political duties of all citizens. Such fidelity and
loyalty do not prohibit or restrict disagreement with the content of the
Constitution nor with the actions of government. There are few citizens who
have made a public declaration to uphold the Constitution which contains the
constitutional imperative in its preamble that the unity of our country be
restored and Article 2 which defines the national territory as the whole island
of Ireland, its islands and the territorial seas. The plaintiffs uphold the
union of Northern Ireland with Britain, they reject Article 2 but claim that
the Anglo-Irish Agreement is in conflict with it, is therefore invalid having
regard to the provisions of the Constitution and thereby call it in aid to
achieve their objective which is the maintenance of partition and of the union
with Britain. They approbate and reprobate.
is a distinction between an objective and the means of achieving it. One does
not look to the objective of a particular legal submission; one looks to the
submission itself. One does not determine
motive but rather by objective assessment of rights and the means of protecting
 I.R. 269 the plaintiff who invoked constitutional protection was denied
the right to do so because the type of protection invoked would not, on the
facts, have done her any good. It would have done her a great deal of good if
the result was to condemn the section of the statute which defeated her claim,
but the argument of constitutional injustice did not apply to her situation.
Here the argument advanced by the plaintiffs does apply to the facts of their
case, as Irish and as British citizens living in Northern Ireland, and in such
case, their motive is irrelevant. It is commonplace for litigants to invoke the
law for the worst of motives; many pleas of statutory defence may have a most
venal purpose but that does not affect the validity of any such defence. The
plaintiffs appear to be contending that, being made Irish citizens by this
State, disapproving of the constitutional claim in Article 2, being concerned
as to the effect of the Anglo-Irish Agreement on them as residents of Northern
Ireland, they are entitled to demand of this State that, as the People make the
rules, they must abide by them, whatever be the plaintiffs' motive or objective.
this right, however, extend to a challenge to the making of a treaty by the
Government pursuant to Article 29? In
 I.L.R.M. 12 a foreign captain of a fishery vessel successfully
challenged the constitutionality of certain provisions of the Fisheries
(Consolidation) Act, 1959, under which he was prosecuted for unlawful fishing.
v. An Taoiseach
 IR 713 a successful challenge was made by an undoubted citizen against
the ratification of part of the Single European Act. It seems unlikely that a
non-citizen would have been allowed to maintain such proceedings. The citizens
of the United Kingdom in Britain have a very real interest in the Anglo-Irish
Agreement; is each one of them to be heard to challenge its validity as being
repugnant to the Constitution of Ireland? I think not. Might such a claim be
sustained at the suit of a person living in Northern Ireland but born outside
of Ireland? I think not. The .plaintiffs' right to sue, if right there be, must
depend upon citizenship. In
State (Nicolaou) v. An Bord Uchtála
 I.R. 567 Teevan J., said at p. 600:-
a case such as the present, in my judgment, a non-citizen does not have the
to maintain a challenge of the kind propounded here against the constitutional
validity of the Anglo-Irish Agreement. The issue of
was raised in the defence and contested at the trial. The statement of claim
does not allege that either plaintiff is a citizen of Ireland and neither
plaintiff testified as to being a citizen or having made the prescribed
declaration pursuant to s. 7, sub- s. 1 of the Irish Nationality and
Citizenship Act, 1956. In my view, the plaintiffs were not shown to be Irish
citizens although Barrington J., in his judgment, stated that both plaintiffs
were born in Ireland and "are therefore in contemplation of Irish law citizens
of Ireland." No appeal or notice to vary was brought in respect of this
finding. Because of this and the importance of the issue raised, whilst I am
not satisfied that the plaintiffs have
to maintain this action, I think it right to determine the main issue in the
have read the judgment delivered by the Chief Justice and I wholly agree with
the conclusion that the plaintiffs have failed in their challenge to the
Anglo-Irish Agreement. I would wish to state my firm opinion that, whatever the
political background to the wording of Article 2 of the Constitution, it is an
unequivocal claim as of legal right that the national territory consists of the
whole island of Ireland, its islands and the territorial seas (see O'Keeffe P.
v. An Taoiseach
I.R. 338 at p. 363).