THE SUPREME COURT

Hamilton C.J.                                                                                        Rec. No. 100/1998
Denham J.                                                                                             (1991 No. 6620P)
Barrington J.
Keane J.
Lynch J.

Between:
AN BLASCAOD MÓR TEORANTA,
PETER CALLERY, JAMES CALLERY, KAY BROOKS 
and 
MATHIAS JAUCH
                                                             Plaintiffs/Respondents
and
THE COMMISSIONERS OF PUBLIC WORKS IN IRELAND, 
THE MINISTER FOR THE GAELTACHT IRELAND
and 
THE ATTORNEY GENERAL
                                                                     Defendants/Appellants
AND BY ORDER
THE MINISTER FOR ARTS, HERITAGE, GAELTACHT and THE ISLANDS (SUBSTITUTED DEFENDANT FOR THE FIRST AND SECOND NAMED DEFENDANTS/APPELLANTS)
JUDGMENT of the Court handed down by Barrington J. on the   27th day of July, 1999.
	This is the State’s Appeal from the Judgment and Order of Budd J. delivered and made herein on the 27th day of February, 1998 whereby he ruled that An Blascaod Mór National Park Act, 1989 was invalid having regard to the provisions of the Constitution.

	The Plaintiffs/Respondents (hereinafter referred to as the Plaintiffs) are five in number.   The first-named Plaintiff is a Company incorporated under Irish Law and has its registered office at the Great Blasket Island, Dunquinn, Co. Kerry.  The entire issued share capital of the Company is owned beneficially by the second, third and fourth named Plaintiffs.  The said Company is the registered owner of certain properties on the Great Blasket Island.

	The second and third named Plaintiffs are both citizens of Ireland and are also entitled to be jointly registered as owners of certain properties on the Great Blasket Islands.  They are also entitled to be registered as owners of all the undivided share or commonage registered in Folio 12252 Co. Kerry and part of the lands registered in Folio 12253 Co. Kerry.   The fourth named Plaintiff is a citizen of the United States of America and a shareholder in the first named Plaintiff.

	The fifth named Plaintiff is a German citizen.   His claim to a parcel of lands on the Great Blasket arises out of the death of his brother Arne Jauch who died intestate, unmarried and without issue.   Arne Jauch was, at the time of his death an Irish citizen, domiciled in Ireland.   Dr. Jauch has not yet raised representation to the Estate of his deceased brother so that, at all material times, it would appear that the lands which the late Arne Jauch owned on the Great Blasket were part of the estate of a deceased Irish citizen.

BACKGROUND.
	It is common case that the Great Blasket Island is a place of great natural beauty.  It is also important in the cultural history of Ireland because of the writers it produced and because of the record which they left of the dying days of an island community and of the effects of emigration.   But the Island has been uninhabited since 1953.   The islanders departed leaving their houses unoccupied and their lands untended.   

	The history of what happened since the last inhabitants were evacuated from the Island in 1953 is set out in some detail in the Judgment of the learned trial Judge.   It is unnecessary to repeat it here.  Suffice it to say that the Plaintiffs, over the course of the years, have acquired many of the plots and dwellinghouses in the village on the Great Blasket and that the first four Plaintiffs, between them, are entitled to 17/25ths of the great commonage which comprises 1,060 acres out of a total acreage of 1,132 acres for the entire Island.

	The Plaintiffs - and their predecessors in title - were largely inspired by interest in the Great Blasket and by its history and traditions.  They have probably done more than anyone else to preserve some of the houses in the village on the Island but the village, as a whole, is suffering from neglect and is in danger of collapse.

	In or about 1986 a private association of persons interested in the Great Blasket was formed.  This was known as “Fonduireacht An Bhlascaoid - The Blasket Island Foundation”.   The professed objective of the Association was to turn the Great Blasket Island into a National Historic Park.  The said Association was later incorporated in the State as a Company limited by guarantee without share capital on the 4th day of November, 1987.

AN BLASCAOD MÓR NATIONAL HISTORIC PARK ACT, 1989.
	In 1989 the Oireachtas passed An Blascaod Mór National Historic Park Act, 1989.  In this bitterly fought case no-one seriously questioned the power of the Oireachtas to acquire an uninhabited island such as the Great Blasket for the purpose of establishing a National Park.  It is the form which the Act took which has created all the controversy.   

	The long title to the Act reads as follows:-
“AN ACT TO PROVIDE, IN THE INTERESTS OF THE COMMON GOOD, FOR THE ESTABLISHMENT AND MAINTENANCE ON AN BLASCAOD MÓR OF A PARK TO BE KNOWN AS AN BLASCAOID MÓR NATIONAL HISTORIC PARK AND FOR THOSE PURPOSES TO CONFER APPROPRIATE POWERS (INCLUDING THE POWER TO ACQUIRE LAND), FUNCTIONS AND DUTIES UPON THE COMMISSIONERS OF PUBLIC WORKS IN IRELAND AND TO AUTHORISE THE DELEGATION OF CERTAIN OF THOSE POWERS , FUNCTIONS AND DUTIES TO FONDÚIREACHT AN BHLASCAOID TEORANTA AND TO PROVIDE FOR CONNECTED MATTERS. [7th June, 1989] 

It defines the ‘Minister’ as being the “Minister for the Gaeltacht”.
 
	Section 1 defines “the Foundation” as follows:-

“the Foundation” means Fondúireacht An Bhlascaoid Teoranta, being the body incorporated for the purpose, inter alia, of preserving, and promoting the knowledge of, the historic heritage, culture, traditions and values of An Blascaod Mór and Corca Dhuibhne generally;”

	Section 2 provides:-

“The land on the Island vested in the Commissioners upon the passing of this Act together with the land acquired by the Commissioners under this Act shall be known as An Blascaod Mór National Historic Park”.

	Section 4 provides that the Commissioners may, for the purposes of the Act, acquire by agreement or compulsorily, any land situated on the Island.
	Section 4 s.s. (2) (a) provides as follows:-
	(2)  (a)	“The power conferred on the Commissioners by subsection 
(1) to acquire land compulsorily does not apply to-
(i)	land that is owned or occupied by a person who has owned or occupied it since the 17th day of November, 1953, and was ordinarily resident on the Island before that date, or,
(ii)	land that is owned or occupied by a relative of a person, where that person owned or occupied it and was ordinarily resident on the Island before that date”.

Section 4 s.s. (4) defines “relative” in reference to any person as meaning “parent, lineal ancestor, spouse, widow, widower, child, lineal descendant, uncle, aunt, brother, sister, nephew or niece.”

	Section 4 s.s. (3) provides that the provisions of the Schedule to the Act, which incorporates the Acquisition of Land (Assessment of Compensation) Act, 1919 are to apply to land acquired compulsorily under the section.

	The effect of these provisions is that the Commissioners can acquire compulsorily the lands of any of the Plaintiffs but cannot acquire compulsorily lands owned or occupied by any person who was ordinarily resident on the Island before the 17th day of November, 1953.  Nor can it acquire compulsorily land that is owned or occupied by a relative of a person, where that person owned or occupied it and was ordinarily resident on the Island before that date.  As the term “relative” includes lineal descendants of any person who owned or occupied land on the Island and was ordinarily resident on it throughout any time prior to the 17th day of November, 1953 the number of persons whose lands are excluded from the compulsory provisions of the Act is potentially very large and virtually indeterminate.  The number of persons whose lands are subjected to the compulsory provisions is very small and consists principally, if not exclusively, of the Plaintiffs.  Under these circumstances the Plaintiffs might be excused for assuming that the Act was aimed at them.   

	Section 2 provides that lands vested in the Commissioners upon the passing of the Act or acquired by them pursuant to the provisions of the Act are to be known as An Blascaod Mór National Historic Park and that the park is to be maintained and developed by the Commissioners for the use and benefit of the public as a park in which the historic heritage, culture, traditions and values of the Island and its inhabitants will be preserved and demonstrated. 

	Section 3 provides that the Commissioners may, with the consent of the Minister and after consultation, where appropriate, with the Foundation, make bye-laws for the care, maintenance, preservation and development of the park.

	Section 5 provides that the functions of the Commissioners under the Act are to be performed by them subject to the general superintendence and control
of the Minister and that certain specified functions of the Commissioners may be delegated by the Minister to the Foundation.

INSTITUTION OF PROCEEDINGS.
	The Act was passed on the 7th June, 1989.  The Plaintiffs, as already noted had been for some years the largest owners of land and buildings on the Great Blasket.  In March 1991 the first four Plaintiffs were served with Compulsory Purchase Orders.  On the 7th May, 1991 the first four Plaintiffs instituted proceedings in which they sought, inter alia, a declaration that the Act was invalid having regard to the provisions of the Constitution.   Mr. Jauch was joined as a Plaintiff at a later stage. 

	The action was bitterly fought and was at hearing in the High Court for some 48 days.  The Plaintiffs complained inter alia of (a) infringements of their property rights (b)  infringements of the equality guarantee in Article 40 of the Constitution (c) unfair procedures and breach of constitutional justice in the enactment of the legislation (d) the incorporation into the 1989 Act of the Acquisition of Lands (Assessment of Compensation) Act, 1919 (e) the allocation to the Foundation of certain functions under the Act and the power of the Minister to amend, by Order, the Act in any way he considered expedient (f) discrimination by impact or indirectly against E.U Nationals (g) lack of fair procedures in respect of compulsory acquisition (h) discrimination in respect of the administration of the Compulsory Purchase Orders (i) breach of the Ireland/USA Treaty, 1950 and of the European Convention of Human Rights.

LOCUS STANDI.
	The Defendants, in the High Court, challenged the locus standi of the Plaintiffs to bring the proceedings.  It appears to this Court, however, that the Plaintiffs - being persons whose lands stood to be acquired compulsorily under the Act - had sufficient locus standi to bring the proceedings.
DISCRIMINATION.
	Of the Plaintiffs various complaints, this Court proposes first to consider their complaint of allegedly unfair discrimination in relation to their property rights.  

RELEVANT CONSTITUTIONAL PROVISIONS.
	Article 40.1 of the Constitution provides as follows:-
1.	“All citizens shall, as human persons, be held equal before the law.
	This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function”.
	Article 40.3 provides as follows:-
3. 	1.	“The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen”.
	2.	“The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen”.

	The Plaintiffs submit that the 1989 Act is peculiar in that - while it is a public general act - it deals with one particular island.  It has the laudable aim of establishing a National Park but instead of acquiring all the land on the Island or even a particular portion of the Island it distinguishes between owners of land and subjects some owners to compulsory purchase while exempting other owners from that process.  The distinction is not based on any difference of capacity in the owners or even on the basis of their being or not being Irish citizens.  The Plaintiffs include citizens and non citizens but they all have shown their interest in the Blasket Island and its traditions.  The exempted owners, on the other hand, may include people who are not even Irish residents or citizens and who have never set foot on the Blasket Islands or in Kerry.  They are to be exempted, it is alleged, on the basis of their lineage or pedigree.  This discrimination in favour of a “pedigree folk” is, they suggest, unacceptable in a democratic society, contravenes the equality guarantee and is, at the very least, a suspect method of distinguishing between citizens outside the normal law of succession.   

	Counsel for the State submitted that people who lived on the Island prior to November 1953 have a particular contribution to make in relation to the history and culture of the Island.  But it is now 46 years - and at the time of the enactment of the Act it was 36 years - since the final evacuation of the Island.  Besides, the exemption from compulsory purchase is not merely in favour of people who were living on the Island up to November 1953, but is in favour of their lineal descendants and also of the lineal descendants of anyone who resided and owned lands on the Island at any time prior to November 1953.  It is hard to see any justification for the exemptions sweeping so widely.  

	Counsel for the State has also submitted that the mere fact that it may not be possible compulsorily to acquire lands now owned by the descendants of emigrants from the Island will itself tend to emphasise the reality of emigration and to make the Island a monument to our emigrants.  The Commissioners or the Foundation might well decide to preserve some homes or holdings to show a former way of life or they might decide to let some homes or holdings fall into dereliction to emphasise emigration but they should have at least some control over what they are doing and not have it dictated to them by the chance of whether a particular holding was or was not owned by a descendant of someone who owned or occupied and resided on lands on the Island prior to November, 1953.

	Counsel for the Appellants submitted that the exemption from compulsory purchase granted by Section 4 s.s. 2 applied only to persons living at the time of the passing of the Act or, alternatively, at the time of the serving of the CPO Notices.  It is impossible to accept this interpretation in view of the clear wording of the Section.  Alternatively, Counsel submitted that, with the passage of time, and with the lands descending to ever more remote issue the Act - though constitutional at present - might be affected by a creeping unconstitutionality.   But both the meaning and the impact of this Act are clear and the effects are clearly foreseeable.  If these effects are unconstitutional that is the end of the matter.  Legislators are not entitled to enact legislation in the hope that the clearly foreseeable effects of what they are doing will, with the passage of time, make what they are doing unconstitutional and therefore invalid.

	Counsel for the Appellants relied, in this context, on the Judgment of the High Court in Blake v. The Attorney General [ 1982] IR 117 in which it was said that legislation which was constitutional at the time of its enactment could become unconstitutional by reason of subsequent changes in circumstances.  For the reason already given, that cannot be of any assistance to the Appellants in the present case.   In this context reference should be made to Article 15.4 of the Constitution and the subsequent decision of this Court in Murphy v. The Attorney General [1982] IR 241.  However for the purposes of this case, it is sufficient to say that the Court expressly reserves for a future occasion the question as to whether the passage cited from the Judgment of the High Court in Blake v. The Attorney General correctly states the law.

CONCLUSION.
	As the learned trial Judge has pointed out, Section 4 s.s. 2 of the Act creates two categories of land owners.  The first category comprises those owners who were ordinarily resident on the Great Blasket before the 17th November, 1953, and their relatives, including their lineal descendants for all time.  The second category includes any person who is not a native resident or relative of a native resident who has bought land on the island, for example the Plaintiffs.  This introduces an unusual and dubious classification with ethnic and racial overtones.  

	Walsh J. speaking of Article 40.1 of the Constitution in Quinn’s Supermarket v. Attorney General [1972] IR 1 said:-
“...this provision is not a guarantee of absolute equality for all citizens in all circumstances but is a guarantee of equality as human persons and (as the Irish text of the Constitution makes quite clear) is a guarantee related to their dignity as human beings and a guarantee against any inequalities grounded upon an assumption, or indeed a belief, that some individual or individuals or classes of individuals, by reason of their human attributes or their ethnic or racial, social or religious background, are to be treated as the inferior or superior of other individuals in the community.  This list does not pretend to be complete.........”.

	There is no doubt that the legislature is entitled to classify the citizens into various groups for legislative purposes.

	As Barrington J. put the matter in Brennan & Ors. v. The Attorney General [1983] ILRM 449 at p.480:-
“There is a sense in which to legislate is to discriminate.  The legislature in its efforts to redress the inequalities of life or for other legitimate purposes may have to classify the citizens into adults and children, employers and workers, teachers and pupils and so on. Pringle J stated in O’Brien v. Manufacturing Engineering Company Limited [1973] IR 334 that such division of the citizens into different classes was envisaged by the second sentence of Art. 40.1.  He then added:
‘Therefore it would appear that there is no unfair discrimination provided every person in the same class is treated in the same way’.
No doubt this is true, but it might be prudent to express, what is perhaps implied in it, that the classification must be for a legitimate legislative purpose, that it must be relevant to that purpose, and that each class must be treated fairly”.

	In the present case the classification appears to be at once too narrow and too wide.  It is hard to see what legitimate legislative purpose it fulfils.  It is based on a principle - that of pedigree - which appears to have no place (outside the law of succession) in a democratic society committed to the principle of equality.  This fact alone makes the classification suspect.  The Court agrees with the learned trial Judge that a Constitution should be pedigree blind just as it should be colour blind or gender blind except when those issues are relevant to a legitimate legislative purpose.   This Court can see no such legitimate legislative purpose in the present case and has no doubt but that the Plaintiffs are being treated unfairly as compared with persons who owned or occupied and resided on lands on the Island prior to November 1953 and their descendants.

	The Court agrees with the learned trial Judge that the Act is invalid having regard to the provisions of the Constitution.   The Court agrees moreover that as the distinction between persons whose lands can be acquired compulsorily and persons whose lands cannot be acquired compulsorily is central to the Act, the Act must fall in its entirety.
	This being so the Court does not consider it necessary to discuss the other issues which were debated in the High Court.

	The Appeal is dismissed.
jb252