The Gazette 1974

The right to determine the form of Government As we have seen, by Article 6, Section 1, of the Constitution, all powers of Government, legislative, executive and judicial, derive under God from the people whose right it is to designate the Rulers of the btate, and in final appeal to decide of national policy according to the requirements of the common good, subsection 2. These powers of Government are exer- cisable only by or on the authority of the organs of the State established by the Constitution. At the same time it was decided by the Supreme Court in Byrne v. Ireland (1972) I.R. 241, that the ^tate is undoubtedly a juristic person which is vari- ously liable for the tortious acts of its servants com- mitted while in the course of employment. Cognisance should also be taken of the noble terms of me Preamble particularly its reference to "seeking to promote the common good with due observance of Prudence, justice and charity, so that the dignity and freedom of the individual may be assured, true social °rder attained, the unity of our country restored, and concord be established with other nations, do hereby adopt enact and give to ourselves this Constitution." It is thus clear that the Irish people have a right to determine their own form of Government, but only irregularly at election times and not, when they wish, oy means of the Initiative. Furthermore, by Constitu- tional Amendment (No. 4) Act 1972, the age of voters lor Dail and Presidential elections was reduced from 21 years to 18 years. The right of association The next right is that of Association contained in Article 40, Section 6, Sub-Clause 3. This Clause states that the State guarantees liberty for the exercise of the following rights subject to public order and morality namely—inter alia—the right of the citizens to form Associations and Unions. Laws, however, may be enacted for the regulation and control in the public mterest of the exercise of the foregoing right. Laws re gulating the manner in which the right of forming Associations and Unions and the right to free assembly may be exercised shall, however, contain no political, religious or class discrimination. It is known that it was mtended that the new Industrial Relations Bill should c °ntain very stringent penalties to be enforced in the ev ent of unofficial strikes, but this was found im- practicable to enforce. There is little doubt that pnofficial lightning strikes have become a very serious mipediment to the growth of our economy. It ^ould henceforth be necessary to devise some means hereby no strikes will be legal unless adequate notice ^ould officially be given by the trade union concerned. According to the Constitution Committee Report, it ^ ° u ld seem that legislation is to be drafted providing r p minimum number of members for unions, and Provision will be made to seek increased deposits for mons seeking negotiations. Apparently a Bill had been atted to minimise the decision in Educational Co. v 'Patrick (1961) I.R. 345, and to provide that Picketing would always be lawful in the interests of full nion membership, but it is more than likely that this gislation would be declared unconstitutional, "jome of the more recent Supreme Court decisions , a t l n g to Tr ade Union Law are interesting, parti- mrly as they were passed by a 3-2 majority. t l n E.I. Co. Ltd. v. Kennedy (1968) I.R. 69, Henchy a t ' i a t plaintiff company was entitled to u h investigation of the circumstances of the claim 33

for improved conditions of employment before the de- fendants could commit irreparable damage by persistent picketing, and that the defendants would not be allowed to picket in a provocative manner. However the majority of the Supreme Court (O'Dalaigh C.J., Haugh and Walsh JJ.), in allowing the appeal, held that, at the hearing, there had been prima facie evidence of a trade dispute about terms of employment and conditions of labour, and sustained the defendant's right to picket peacefully. It was also held that there had not been sufficient evidence of the continuance of the unlawful picketing which existed at first to justify granting an interlocutory injunction, although this picketing had been exceptionally violent and unruly. In Becton-Dickinson v. Lee (No. 2), unreported, 19 December 1972, the majority of the Supreme Court (O'Dalaigh C.J., Walsh and Butler JJ.) held that a separate trade union with very few members was en- titled to picket to gain recognition, despite the fact that there was a contract between the employers and two other large unions that all employees in the firm would belong exclusively to those unions. The reason- ing was that if a particular trade union was designated by workmen as their representatives in a negotiating capacity, then they are doing something connected with their employment. If an employer refuses to treat with that designated representative, then that refusal can allegedly constituted a trade dispute. This appears to give rise to the dangerous doctrine that a handful of union members in a firm can declare unnecessary strikes and then picket on the alleged ground that there is a trade dispute, thus causing unnecessary hardship. The minority views of Fitzgerald and Henchy JJ. shared in the High Court by McLoughlin J., that the purpose of the picket was to coerce the company to break their contract with the two unions with whom they had an agreement seems reasonable, and a per- petual injunction would appear to have been justified here. At present, Article 40, Section 6, purports to give an effective triple guarantee. (1) The right to Free Speech. (2) The right of Peaceable Assembly and (3) The right of Forming Associations and Trade Unions. All these rights which are not necessarily connected are most effectively hedged in with curbs and restrictions. This Section requires to be completely recast to offer ade- quate protection. It would seem that each of these three quite separate rights should be set out in completely different sections. The present right of Freedom of Association is guar- anteed by the Industrial Relations Act 1946 whereby a Labour Court is established which may issue non- enforcable recommendations in disputes between employers and workers. Furthermore, broadly speaking the excessively wide rights conferred upon Tr ade Unions under the Tr ade Disputes Act 1906 as to pro- tection of their liability have generally not been affected. However, in Educational Company v Fitz- patrick (1961) I.R. 345, it was held by the Supreme Court that it would be unconstitutional for any mem- bers of any Trade Union to compel non-members work- ing with them to join a Tr ade Union. Nothing in the Constitution should prevent the State from instituting special orders of honour, by which deeds of valour and special services to science, art and literature could be recognised.

Freedom of expression The right to Freedom of Expression is set out in