The Gazette 1974

in his opinion, not be within the competence of the Government having regard to the provisions of the Constitution. He could not presume that the Govern- ment would consciously make an acknowledgment of that kind. Accordingly he accepted the view of the Chief Justice that clause 5 represented no more than a reference to the de facto position of Northern Ireland coupled with a statement of policy in regard thereto. Mr. Justice Budd said it was to be particularly noticed that the Taoiseach had stated that none had compromised and none had asked others to compromise in relation to basic aspirations. The whole tenor was that the principal object of the conference was to see what rqeasure of agreement could be secured. The declaration would appear to be a statement on a matter of policy and it was for the Executive to formulate policy. If the Courts were to pronounce adversely or other- wise on what the Government intended to do on any matters of policy which it was in the course of formul- ating, that would be an attempted interference with matters which were the functions of the Executive and no function of the Judiciary. Court can only interfere if Government action uncon- stitutional Mr. Justice Griffin said that the Government was, by the Constitution, made responsible to Dail Eireann. Mr. Liston (for the Government) had argued that in no circumstances might the Court interfere with the Government in the exercise of its Executive functions. For the purposes of this action it was not necessary to determine this question in the form in which the argu- ment was made as the defendants needed only to show that the Court could not and should not intervene having regard to the circumstances of the present case. In the event of the Government acting in a manner which was in contravention of some provision of the Constitution it would in his view be the duty and right of the Courts, as guardians of the Constitution, to intervene when called upon to do so if a complaint of a breach of any of the provisions of the Constitution was substantiated in proceedings brought before the court. In his opinion any attempt to restrain the Govern- ment from entering into the agreement contemplated by the communique would be an unwarranted and un- justifiable interference by the courts with the organ of State to which, under Article 29 of the Constitution, the power to enter into international agreements was given. In his judgment the plaintiff had shown no cause of action. In the event it was not necessary to interpret paragraph 5 of the communique. Mr. Justice Pringle said he was satisfied that the Courts had no power to interfere with the exercise by the Government of its executive functions. [Boland v. An Taoiseach and others; Supreme Court; unreported; 1/3/1974.] High Court gives verdict against stockbroking firm. In a judgment delivered by Mr. Justice Pringle in the High Court, in Dublin, a Dublin firm of stock- brokers were found to have been "guilty of certain breaches of their duty" to a client. In the course of his judgment, Mr. Justice Pringle said that the duty of a stockbroker was the same as that owed by any other professional person. He was giving judgment in a counter-claim brought by Francis Cruess-Callaghan, a management consultant, 60

as they were relevant, not only failed to substantiate the appellant's claim that the Courts had authority to intervene or restrain the Government in the exercise of its executive function, but led to quite the contrary conclusion. In the absence of any authority to support his contention that the courts had jurisdiction to inter- vene, Mr. Sorohan had submitted that this power, while not stated in the Constitution, was to be implied. "I can find no basis upon which such a provision should or could be implied," said the Chief Justice. Clause 5 of communiqué not an agreement The Chief Justice said that in his opinion the courts had no power, either expres or implied, to supervise or interfere with the exercise by the Government of its executive functions, unless the circumstances were such as to amount to a clear disregard by the Government of the powers and duties conferred upon it by the Constitution. Continuing, the Chief Justice said that in his opinion, Clause 5 of the communiqué was not capable of being construed as an agreement. Clauses 2, 3 and 4 of the communiqué made it perfectly clear that the three parties to the conference were stating their respective distinctive positions in relation to the question of the unity of Ireland. Clause 5 contained declarations by the Irish and British governments which were clearly distinct and in no sense an agreement on fact or principle. The only words common to both declarations were "the status of Northern Ireland". If any interference was to be drawn from the method of printing the declarations side by side instead of consecutively, it must be to emphasise the distinction between them. The "status of Northern Ireland" and the acceptance of it was, to his mind, a reference to the de facto position of Northern Ireland and nothing else and the respective declarations were no more than assertions of the policies of the respective governments, matters clearly within their respective executive functions. Plaintiff's action misconceived "Consequently Clause 5, in my opinion, is not capable of being construed as any action by the Government which would bring it within the jurisdiction of the courts to supervise or restrain", said the Chief Justice. Clause 6, while expressing agreement for the making of a further formal agreement between the British and Irish governments, was confined to the incorporation of the declarations already expressed in clause 5. Clause 20, while expressing agreement to hold a subsequent formal conference for the purpose of con- sidering reports and the signing of the agreement reached, must be dependant upon the formal Con- ference in fact reaching an agreement He could find nothing in this clause which in any way modified the clear positions under clauses 2, 3 and 5 as to their declarations in relation to Northern Ireland. "I am, consequently, of the opinion that the plaintiff's action was misconceived; that the decision of Mr. Justice Murnaghan was correct; and that this appeal should be dismissed", said the Chief Justice. Clause 5 merely represents de facto position The President of the High Court (Mr. Justice O'Keeffe) agreed with the judgment of the Chief Justice and said that an acknowledgment by the Government that the State did not claim to be entitled as of right to jurisdiction over Northern Ireland would,