The Gazette 1972

CORRESPONDENCE Amendment of the Constitution 79 Barton Drive, Rathfarnham, Dublin 14.

Community de facto makes that Court the interpreter of our Constitution under the proposed amendment. This, surely, is an aspect of the matter requiring pause and reflection. Indeed the blanketing and indiscriminate nature of the amendment raises, at this state, the ques- tion whether this form of amendment is in itself un- constitutional. Another fundamental issue is the absence of demo- cratic and constitutional control over the actions of our Minister in the Council of Ministers. By virtue of Article 235 of the Treaty, described elsewhere as 'Henry VIII Clause', our Minister by unanimous agreement with his colleagues in the Council, can procure the enactment of any provision necessary to achieve the aims of the Treaty, and there is, apparently, no con- stitutional means of controlling this executive action- This is a most dangerous departure from the safe- guards enhrined in our Constitution. (The law on 'European companies' has, I understand, been intro- duced under the powers conferred by Section 235). These are but a few of the major issues, which in addition to fundamental rights, are raised by the Government's proposals. As the aim of the Treaty of Rome is to progressively approximate the economic policies of Member States, we may sadly conclude that the shape and style of our Constitution is to be re- moulded in the procrustean design of Common Market economics and bureaucratic requirements.

The Editor of the Gazette, Incorporated Law Society, Dear Sir,

I wish to commend your courage in challenging the proposed amendment to the Constitution which has been put forward by the Government and supported in a slightly altered form by Fine Gael. You say that the amendment is unduly wide and unnecessary and with this I wholeheartedly agrée. How- ever, your implied suggestion that an amendment which would exclude fundamental rights from its operation could be supported, is questionable. Articles 1 and 2 proclaim respectively the sovereignty of the Irish nation and define its territory as 'the whole island of Ireland, its islands and the territorial seas'. Should it transpire that the third amendment has abrogated that claim in any way, future generations will not thank us. Indeed, in view of the short history of our State, those who reside or work in the Four Courts should show very great caution when implying that these articles are not important or relevant to-day. The substantial transfer of power from national in- stitutions to the E.E.C. requires, I suggest, a very careful approach to Constitutional amendments. What will be the effect of the proposed amendment on Article 28. 3. 1., which states that 'War shall not be declared and the State shall not participate in any war save with the assent of Dail Eireann'. And how will the amendment affect the provisions of Article 29 (paras 5 and 6) which concerns International Agree- ments. Neutrality appears to be ruled out by the Treaty of Rome. A safeguard in the amendment would appear necessary. The transfer of all questions of interpreta- tion of the Treaty of Rome to the Court of the European

To put it another way. Our Constitution is to be prised open by a powerful economic instrument. For the sake of future generations we must sincerely hope that by assenting to it we are not opening a Pandora's bos, which will have unsavoury, uncontrollable and un- foreseeable Constitutional consequences. Yours sincerely, Franklin J. O'Sullivan (Solicitor). Hotel Licences and Publican's Licences 20th December 1971 to The Secretary Incorporated Law Society Dear Mr. Plunkett,

receipt of this notice by the Gardai authorities, the Superintendent phoned the solicitor and informed him that the licence attaching to the hotel was not a pub- lican's licence but a hotel licence. Enquiries were made at the local District Court Office when the official there confirmed that the licence was in fact a publican's licence according to the records in his office. The soli- citor informed the Garda Superintendent of this fact, but the latter indicated that reference should be made to the original order made by the Circuit Court on the granting of the licence approximately fifteen years pre- viously. On enquiring at the Circuit Court Office, the solicitor was informed that the order in fact was for a hotel licence. The Gardai then moved in on the prem- ises and informed the proprietor that he would have to cease operating the bar. The sequel to this case was 60

Recently I came across a case which I think would be of great interest to the profession. A colleague pur- chased a hotel to which was attached what was described as a publican's licence. The sale was com- pleted in the normal way and the licence duly trans- ferred to the new owner of the hotel. Some time later the owner of the hotel decided to extend his premises and instructed his solicitor to apply to have the licence expended to cover the new buildings. The usual statu- tory notice was served on the Guards, the District Court Clerk and other appropriate authorities. On