The Gazette 1964/67

(c) Article 30 of the Constitution of 1937 deals with the present position of the Attorney- General. Kenny J., subsequently held :— 1. The office of Attorney-General established by the Ministers and Secretaries Act 1924 was a new office created by an Act of the Oireachtas and was not a legacy from the functions of the Law Officers of the Crown. 2. The powers conferred upon the Attorney- General by Article 30 of the Constitution of 1937 include the powers conferred on him by virtue of the Ministers and Secretaries Act 1924. (3) The concept of granting the fiat may have come from the royal immunity from being sued in Courts of Law, but it is not the same fiat. 4. The cause of action given by the Ministers and Secretaries Act 1924 is not a new cause of action, even though henceforth proceedings are instituted by summons or civil bill instead of by petition, as the essential nature of the remedy is unchanged, and therefore the citizen is not obliged to take it subject to the condition imposed. 5. The necessity to obtain the fiat of the Attorney-General is not inconsistent with Article 40, Section 1 of the Constitution which provides that—"All citizens shall, as human persons, be held equal before the law." Although it was contended that the State was in a privileged position, the guarantee given in this Article relates only to the position of a citizen as a human person, and not as a person in an official capacity like a Minister. 6. The function of the Attorney-General in granting or withholding the fiat is not an ad ministration of justice, as he has complete and unfettered discretion. 7. The contention that the requirement of a fiat for an action against a minister of State was a denial or an unnecessary interference with the rights of the citizens to have recourse to the Courts to vindicate their rights was justified, on the following grounds :— (a) Article 40 Section 3 of the Constitution provides : 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 citizens. 2. The State shall, in particular, by its laws, protect as best it may from unjust attack and, in case of injustice done, vindicate the life, person, good name and property rights of the citizen. (b) This guarantee applies to all laws passed by the Oireachtas since the foundation of the State in 1922. 11

(c) The very nature of the fiat is a power at the unfettered discretion of the Attorney-General to give or withhold a right to have recourse to the Courts to assert or vindicate a right. (d) The guarantee in Article 40 Section 3 of the Constitution is not limited to the rights men tioned specifically in the Constitution but extends to other personal rights of the citizen which flow from the Christian and democratic nature of the State—because many personal rights of the citizen —such as the right to free movement, and the right to marry—are not specifically mentioned in Article 40. (e) If the High Court has full original juris diction to determine all matters under Article 34, Sectiion 3 (1) of the Constitution, it must follow that the citizens have a right to have recourse to that Court to question the constitu tional validity of any law, or to assert or defend an unspecified constitutional right. (f) Section 2 (1) of the Ministers and Secre taries Act 1924 does not respect the personal right of the citizen to have recoruse to the High Court when he wishes to bring proceedings against a Minister of State. (g) The necessity to obtain the fiat before instituting proceedings against a Minister of State is a failure by the State to defend and vindicate one of the personal rights of the citizen. (h) It follows that Section 2 (1) of the Ministers and Secretaries Act 1924 is repugnant to the Constitution in so far as it requires the fiat of the Attorney-General to be obtained be fore proceedings in the High Court can be validly instituted against a Minister of State. (Macaulay v. The Minister for Posts and Tele graphs—unreported decision of Kenny J., 14th February 1966). Note—It is understood that no appeal against this decision will be made to the Supreme Court. Solicitor's Negliegencc The plaintiff employed the defendant to act as her solicitor in the conduct of a matrimonial suit brought against her by her husband for divorce on the ground of desertion. In October, 1961, the husband obtained a decree nisi, the suit being heard as undefended notwithstanding that his solititors had given the defendant some partic ulars of adultery on the husband's part, which had caused him to amend his petition to ask for the exercise of the court's discretion, and that the plaintiff had instructed the defendant to obtain disclosure of the adultery so that she could pray for divorce. The court found negligence