The Gazette 1972

EDITORIAL

Constitutional Implications of the Third Amendment Bill

neutrality in time of war, specifically amended the definition of "time of war". In the Schedule to the Second Amendment to the Constitution Act, 1941, each deletion or variation was specifically referred to by reference number. It is difficult to see why these prece- dents were not adhered to in this instance as it is quite clear that by way of a simple explanatory memorandum the average voter would be in a position to grasp the effect of each separate amendment. An interpretation by the Supreme Court would appear to be desirable particularly as the issue has never been ruled on. It is known that, by virtue of Article 235 of the Treaty of Rome, the Council of Ministers are given the right to enact any legislation necessary to achieve the aim of economic harmony under the Treaty. It may be thought that no legislation detrimental to Irish interests could be passed, in view of the fact that the Ministers have to be unanimous, but it is well known that pressures can be brought against recalcitrant Minis- ters. Whether one is a protagonist or an antagonist of the Community, constitutional propriety demands that each amendment necessary to enable us to enter the Community should be clearly and unequivocally spelled out.

The Third Amendment to the Constitution Bill enables the State to accede to the Treaties relating to (1) The European Economic Community; (2) The European Coal and Steel Community; and (3) The European Atomic Energy Committee. This is in the form of an additional sub-section to Article 29, which relates to international relations. The final sentence of the amend- ment reads : "No provisions of this Constitution invali- dates laws enacted, acts done or measures adopted by the State necessitated by the obligations of membership of the Communities, or institutions thereof, from having the force of the law in the State." It was already pointed out in the January Gazette that it was unwise to substitute a wide omnibus amend- ment to replace specific amendments relating for in- stance to the powers of the Oireachtas and of the Supreme Court. It was also stressed that fundamental rights should be specifically protected. This appears to be reinforced bv the Irish version of Article 46 of the Constitution, which suggests that the Constitution can be amended only disjunctively, either by variation or bv addition, or by repeal in respect of each amendment. The First Amendment to the Constitution Act, 1939, which was specifically passed to protect our status of

Legal Protection of Detainees The absolute independence of the Judiciary in Northern Ireland has been amply demonstrated recently. Not only has Judge Conaghan awarded the maximum amount within his jurisdiction to a detainee for brutal ill-treatment by the authorities, but also the Northern Court of Appeal in ( R ) Hume v Attorney-General has unanimously found a vital regulation unconstitutional. There it was held that the British Army as "security forces" could not legally be included in the term "Com- missioned officers of Her Majesty's Forces" in Regula- tion 38 (1) issued under the Civil Authorities (Special Powers) Acts which authorise the police to quell a riotous assembly on the ground that the Regulation infringed the Government of Ireland Act, 1920, as that Act gave no power to the Northern Ireland Parliament to make anv regulations concerning the British Army. The effect of this judgment was that John Hume and

others had been improperly convicted of riotous assem- bly in Derry and that their convictions were subse- quently quashed. However, by having the Northern Ireland Act, 1972, passed in a few hours, the British Govern- ment tried to set at naught the effect of this judgment. As Mr. Boyle has shown, it is doubtful whether this legislation is valid, particularly as it purported to amend the Government of Ireland Act, 1920. Professor Pallev has shown the enormous powers wfiich the Stor- mont Parliament now possesses over the British Army- Let us hope that this outrageous legislation will also be found invalid soon. Note —This Editorial was written before Mr. Heath announced the imposition of direct rule upon Northern Ireland on March 24th. 66