The Gazette 1974

the old six EEC states) represent a huge body of experience and expertise, which should be used for the Community's benefit. The Commission does not want to inhibit improvements in national company law, or to inhibit lawyers in developing new arrangements. Lawyers in the new member countries should recognise that their company laws have weaknesses which are

more obvious to foreign lawyers than to themselves. To ensure interpenetrat'.on of economies, pitfalls for in- vestors had to he eliminated. But there is no reason to replace the principles of Irish law with other prin- ciples. Irish lawyers could contribute to the marriage of Irish and Continental law.

KENNY REPORT ON PRICE OF BUILDING LAND Submission to the Minister for Local Government by the Incorporated Law Society By Article 35, Section 2, the Constitution establishes an independent Judiciary. The three cases we refer to are Byrne v. Ireland (1972) I.R. 241, O'Brien v. Keogh (1972) I.R. 144 and McGee v. Attorney General, unreported, Judgment in which was delivered on 19 December 1973.

These cases are extremely important because they indicate the high duty the Supreme Court appears to place on the Oireachtas in relation to the protection of property rights. The Majority report does not deal with the interest- ing developments 'relating to the right of private pro- perty contained in the decisions of Byrne v. Ireland and O'Brien v. Keogh and seeks to make use of the Attorney General v. Southern Industrial Trust Limited in support of their argument that their proposals are not unconstitutional while the same case was subse- quently criticised in both the High Court and the Supreme Court. Danger of extending High Court jurisdiction It is vital to the welfare of the State that the Courts should retain their independence of the Executive and should be known and seen as a force to protect the rights of the individual against any invasion of the individual's rights by the State. The Majority report at page 64 quotes from a writing of Lord Devlin which in our view underlines the dangers of entrusting a new controversial jurisdiction to a Senior Court of Law. Lord Devlin wrote : "It is a wise instinct which has led Governments so often to entrust the initiation of new and untried jurisdictions, even when uncontroversial, to Statutory Tribunals. Non-compliance with the Tribunal's Order is of course an offence but it is the Executive who prosecute and the police, not an Officer of the Court, who act. The High Court plays a remote and supervisory role; and if the Tribunal suffers from the embroilment, the prestige of the Court is not in- volved." The Majority report considered that the advantages of a Statutory Tribunal would be obtained if the Judge exercising the new jurisdiction was obliged by the Act to sit with two Assessors, one with Town Planning experience and the other with qualifications in valua- tion matters. We do not share the views of the Majority Committee and believe that if the High Court is made use of in the way suggested that the independence and dignity of the Court will be seriously damaged. In support of this statement we will examine the "machinery" by which an application will be brought before the High Court. It is proposed that each Local Authority would have power to apply to the High Court to designate areas 274

The powers of the Judiciary and the Executive are absolutely separated and one of the major functions of the judicial arm of the State is to protect the individual against the encroachments of the Executive. The majority report of the Committee on the price of building land ("the majority report") refers in the chapter entitled "The Constitution" to that part of the Constitution under the heading of "fundamental rights" and refers in particular to Articles 40 and 43. At paragraph 87 on pages 45 and 46 the relevant articles of the Constitution are set forth. At page 49, paragraph 93, the majority report state that they propose that the High Court should be authorised to operate a form of price control in designated areas, ". . . the proposal involves a delimitation of property rights but one which is no more restrictive than other forms of price control". At page 52, paragraph 100, however, the majority clearly and unmistakeably set forth that they are of the opinion that the price control which they envisage is such that "its exercixe could affect in a far reaching way the fortunes and property of the owner" and that therefore it would be unconstitutional having regard to Article 37 of the Constitution unless exercised by the High Court. What the Majority report makes clear is that be- cause the powers they wish to give to Local Authorities to "designate" areas could affect in a far reaching way the fortunes and property of land owners, a new jurisdication must be conferred on the High Court to overcome what would otherwise be unconstitutional. We have doubts that such a new jurisdiction would be held to be constitutional because in its efforts to be so, it may itself erode the fundamental rights of the indivi- dual under the Constitution. Indeed, the decisions reached by the Supreme Court in three recent Constitutional cases would seem to indicate that the reasoning in the Attorney General v. Southern Industrial Trust Limited (1960) 94 I.L.T.R. 161 (which is relied upon by the Majority report in the Chapter entitled "the Constitution") will not be followed in subsequent cases. In fact in the case of Central Development Association Limited v. The Attorney General (Judgment given in the High Court on 6 October, 1969) Mr. Justice Kenny considered that the Supreme Court wrongly interpreted the Con- stitution in the Southern Industrial Trust case.