High Court of Ireland Decisions

1. The Blasket Islands lie off the coast of the Dingle Peninsula in County Kerry. The seven islands and several islets and rocks are in the barony of Corca Dhuibhne on the north side of the entrance to Dingle Bay. As one looks out at the archipelago from Slea Head below Mount Eagle on the peninsula, Innisvickillane is to the south-west; Innisnabro to the west; and further west, behind the Great Blasket is Tiaracht, which has a lighthouse; to the north, lies Inis Tuaisceart; and off the east of the Great Blasket are Beiginis and Oiléan na nÓg. The Great Blasket, or An Blascaod Mór, is across the Blasket Sound from Slea Head and is a narrow island about five kilometres long by one kilometre wide. It is the largest of the islands with the remnants of a village behind the beach known as the White Strand or Trá Bán at the east end closest to the mainland. Although the island, at its closest point to the mainland, is only just more than one kilometre off Dun Mór Head, it is a sea journey of about five kilometres from the harbour at Dun Chaoin to the small breakwater below the village. The seas in the Blasket Sound can be treacherous. Access on to the cliff girt Blasket Islands, with the exception of Beiginis, is difficult.

2. In the 19th century, the population of the islands seems to have varied between about 100 in 1861 and 150 in 1901. In 1916, Tomás Ó Criomhthain, in a letter to Robin Flower, wrote that there were 176 people in the islands. The islanders used currachs called naomhóg. They lived by fishing and by hunting seals, birds and rabbits and by collecting birds' eggs. By 1939, the population had dropped to under 100 and, by 1947, there were only 50 people. The salt laden gales prevented trees growing on the islands, but the community on the Great Blasket produced an extraordinary literary legacy. Their books about their island life have been recognised as an unique and vibrant literary flowering. This included three famous autobiographies: Twenty Years A-growing by Muirís Ó Sullivan, An Old Woman's Reflections by Peig Sayers, and The Island Man by Tomás Ó Criomhthain. These writers of international renown inspired others of the islanders to write. The islands also attracted a number of remarkable scholars from abroad including Carl Marstrander, Robin Flower and George Thomson, who all encouraged the islanders to write of their own community and the

3. The Plaintiffs, within the last 25 years, have become entitled to many areas of land in the village on the Great Blasket and the first four Plaintiffs are entitled to 17/25ths of the great commonage which is 1,060 acres of the 1,132 acres of the entire island. Dr. Matthias Jauch, the fifth named Plaintiff, is a lecturer at University College Cork and is a brother of the late Arne Jauch who was the owner of an undivided moiety with Muirís Cleary in two registered holdings in the village and "fine lands" along with an unregistered holding which includes a comparatively modern beehive hut and also the old post office building. Their registered holdings included 2/25ths of the great commonage. The "fine lands" are the fertile but separated plots behind the strand. The late Arne Jauch and another brother, Tilman Jauch, often stayed on the island and were both drowned while fishing in the seas off the Great Blasket in 1978.

4. On 7th June, 1989, An Blascaod Mór National Historic Park Act, 1989 (No. 11 of 1989) was enacted. This "1989 Act", among other things, made provision for the acquisition, by agreement or compulsorily, of any land situated on the island. The Plaintiffs had been for some years the largest owners of the land and buildings on the Great Blasket

5. A synopsis of the background to the passage of the Act and the history of how the Plaintiffs acquired their lands on the Great Blasket may assist in an understanding of the grounds for the challenge to the constitutionality of the Act.

6. In this century, many of the Blasket islanders left the islands for the mainland and some emigrated particularly to Massachussetts in the U.S.A. The final evacuation of the last 20 inhabitants took place with government assistance on 17th November, 1953. In the early 1970s, an American national and Irish citizen of colourful personality, Taylor Collings, began to purchase properties on the Great Blasket from the former inhabitants. He was attracted by the beauty and history of the area and the cultural traditions of the Corca Dhuibhne region. He and his wife spent a considerable amount of time, energy and money in restoring some of the houses on the Great Blasket and he was assiduous in tidying up refuse which had accumulated on the island and in trying to preserve the buildings in the village from depredation. In January 1972, Mr. Collings sold half of his interest in the properties which he had purchased on the Great Blasket to Phillips Brooks, an American diplomat, and, in September 1972, he sold his other half interest to Peter Callery and James Callery, the second and third named Plaintiffs. Phillips Brooks died in January 1975 and his interest passed to his widow Kay Brooks. Most of the property formerly held by Taylor Collings has since been transferred to the first named Plaintiff, An Blascaod Mór Teoranta, which was incorporated in September 1972. The first four Plaintiffs are by far the largest owners of land

7. It is specifically pleaded that the Minister for the Gaeltacht at the time of the preparation and passing of the 1989 Act had an interest himself in the Blasket Islands. The aspect which has concerned the Plaintiffs is that, in or about 1974, the island of Innisvickillane was purchased by a company under the control of Charles J. Haughey (the then Minister and Taoiseach) or members of his family. A dwelling house has since been built by them on that island. Part of the Plaintiffs' contention is that if a national park is appropriate, then it should comprise the entire of the Blasket Islands and in particular Innisvickillane should not be excluded as it has monastic remains and a role in the folklore tradition of the Blaskets. About that same time, in or about 1975, the Office of Public Works made it known that it had an interest in buying property on the Great Blasket and in fact purchased one holding from an islander known as "Kearney the Yank" and this comprised a house property in the village together with some fine lands and a 1/25th interest in the great commonage. This holding has been left untouched and deteriorating since the purchase but does ensure that the State has had a property in the village.

8. The 1989 Act is confined in its operation to the Great Blasket and does not extend to any of the other islands or the adjacent mainland being all in the Corca Dhuibhne area. The Plaintiffs make a series of complaints about this Act and seek declarations that the sections of, and the entirety of, the Act are repugnant to the provisions of the Constitution. The action has given rise to three judgments, the first by Murphy J. in respect of discovery of documents, the second delivered by Kelly J. on 18th December, 1996 in respect of a series of

9. The first named Plaintiff, An Blascaod Mór Teoranta, is the registered owner in respect of the lands in 15 folios and claims beneficial ownership of several more properties and is registered as the owner of 9/20th undivided shares of the lesser commonage besides being the owner of 17/25ths of the greater commonage. A map which was referred to as the "Patchwork Quilt Map", on which the property of the company is coloured pink and blue, with the lesser commonage in brown, and the interspersed properties depicted in white (not owned by the company) gives an helpful visual indication of the village and fine land properties at the back of the White Strand. The landing area is to the south of this map and one can also see the two pathways running roughly from south to north traversing the hillside.

10. The second named Plaintiff, Peter Callery, was brought up in County Roscommon and has practised as a solicitor in Dingle, County Kerry, for more than 30 years having come there in 1963. His office, Murtagh E. Burke & Co., acted for Taylor Collings in the purchase of property on the Great Blasket. Taylor Collings, in or about 1970, had come to the island and found it to be uninhabited with the buildings deteriorating. For over 18 months, Taylor Collings and his wife worked energetically on restoring the buildings and

11. Efforts to preserve and restore the houses of the Blasket writers are part of the background to the present case. The State could have taken the steps which were taken by Taylor Collings and his wife to purchase the deserted homes of the former inhabitants but chose not to do so except in the one instance. No money has been spent on the restoration or preservation of that one property but this is perhaps explicable in that the property was acquired so that the State would have an interest on the island and any overall scheme for preservation of the village by the Office of Public Works would probably be based on careful and considered plans. However, as the years have passed and the deterioration of the authors' homes progresses, one might be forgiven for fearing that the village houses on the Great

12. Blasket may suffer by delapidation and by sinking into a waterlogged hillside. In 1973 overtures were made by the Office of Public Works in respect of purchase of lands on the island but a meeting by Peter Callery with an official proved inconclusive. It is significant that Peter Callery offered cooperation on the part of his clients in respect of works intended on the island and in particular the restoration of buildings, however this offer was then and since refused by the Defendants. On 13th April, 1984, the Office of Public Works wrote to Peter Callery as solicitor indicating that the Commissioners of Public Works intended to acquire all the lands on the island and to develop them in the national interest so that they would be available for all to enjoy. Neither at that stage nor before enactment of the 1989 Act were offers were made by the State or the Office of Public Works. It was suggested in evidence that the first four named Plaintiffs were prepared to sell all their commonage and most of their other lands voluntarily and to cooperate in relation to the restoration of houses some of which they have preserved and kept in a usable condition out of their own resources for over 20 years. I accept their evidence and it is noteworthy that at no stage did the Department of the Gaeltacht or any other State agency write to the Plaintiffs setting out the reasoning behind the need for acquisition of the Plaintiffs' lands for a national historic park or seeking their cooperation in respect of this objective.

13. In about 1986, a private association called Fondúireacht an Bhlascaoid Teoranta ("the Foundation") was established being a company limited by guarantee incorporated under the Companies Acts. The directors and members of the Foundation, under the chairmanship of the late Patrick J. Moriarty, Chairman of the ESB, have played a considerable role in encouraging the setting up of a Visitor Centre at Dun Chaoin to demonstrate the literary heritage and way of life of the former inhabitants of the Blaskets. The Foundation has been influential in advising and has also funded and commissioned

14. In 1985, the first four Plaintiffs contemplated selling their interest in the Great Blasket and had caused an advertisement to be published in the Wall Street Journal through Michael Collins, an Irishman who was working as a realtor in the United States. At this time, Peter Callery was approached by members of the Foundation and was asked to defer any sale of the property. The first to fourth named Plaintiffs agreed to this postponement at the behest of the Foundation in the expectation and on the understanding that an offer would subsequently be made for their interest. No such offer was forthcoming. Instead, in May 1989, the 1989 Act was introduced in the Seanad and was passed in both Houses of the Oireachtas and was enacted into law on 7th June, 1989. It emerged in evidence that while the agents of the Defendants conferred at no less than 43 meetings with members of the Foundation in West Kerry, there was no communication made on the part of the State with the Plaintiffs in respect of the imminence and content of the 1989 Act, despite the fact that as Michael Begley put it "the dogs in the street in Dingle knew that Peter Callery was involved in the first Plaintiff". In any event, the State authorities were well aware that Peter Callery was the solicitor who represented the interests of An Blascaod Mór Teoranta and the other Plaintiffs. Furthermore, the offer of future cooperation made by Peter Callery on behalf of the Plaintiffs in 1973 would have been on the files of the State authorities.

15. The 1989 Act is unlike any other Irish statute in a number of respects. It provides for the establishment and maintenance on the Great Blasket island of a national historic park. The long title reads as follows:-

16. From the title and tenor of the 1989 Act it is clear that the role envisaged for the Foundation is unusual and significant.

17. Compulsory acquisition notices dated 4th March, 1991 were served on the Plaintiffs. The Plaintiffs took objection to the compulsory acquisition of their property on a number of grounds. On 7th May, 1991 a plenary summons issued challenging not only the validity of the compulsory acquisition notices but also the validity of a number of the provisions of the 1989 Act as being repugnant to the provisions of the Constitution of Ireland. A judgment of Mr. Justice Peter Kelly was delivered on 18th December, 1996 in respect of a number of preliminary issues. The Act contained no express provision permitting the making of regulations of the type contained in S.I. 340 of 1990. Having stated that it was not for the Court to act as a revising chamber for ill drafted legislation such as the Act in suit, Mr. Justice Kelly decided that the Court does in general have jurisdiction to infer that Parliament

18. The fifth named Plaintiff and his co-owner, Muirís Cleary, each received a letter dated 28th February, 1991 from the Heritage Service of the Office of Public Works. The letter to Dr. Jauch is worth quoting in part:-

19. This letter may well have been sent to Dr. Jauch and Muirís Cleary in error under the misapprehension that they were owners of land to which compulsory acquisition powers did not apply by reason of the lands being owned or occupied by persons within the exemption in section 4(2) of the Act, i.e. those who before 17th November, 1953 were "ordinarily resident on the island" and their relatives. In fact, neither Dr. Jauch nor Muirís Cleary, despite both having considerable personal involvement with the Great Blasket, were within the category of exempted person and indeed on 8th April, 1997 second sets of C.P.O. notices were served on the fifth named Plaintiff and on his co-owner, Muirís Cleary.

20. The Plaintiffs contend that the 1989 Act in reality targets the Plaintiffs and that they will be deprived of all their property on the Great Blasket whereas other landowners with substantial holdings in the village and fine lands will be excepted and will be able to sell on the open market. The Plaintiffs submit that at the very least they should have been given advance notice of the 1989 Bill and should have been given an opportunity to make

21. The headings under which the several grounds of constitutional challenge are mounted can be set out in summary as follows:-

22. Infringement of property rights (apart from any question of discrimination) because of

23. Infringement of guarantees of equality and property rights, i.e. Articles 40.1 and 40.3.2, on the grounds that

24. The Plaintiffs submit that there was an infringement of fair procedures because the 1989 Act in substance is a "private Act" of the Oireachtas but none of the usual protections accorded in respect of a private Bill were invoked. The Plaintiffs also submit that the role of the Foundation was objectionable because some of the members were heavily involved in procuring and drafting the Act and this very lobby group has been given statutory rights of consultation and administration notwithstanding that neither the Foundation nor any of its members had any significant proprietary interest in the island.

25. The Plaintiffs object to the mechanism prescribed by section 4(3) and paragraph 5(2) of the schedule to the 1989 Act in respect of the assessment of compensation on the basis of the repugnancy to the Constitution of provisions of the 1919 Act .

26. Paragraph (5)(2) of the Schedule to the 1989 Act states that the compensation to be paid under this paragraph in respect of any estate, right, easement, title or interest of any kind in, over or in respect of land shall, in default of agreement, be determined by arbitration under and in accordance with the Acquisition of Land (Assessment of Compensation) Act, 1919. The Plaintiffs object to this incorporation into the 1989 Act of the 1919 Act provisions on the grounds that:-

27. The Plaintiffs suggest that there is no access to the Courts otherwise than by way of a limited Case Stated on a point of law. The Plaintiffs also contend that the assessment of compensation for expropriation of land is not an administrative matter but is justiciable exclusively in the Courts.

28. The Plaintiffs challenge the allocation to the Foundation by section 5(2) of the 1989 Act of certain functions under the Act as being an impermissible delegation of executive power to an entirely private association, the members, directors or managers of which are not accountable to the public or to duly elected representatives.

29. The Plaintiffs challenge section 5(4) which authorises the Minister by order to amend the Act in any way he considers expedient as being an impermissible delegation of legislative authority equivalent to an "Henry VIII clause".

30. The Plaintiffs also contend that there was a lack of fair procedures in that prior to issuing the C.P.O.s there should have been communication with the Plaintiffs with regard to the reasons for and objectives of the intended park so as to afford an opportunity to the Plaintiffs to make representations in respect thereof. The first four Plaintiffs also contend that their offer to consent to arbitration by an international expert valuer should have been given serious consideration by the Office of Public Works. It is also contended that Dr. Jauch should have been given advance notice and an opportunity to make representations in respect of the C.P.O. notice that was served on him around 28th April, 1997 particularly in the light of the false sense of security which had been engendered in him by the letter dated 28th February, 1991 from the Heritage service.

31. The Plaintiffs contended that there was discrimination in that the first four Plaintiffs' lands were subjected to C.P.O.'s in 1991 whereas only the commonage lands belonging to Dr. Jauch and Muirís Cleary were similarly

32. An issue has arisen between the parties as to whether the Court should defer dealing with the arguments in respect of the repugnancy of the 1919 Act since the question of compensation can only arise if the 1989 Act is found to be valid despite the various challenges. Counsel for the Plaintiffs points out that this issue only comes into play as a sequel to a finding that the 1989 Act is valid; he submits that their challenge to the 1919 Act represents their "fall-back position" and is necessary because it is incorporated into the 1989 Act. From a practical point of view, the Court has to deal with such a plethora of points in this case that there is much to be said for deferring consideration of the validity of the 1919 Act for the present. One practical advantage of exercising judicial self-restraint in respect of tackling these issues is that the 1919 Act is being constantly invoked and any finding with regard to its repugnancy would have widespread reverberations affecting much litigation and many arbitrations. Counsel for the Defendants on the other hand has argued cogently that this Court should hear all the arguments and decide on this issue as well and has submitted that if the Court defers giving a decision on this aspect then this might lead to a further delay in the conclusion of the eventual outcome of the case. I am conscious of the view that the question of assessment of compensation logically follows as a second step and that the primary matter should be dealt with fully before any decision is given in respect of the 1919 Act in view of the widespread repercussions of any decision undermining the validity of the 1919 Act. However, Counsel for the Defendants argued convincingly that this aspect should be confronted as well as the other challenges for reasons of convenience, practicality and expedition. The evidential background has been adduced, the contrary arguments made and this aspect also should be dealt with and concluded.

33. A further issue arose with regard to the Plaintiffs' claim for damages. It would seem that two questions arise with regard to this aspect, namely,

34. I expressed the view at an early stage of the case that the arguments in respect of this aspect should be deferred until after a decision with regard to the question of the validity of the 1989 Act. After all, if the 1989 Act is valid in its entirety, then the Court would not have to consider the above two questions posed as the question of damages would not arise.

35. An Blascaod Mór National Historic Park Act, 1989 was enacted on 7th June, 1989. It contains the long title which I have already quoted and ten sections together with a schedule dealing with compulsory acquisition of land. While it was passed by the Oireachtas as a public general Act, nevertheless it contains some highly unusual provisions particularly those relating to compulsory acquisition. I have already adverted to some of the strictures on this Act made by Mr. Justice Kelly in the course of his judgment with regard to the question of whether the regulations and notices thereunder were ultra vires. The Act contains only ten sections and has already spawned three judgments. Several sections are the subject of cogently argued and substantial challenge by the Plaintiffs. The first section is an interpretation section; "the Commissioners" means the Commissioners of Public Works in Ireland; "the island" means An Blascaod Mór; "the Minister" means the Minister for the Gaeltacht; "the Park" means An Blascaod Mór National Historic Park established by section 2. It is interesting to note in passing that the role of the Foundation was envisaged in section 1 of the 1989 Act as covering not only the Great Blasket but Corca Dhuibhne generally being not only the archipelago but also the mainland area on the other side of the Blasket Sound. One of the points made by the Plaintiffs (see (b)(iv) above) is that the Act by singling out the Great Blasket is under-inclusive and discriminatory and that any such legislation for the preservation and protection of the Blasket culture should include the entire archipelago and

36. Section 2 is important from the point of view of the intention of the Oireachtas.

37. Subsection (3) deals with the Commissioners' duties and reads:-

38. I have quoted this section in full as there is a conflict between the parties as to the meaning and as to the scope of the phrase by reference to time of "a relative of a person" and also because the Plaintiffs challenge the constitutionality of the powers of acquisition. They strongly contest the validity of the exemption contained in section 4(2)(a) of land owned or occupied by certain persons (pre-17th November, 1953 residents) or in their stead relatives of their lineage.

39. Several features of this Act are abnormal. First, the phraseology is highly unusual for an Act containing powers of expropriation as this Act is not couched in general terms with application throughout Ireland or even affecting all the islands off the western seaboard but, on the contrary, the focus is on one island in a group of islands off County Kerry. This is borne out by the first part of paragraph (1) in the schedule which reads:-

40. While no question is raised at this stage with regard to notice of the map or plan of the land, one would have thought that the map or plan would have been available for inspection either at Dingle or Ballyferriter or at both Garda stations. More significantly, there is an objection procedure whereby the occupier or owner of land in respect of which a notice has been published may submit to the Commissioners an objection in writing to the proposed compulsory acquisition and, if such objection is not withdrawn, the objection should be considered by the Minister and the land shall not be acquired compulsorily without the consent of the Minister. Since the evidence in the case made it clear that the Commissioners were serving the notices on the directions of the Minister, this may seem at first to be a strange procedure but may be explicable as giving the Minister a role with regard to the workings of the exemption in section 4(2)(a) of the Act.

41. In answer to my question as to whether Counsel were aware of any statute compulsorily acquiring specific heritage land in this State, I was informed that this Act was unique. The National Monuments Acts, 1930 to 1987, the Heritage Act, 1995 and the National Cultural Institutions Act, 1997 are all statutes of general application rather than being aimed at a specific target. Phoenix Park, St. Stephen's Green and in Kerry, Derrynane House and the Muckross Estate, all came into State ownership either by gift or by voluntary acquisition. Many instances come to mind of heritage properties in private hands with access for the public and I was told that, in the North of Ireland, heritage properties are often owned by the National Trust but inhabited by their former owners. The 1989 Act is particularly unusual in that one small group of landowners may be expropriated whereas another group of

42. Early on in the case, Counsel for the Defendants made it clear that objection would be taken to the admissibility of much evidence proposed to be adduced by the Plaintiffs. This was dealt with in the judgment dated 17th June, 1997 and by certain rulings thereafter including a ruling on 1st July, 1997 that the Plaintiffs had laid the ground for the production in evidence of An Blascaod Mór National Historic Park Bill, 1989 as initiated in the Oireachtas. The Bill was handed in after reference to section 5 of the Documentary Evidence Act, 1925. Other rulings were made to the effect that the ground had not been laid for the admission in evidence of the record of the debates in the Seanad or Dáil.

43. A further challenge was made by Counsel for the Defendants at the outset of the case in respect of the locus standi of the Plaintiffs to attack the validity of the Act and also as to the readiness and maturity of their grounds of challenge. Counsel for the Defendants relies on Madigan -v- Attorney General [1986] I.L.R.M. 136, Norris -v- Attorney General [1984] IR 36 and Cahill -v- Sutton [1980] I.R. 269 for the propositions that in respect of certain aspects of the Plaintiffs' challenge to the provisions of the 1989 Act either the Plaintiffs have no locus standi to make the challenge or else their challenge is premature. In Madigan's case, the plaintiffs' attack on the constitutionality of the residential property tax was held to be confined to their own circumstances; they were not entitled to suggest hypothetical circumstances under which the Finance Act, 1983 would operate particularly unfairly. Similarly, in Norris -v- Attorney General [1984] IR 36, Senator Norris as a declared homosexual was not entitled to make the argument that parts of the 1861 Act, which were being challenged, encroached on the right to marital privacy.

44. Three principles emerge from the cases on locus standi. Firstly, the Courts will only entertain a constitutional challenge to legislation where it is demonstrated that the litigants' rights have either been infringed or are threatened (see Cahill -v- Sutton ). Secondly, the Courts will only listen to arguments based on the plaintiff's own personal situation and generally will not allow arguments based on a jus tertii (see Norris -v- Attorney General and Madigan -v- Attorney General ). Thirdly, since every member of the public has an interest in seeing that the fundamental law of the State is not defeated, the Courts will permit a citizen to challenge an actual or threatened breach of a constitutional norm where there is no other suitable plaintiff or where the threatened breach is likely to affect all citizens in general ( Crotty -v- An Taoiseach [1987] IR 713; SPUC -v- Coogan [1990] I.L.R.M. 70).

45. The Plaintiffs clearly have a very real and direct interest and have locus standi with regard to such provisions of this Act as set up a park on the Great Blasket and give powers of compulsory acquisition with regard to the Plaintiffs' lands. Counsel for the Defendants acknowledged this but went on to submit that the Plaintiffs do not have locus standi to make challenges to two provisions in section 5 of the 1989 Act. Firstly, section 5(2) states that the functions or specified functions of the Commissioners under the Act (other than sections 3 and 4 and the schedule to the Act) or under bye-laws under section 3 may be delegated by the Minister by order to the Foundation. The Plaintiffs contend that the allocation to the Foundation by section 5(2) of functions of the Commissioners under the 1989 Act is an impermissible delegation of executive power to the Foundation which is an entirely private company and not accountable to the public. The Plaintiffs particularly take exception to the fact that some of the leading members of the Foundation actively lobbied for and inspired the inclusion of the powers of compulsory acquisition contained in the 1989 Act. Counsel for the Defendants, on the one hand, makes the points that the Park is defined in section 2(1) of the Act and that the only delegation of functions which could be made under section 5(2) to the Foundation would be in relation to the Park as defined; if the Plaintiffs' lands have not been acquired then their lands are not part of the Park. He argues that if their lands have not been taken then the Plaintiffs would not be affected by such delegation of functions as takes place. I do not accept this argument. The Plaintiffs at present own at least 17/25ths of the lands on the island. Such delegation of functions as the Commissioners make to the Foundation in respect of lands owned or acquired by the Commissioners would have an effect upon the Plaintiffs and their holdings particularly when one takes into account the patchwork quilt of holdings in the village and fine lands and their 17 of the 25 undivided holdings in fee simple in the great commonage. The activities of the

46. Foundation in respect of delegated functions would be sure to affect the Plaintiffs on an island of the size of the Great Blasket. The Defendants' Counsel argued that, on the other hand, if the Plaintiffs' lands have been acquired so as to have become part of the Park then the Plaintiffs would no longer own any lands on the island which might be affected by the delegation of functions from the Commissioners to the Foundation. This submission is too simplistic and is unacceptable. For part of the Plaintiffs' case is that expropriation of their interest is unnecessary and too draconian and that the objectives of the Oireachtas could be secured by using existing general legislation to preserve and demonstrate the historic heritage. If, on these grounds, the Plaintiffs are entitled to retain their lands or part of their lands then they would again be affected by any delegation of functions by the Commissioners to the Foundation. Furthermore, the Plaintiffs are entitled to have the Court consider not just specific provisions in isolation but also the entire of the 1989 Act and the intention of the Oireachtas as deduced from the thrust of the Act as a whole as well as the wording of individual provisions of the Act. Put bluntly, the Plaintiffs clearly regard it as unfair and unjust and contend that it is invalid that an Act which contains powers of expropriation of their property should also in the next section contain provisions whereby the expropriating agency of the State may delegate functions to the Foundation, the very body which the Plaintiffs perceive as being a private group of people, being neither elected nor representative of the democratic electorate nor responsible to the State authorities, and which has among its leading members lobbyists for the powers of compulsory acquisition being used against the Plaintiffs.

47. The Plaintiffs argue that this provision authorises the Minister by order to amend the Act in any way he considers expedient and that this is an impermissible delegation of legislative authority on the lines of what is known as an "Henry VIII clause". Counsel for the Defendants says that this challenge is premature as the Minister has not made any such orders adapting provisions of the Act and submits that adaptation does not amount to an amendment

48. The Defendants suggest that these two challenges are premature and the time for them is not yet ripe. The Plaintiffs counter this by pointing out that in East Donegal Co-operative Livestock Mart Ltd. -v- The Attorney General (the" Marts case") [1970] I.R. 317 although the four individual plaintiffs, each of whom was a shareholder in a livestock mart, had not yet actually been affected adversely by the sections under challenge, nevertheless they had the necessary standing to question the constitutionality of the statutory provisions in issue because those sections (assuming that they gave to the Minister the powers suggested) constituted a threat to the existence of the mart in which the plaintiffs had an interest. This ruling in favour of the three plaintiffs who were cooperative societies or livestock marts and the four individual plaintiffs (each of whom was a shareholder in a livestock mart) was made by O'Keeffe P. in the High Court and affirmed when the case came on appeal to the Supreme Court. There was a sufficiently proximate risk in that case of the provisions of the Act causing economic loss to the plaintiffs. In the present case, the legislative mechanism exists under which at any time the delegation to the Foundation and the adapting of the Act can be carried out by executive action. Ripeness is peculiarly a question of timing; it is prudent to exercise judicial restraint to avoid making unnecessary decisions on constitutional issues. However, the factual background to these provisions has been largely established in evidence and the issues are predominantly legal ones which can be conveniently dealt with at this stage rather than by being left over to be argued in the future at further cost. Such a delegation of functions and adaptation of provisions seems to me to be

49. The Plaintiffs are raising no hypothetical case in respect of the broad general thrust of the 1989 Act and, in my view, are entitled to have the Court look at the entire framework of this Act since part of the Plaintiffs' contention is that the objectives of preserving the folklore, literary and built heritage of the Blasket can be achieved by the existing general legislation without the need for the draconian powers of acquisition in the 1989 Act, and the Plaintiffs argue that at the very least proportionality requires that they should be left with some of the buildings and the fine lands therewith and their interest in the commonage. If the Plaintiffs continue to own property on the island then they will be affected by the delegation of functions to the Foundation under section 5(2) . While such delegation would be in relation to the Park as defined in section 2(1) of the Act, nevertheless it is clear that it would affect the management of the entire island and the identity of the authority with whom the Plaintiffs would have to correspond and cooperate.

50. While Henchy J. did say at p.282:-

51. Henchy J. went on to say at page 285:-

52. He finally summarised (at page 286) the legal position as follows:-

53. Keane J. points out, at p. 189, that it will be observed that Henchy J. in this passage is careful to state the rule in terms of damage, existing or genuinely apprehended to interests and not to rights:-

54. All the Plaintiffs, both An Blascaod Mór Teoranta and the individual Plaintiffs, who have interests as landowners personally or as shareholders in the company in property on the Great Blasket, have expended time, energy and money on trying to preserve the ambience of the island and buildings on the island. None of the Plaintiffs are conjuring up some hypothetical case and no suggestion has or could be made that they are cranks or busybodies. On the contrary, they took an active and idealistic interest in trying to preserve the buildings on the Great Blasket when enthusiasm for preserving the heritage on the Great Blasket was not evident on the part of the State authorities. The repercussions on the Plaintiffs and their interests of delegation of functions to the Foundation under section 5(2) of the 1989 Act and of the adapting provisions for expediency under section 5(4) of the 1989 Act are not similar to the hypothetical situation in Cahill -v- Sutton . On the contrary, the Plaintiffs are likely to be directly affected by the actual provisions in the 1989 Act which are probably imminent in application. Counsel for the Defendants makes the point that if the Plaintiffs' land is acquired

55. As for the Defendants' contention that these aspects are not ripe for decision until the relevant orders have been made under section 5 in respect of delegation and adaptation and under section 3(5) in respect of fees or charges received by the Foundation in pursuance of bye-laws to be made after consultation with the Foundation, I think that the facts are sufficiently clear and as the points in dispute are predominantly legal issues they can conveniently be resolved. the situation is analogous to the Marts case where there was a sufficiently proximate risk of the Act causing economic loss to the plaintiffs. The legislative mechanism exists under the 1989 Act for the imminent coming in to effect of the very steps

56. Dr. Matthias Jauch was added as a Plaintiff in the amended statement of claim delivered on 23rd October, 1996. He is a lecturer in chemistry at University College Cork and has resided in this State for many years having been brought up by his parents for most of the time in County Kerry. He is a German citizen. At paragraph 11(A) of the amended Statement of Claim, Dr. Jauch and his sister Ebba (through their deceased brother Arne) claim that they own property on the Great Blasket Island, in particular, the only beehive hut there, the old post office and fields overlooking the Trá Bán. Their family have had very close associations with the Dingle area and the islands since 1956 and, in August 1978, two of their brothers, Arne and Tilman, were drowned in an accident while fishing off the Great Blasket. Dr. Jauch and his brothers in the 1970s carried out renovation work on the island and he visits the island about three times each year and on occasion sleeps there overnight. In evidence, it became clear that the late Arne Jauch and his friend Muirís Cleary spent summers on the Great Blasket and fished extensively. They earned enough to buy the lands in at least

57. Counsel for the Defendants firstly stressed that the 1989 Act enjoys the presumption of constitutionality and that there is also the implication that the Minister will act in a constitutional manner in relation to powers which the Minister may, or may not, at his

58. Counsel for the Plaintiffs concedes the presumption of constitutionality of the 1989 Act and agrees that the Marts case indicates that where an Act confers discretions on the Executive that Act is presumed to intend those discretions to be exercised in an entirely constitutional manner in accord with the "double construction principle". However, Counsel for the Plaintiffs submits that this has little bearing on the issues to be decided in the present case because these issues do not primarily involve the exercise of discretions in respect of a law of general application as was the situation in the Marts case.

59. Secondly, Counsel for the Defendants correctly says that the Court has power to determine only whether a particular provision is constitutional or not (see The State

60. For example, in Bloomer -v- Incorporated Law Society of Ireland [1995] 3 I.R. 14 at page 58, Laffoy J. declined to give relief against the State for the specific reason that the granting of such a declaration would have effectively involved the Court itself in putting in place a piece of legislation which had not been enacted by the Oireachtas. She said:-

61. Counsel for the Defendants also referred to Dandridge Chairman Maryland Board of Public Welfare et al. -v- Williams et al. (397 U.S. 471 at 487) where Justice Stewart said in the Supreme Court:-

62. The Court was dealing with allocation of funds and decided that the State of Maryland had great latitude in dispensing its available funds and, given the State's finite resources available for public welfare demands, it was not prevented by the Social Security Act from sustaining as many families as it could although providing the largest families with somewhat less than their ascertained per capita standard of need. The Court recognised a rational basis test when taking cognisance of the handing out of public funds. The thinking in this Maryland case is similar to the approach in MacMathúna with regard to the allocation of public funds. The Maryland scenario is different from the issues in this Court. In short, this case does not involve the allocation of benefits which would particularly be a matter for the legislature and executive but rather concerns issues about encroachments on the fundamental rights of property and equality of the Plaintiffs.

63. Fourthly, Counsel for the Defendants has referred to "the fluoridation case" and, in particular, the words of Kenny J. in Ryan -v- Attorney General [1965] IR 294 at page 312:-

64. The Plaintiffs do not contest the overall approach indicated by Kenny J. but make the point that Kenny J. stressed that the Court defers to the manner in which the Oireachtas reconciles the competing interests subject to at least two qualifications, namely, that the law is "not oppressive to all or some of the citizens" and that there is a "reasonable proportion" involved between the objectives sought and the means used. The Plaintiffs contend that the 1989 Act gives rise to both disproportionality and unreasonable discrimination and is simply unjust, unfair and oppressive to the Plaintiffs. Counsel submits that Kenny J. was dealing with an unenumerated right within the ambit of Article 40.3 being the right to bodily integrity which the State shall protect as best it may from unjust attack. The Plaintiffs question whether such similar deference is warranted in respect of the 1989 Act as it contains powers of expropriation which Counsel contends are in contravention of the protective guarantees given for property rights enumerated in Article 40.3 and Article 43. Kenny J. also posited the test whether there was a reasonable proportion between the benefit which the legislation would confer on citizens and the interference with the personal rights of the citizen. The Plaintiffs contend that the representatives of the State should have contacted them bearing in mind especially that offers of cooperation had been made by Peter Callery since 1972. The Plaintiffs complain that no approach was made to them whereas the agents of the State had no less than 43 meetings with the members of the Foundation. Peter and James Callery both gave evidence that if a reasonable proposition had been made to the Plaintiffs then they would have been prepared to consider it and to cooperate in respect of preservation of the village and of the amenities of the island. There is reason to accept their evidence as they have an enviable record in respect of heritage preservation and James Callery has already set an enlightened example by the preservation of Strokestown House and the mounting of the Famine exhibition there. On the Great Blasket, they have both already contributed substantially of their own time, energy and funds in preserving the buildings and environment on the island and by ensuring that there is a place for visitors to stay at least in summer.

65. The Defendants fifthly stressed the need to preserve "the prized relics of the past" and relied on O'Callaghan -v- Commissioners of Public Works in Ireland and the Attorney General [1985] I.L.R.M. 364 in which O'Higgins C.J. affirmed that the common good required the preservation of national monuments. It is clear that the Plaintiffs accept this principle. They have never contested the orders made under the National Monuments Acts in respect of some of their premises on the Great Blasket. Indeed, the Plaintiffs themselves have expended their own funds in trying to preserve the heritage buildings on the island. The O'Callaghan case was not a challenge to the validity of the National Monuments Acts nor is it authority for the proposition that preservation has to be achieved by expropriation rather than by the use of existing legislation and negotiation and cooperation with a landowner. Nor does O'Callaghan condone unfair procedures or discrimination. O'Callaghan's case concerned a challenge to a preservation order under the National Monuments Acts. The plaintiff had bought land at Lough Shinny on the coast of County Dublin which included a 38½ acre site occupied by a prehistoric promontory fort. The plaintiff knew that the lands contained an ancient monument. Nevertheless, he employed contractors to plough part of the area occupied by the fort. He failed to notify the

66. Commissioners of his intention to undertake this work. He could not then be found by the Commissioners with a warning notice to desist. It is hardly surprising that the Court held that the preservation order made under section 8 of the National Monuments Act, 1930 delimited not the right of private ownership but the user to which land, in the interests of the common good, may be put and that the preservation of national monuments should be regarded as the common duty of all citizens.

67. It is important to realise that in O'Callaghan , Ryan, MacMathúna and Madigan the Courts were dealing with laws of general application which applied across the land and were not restricted to a tiny group of people or a small area such as one island singled out from an archipelago off the coast of Kerry.

68. Counsel for the Defendants were invited to find a comparable Act since 1922 which gives powers of compulsory acquisition in a specific geographical area rather than in a general measure of widespread effect. Counsel referred me to the Shannon Navigation Act, 1990 which gives powers to the Commissioners of Public Works in relation to the Navigation of the River Shannon and to provide for the restoration and taking into care of the Ballinamore and Ballyconnell Navigation. The Act is a comprehensive measure designed to rectify deficiencies in older enactments and to enable the Commissioners to undertake the care, management, control and improvement of the Shannon navigation including the Ballinamore and Ballyconnell canal and the section of the River Erne navigation within the State. Any powers of compulsory purchase are merely incidental to the Commissioners' duties. I was also referred to the Temple Bar Area Renewal and Development Act, 1991 which provides for the development of the Temple Bar area. The provisions in the third schedule relating to compulsory acquisition were only incidental to enabling Temple Bar Renewal Limited to decide on and implement measures for development of the area. Acts

69. Counsel for the Defendants says that the Oireachtas by passing the 1989 Act had regard to the special part in our heritage of the Great Blasket and has recognised it as a prized relic of the past. The Defendants maintain that the 1989 Act is valid against the touchstone of the Constitution and refute the suggestion that there are circumstances in which the onus of proof in respect of invalidity can switch to the Defendants. They referred to the passage at p.398 in The State (Woods) -v- Attorney General [1969] I.R. 385 in which Henchy J., sitting in the High Court, set out the presumptions and rules in respect of the onus of proof affecting the High Court in adjudicating on the validity of legislation:-

70. Counsel also referred to In Re Article 26 and The Matrimonial Home Bill, 1993 [1994] 1 I.R. 305 in which, on a reference to the Supreme Court, Counsel nominated to argue against the constitutionality of the Bill submitted that the Court should depart from its previous

71. Incidentally, Article 26 references would also differ in the respect that they would not have involved the calling of evidence but rather the postulation of material situations.

72. The Plaintiffs accept that the overall burden of persuasion lies on them. However, they submit that if they, despite the presumption of constitutionality against them, manage to make out a strong prima facie case as to the invalidity of a provision this may nevertheless perhaps be refuted by a constitutionally permissible justification. Then in such circumstances the Plaintiffs suggest that the onus is on the State to produce this justification. By way of example, the Plaintiffs submit that if the Court in considering section 4(2) of the 1989 Act against the provisions of Article 40.1 comes to the conclusion that, prima facie, the discrimination between two different types of landowner on the basis of lineal relationship to a former resident seems unfair and constitutionally suspect then this could warrant the need for adducing of justification. A second example might be that compulsory acquisition in the light of the guarantees in Article 4.3.2 and Article 43 requires justification on the grounds that it is necessitated by the exigencies of the common good. Counsel adopted passages from Peter Hogg, Constitutional Law of Canada (Third Edition, 1992) as being in point with regard to the distinction between the burden of proof and the presumption of constitutionality. In Canada, "charter litigation" involves constitutional rights. On page 857, under the heading "Burden of Proof", P. Hogg writes:-

73. This analysis assists. I conclude that the 1989 Act enjoys the presumption of constitutionality and that the overall burden of persuasion to the contrary as to invalidity rests on the Plaintiffs; however, if the Plaintiffs have established prima facie repugnancy then the onus may switch to the State to adduce evidence if appropriate or to produce justificatory arguments for what appears otherwise to be repugnant. Thus, while the rule applies that "he who asserts must prove" in the sense of adducing the evidence or making a submission, nevertheless an overall burden of persuasion rests on the Plaintiffs.

74. In its scrutiny of legislation which is alleged to be repugnant, the Court tends to be cautious in respect of intervention where a statute is for the purpose of regulating

75. A considerable number of witnesses were called and much evidence was adduced relevant to the large number of points of challenge being made by the Plaintiffs. A short summary of the relevant features of the evidence assists an understanding of the background to the 1989 Act, its objectives, and the challenges to the Act. Much of the evidence was common case but in some instances there was a conflict and it should become clear by implication or by indication which account I prefer where there is conflict.

76. Sarah Najemy (née Brooks), daughter of the fourth Plaintiff Kay Brooks, gave evidence of visiting the Great Blasket with her father Phillips Brooks, an American diplomat, in late 1971 and June 1972. Their family home was near Springfield, Massachussetts, and her mother was of Irish ancestry and both her parents were interested in Irish culture. This enthusiasm was increased by discussions with a professor of Irish studies at Buffalo University, a family friend, Professor Frasier Drew, who used to lecture on the literature of the Blasket islands. In 1972, Phillips Brooks bought a half share in the interest accumulated by Taylor Collings of land on the Great Blasket. By this stage, Taylor Collings had bought about 17/25ths of the property on the Great Blasket from former islanders with the second Plaintiff, Peter Callery, acting as his solicitor. Sarah Najemy made it clear that her father never intended to develop the island commercially but rather had an idealistic wish to conserve the heritage and to restore the buildings. On 10th January, 1975, Phillips Brooks

77. Peter Barker is a distinguished architect and town planner and an Honorary Fellow of the Royal College of Art. He has held visiting professorships at U.C.L.A. and the

78. Royal Academy of Amsterdam. While his research was in the field of disability, his major publications have been in respect of the design of cities and towns. He has practised as an architect for 27 years and has been an associate partner with O'Sullivan Campbell, Architects and Planning Consultants, for the last three years. He has an office in Dingle. For the last nine years, he has visited Kerry regularly and has been living there for the last three years and has visited the Great Blasket on many occasions. He carried out a photographic survey in October 1995. His photographs give a good visual image of the village, the structure of the houses and the Trá Bán. The Congested District Board built houses nos. 45, 44, 43, 42, 41, 3 and 8 on his map. No. 42 was inhabited by Peig Sayers. From his survey, the Congested District Board houses were in need of restoration as being in a poor state but, by comparison with the other buildings, they are in better repair as only five of the other buildings are in reasonable repair. His colour photographs give an indication of the approach to the slipway. He confirmed that landing on the island is hazardous. On his visit in 1992, a guesthouse and cafe were open. He could see repair work which he understood had been done by Taylor Collings on many of the houses, including the Congested District Board houses, in the early 1970s. He was intrigued by the literature and by the built structures and felt that there had been a special community on the Great Blasket for about 200 years. He said that the village was unique and should be preserved as otherwise it would be a heap of stones in 15 years times. In architectural terms, the village on the Great Blasket was an entity in its own right. From his experience in town planning and in setting up new towns such as Milton Keynes, he regarded it as unfair and invidious to place a C.P.O. on sections of a village and not on the whole area. He regarded the Blaskets as an archipelago with all the islands being worthy of conservation. He described the remnants of several houses and said that since 1983 the area had been protected by a prime special amenity order.

79. Peter Callery has been practising as a solicitor in Dingle since 1963. He is the principal of Murtagh E. Burke & Co. The first four Plaintiffs, mainly through the first Plaintiff, own about 17/25ths of the Great Blasket including an undivided 17/25th share in freehold of the largest commonage being of 1,060 acres. The total area of the island is 1,132 acres. In effect, the first four Plaintiffs own 70% of the island including about two thirds of the wholly owned lands. It became clear that Mr. Callery and his brother had both become interested in the history of the Blaskets and that while working on title matters for Taylor Collings, Peter Callery had acquired an expertise with regard to the land holdings on the Great Blasket. He described how Taylor Collings and his wife had made strenuous efforts to clean up the accumulation of rubbish on the island and, in the early 1970s, had started and done huge work in restoring four of the Congested District Board houses. Taylor Collings had put in a lavatory; there was a complaint and he had to get retention permission. He employed five or six men on restoration work, the foreman of whom was Sean Kearney, an islander. Mr. Kearney was a useful intermediary with prospective vendors and was helpful in respect of the title to holdings. The plan showing the property of An Blascaod Mór Teoranta, which was called at the hearing "the patchwork quilt map" is helpful in showing the land holdings behind the Trá Bán. The registered properties of the first Plaintiff are shown coloured pink; the property which it claims beneficially are coloured blue, and interspersed between both these types of properties are the white coloured holdings of other landowners. Two of these registered holdings belong to Muirís Cleary and the Jauch family and one registered holding belongs to the Office of Public Works. Since 1973 Peter Callery dealt with the administration of the Callery/Collings/Brooks interest and with the registration of title for Muirís Cleary and the Jauch family. In 1973, Jane Barnes and Gerry Fox ran the guesthouse and restaurant on the island and since then the Plaintiffs have ploughed their own

80. Peter Callery received a letter dated 13th April, 1984 from the Office of Public Works stating that " the Commissioners of Public Works intend to acquire all the lands on the island and develop them in the national interest so that they will be available for all to enjoy ". By letter dated 28th June, 1984, Mr. Callery suggested a meeting for preliminary discussions. This was a sequel to a meeting between Mr. Callery and an official of the Office of Public Works back in 1973 when Peter Callery had inquired if a cooperation plan could be worked out with the Office of Public Works. However he received no response or encouragement in this respect. Peter Callery said, and I accept this, that before May 1989 the State had made no offer to purchase the Plaintiffs' interest. While he had been told of the draft of a Bill by Michael Begley, T.D., some months before, it was not until he turned on his television set and saw the Minister for the Gaeltacht, the then Taoiseach, speaking on the Bill in the Seanad that he became aware of the actual Bill.

81. Peter Callery made it clear that in the years before 1989 the first four Plaintiffs would have been prepared to sell their commonage and some of the village "fine lands" for a fair market price; however, no offer was made to them before the Act was passed. It was known since 1985 that the persons whose interest he represented were tentatively exploring for a buyer. Both Peter and James Callery and Mrs. Najemy expressed a wish to keep some

82. On 7th June, 1989, the Act was enacted. About three months later, Dr. P.J. Moriarty, the Chairman of the ESB, telephoned Peter Callery and subsequently a valuer from the Office of Public Works called to his office. Unfortunately, the late Dr. Moriarty, the Chairman of the Foundation, was unwell during the hearing. One of the witnesses from the Foundation had given the impression that Dr. Moriarty would be able to deal with some aspects but unfortunately this was not to be due to his untimely death. I should add that the Defendants' Counsel never did indicate that he would be called as a witness. It was common case that negotiations under the threat of C.P.O. took place in 1990. In March 1991, C.P.O. notices were served and on 7th May, 1991 a plenary summons was issued on behalf of the first four Plaintiffs. Peter Callery having agreed to the request in about 1986 to hold the Plaintiffs' property off the market then found an Act was brought in giving powers of compulsory acquisition. He accepted the eminent importance of the Great Blasket but regarded the treatment of the Plaintiffs as unjust. Since February 1987, there had been preservation orders in respect of the three houses, namely of Ó Criothain, Muirís Ó Sullivan and Peig Sayers. As the Great Blasket was four miles long, if it was the once inhabited

83. The only lands being acquired compulsorily from the "pedigree folk" are their shares in the great commonage of which the Plaintiffs own 19/25ths anyway. Thus, the "pedigree folk" are left with their fine lands and such shares as they hold in the three lesser commonages but not the great commonage.

84. A suggestion was made that the land holdings in the village represented a good example of the Rundale system. However, there was evidence that the acquisition of the lands from Lord Cork and the division of them thereafter by the Congested District Board among 25 land holders would have lessened the importance of this system. In any event, there are better examples of the system elsewhere on the western seaboard and on the Dingle Peninsula.

85. Muirís Cleary said that he bought five acres and two roods of fine land jointly with Arne Jauch. These holdings were made up of separated sites with the old post office ruin on unregistered land and with a recently built beehive hut. From about 1971, he had

86. Dr. Matthias Jauch, a German and EC national, said that he had been brought up as a neighbour of Muirís Cleary. His family lands came from his brother Arne. He was under the impression that members of the Foundation had arranged for Muirís Cleary and himself to be exempt from the C.P.O. in respect of the buildings and fine lands. This tied in with the letter from the Heritage Service dated 28th February, 1991. This case had started on Wednesday 7th May, 1997 and only a few days before he had received C.P.O. notices dated 28th April, 1997 with regard to the rest of their lands besides the 2/25ths share of the great commonage which was the subject of previous notices. He had been amazed by the receipt of the recent notice as it seemed contrary to the tenor of the correspondence received.

87. Derek Daly, the chief planning officer of Kerry County Council, gave evidence that the Blasket archipelago had been zoned in the Kerry County Development Plan in 1968 as an area of prime special amenity and this was repeated in the Plans adopted in 1983, 1989 and 1996. There had been a consultation with the Office of Public Works in respect of the proposed construction of a slipway at the north-west end of the Great Blasket pursuant to the provisions of section 83 of the Planning Acts. In the County Development Plan of 24th October, 1983, it was stated that the "development of the Blasket islands as a national park must be envisaged". He is an experienced planning officer and was not aware

88. Paddy O'Leary, an archaeologist, was called and described the archaeological sites on the Blasket islands. He was attracted to the idea of a national park for the whole Blasket archipelago. He and Lee Snodgrass had produced a report in May 1990 which was commissioned by the Foundation. It was part of a larger report in the compilation of which Criostoir MacCarthaigh had played a pivotal role. From an archaeological point of view solely (as opposed to folklore or literature), the Great Blasket was the least important of the islands. He would like to see the islands with archaeological remains included in a park to prevent sites being destroyed. As far as he was concerned, the literary heritage was safer as nobody could destroy it as the writings are in print and in the archives.

89. Michael Begley served as a county councillor for 30 years until 1990 and for 20 years as a T.D. He is a patron of the Foundation along with many other leaders of Church and State. In 1987/1988, he understood Peter Callery represented major interests in the Great Blasket. He learnt of the impending legislation from Dr. Patrick Moriarty; he was invited to a lunch at the ESB given on behalf of the Foundation on 20th January, 1989 where the assembly included all the T.D.'s and Senators from Kerry and they were addressed by Dr. Moriarty and a barrister. A draft Great Blasket Island Act, 1988 was circulated at the meeting and a copy of this containing a summary and draft Bill was adduced in evidence without objection.

90. At this point, I should say that there is nothing improper about pressure groups lobbying public representatives for the laudable objective of preserving Irish heritage and culture. The significance of Mr. Begley's evidence, which I accept, is twofold. First, I believe his evidence that Peter Callery's interest in the Great Blasket was well known in 1987 and thereafter at a time when one would expect the State to have re-opened communication with the owners of most of the Great Blasket through their solicitor. Secondly, a number of witnesses involved in the Foundation stated that they were not aware of the Foundation having any role in lobbying for expropriatory legislation or acquisition of lands on the island for the Foundation. Mr. Begley knew that the draft Act was produced by the Foundation. I have no doubt that Mr. Begley was a reliable witness. The reality is that many people in West Kerry with an appreciation of the culture of the Blasket islands were apprehensive about the purchase of land holdings thereon from the 1970s. This is borne out by Michael Ó Cinnéide's approach to Peter Callery to postpone any proposed sale after the advertisement appeared in 1986. Two letters from an agreed book of correspondence were adduced and shed light on the aims and activities of the Foundation. The first letter is from Dr. P.J. Moriarty, the chairman of the Blasket Island Foundation, to the Secretary of the Department of the Taoiseach dated 9th December, 1988 and reads:-

91. The reply dated January 1989 came from the Chairman of the Commissioners of Public Works and reads as follows and is indicative of the thinking after a meeting on 6th January, 1989:-

92. It is interesting to note that it would seem there was agreement in January 1989 not to proceed with purchase of the island at that time and that acquisition of the island by the Foundation was obviously in contemplation and was being discussed.

93. Susan Callery, daughter of Peter Callery, gave evidence of her early memory of having checked with her father Peter the flags flown by an American lady living on the island and then in 1974 having made a trip around the islands with her uncle James Callery. From summer 1975, she had often stayed on the Great Blasket.

94. James Callery confirmed his brother Peter's evidence that they had bought an interest in the Great Blasket in 1972 and that his wish now was for a little house and a piece of land on the island. No approach had been made to him before the 1989 Act was passed. He found it offensive that the Act created a privileged class distinguished by blood lineage. He said that it was well known that Peter Callery was a shareholder in the Plaintiff company and that the return to the Companies Office dated 9th March, 1988 showed Peter and James Callery as directors and this was filed on 3rd May, 1988.

95. John Moore, auctioneer of Dingle, gave evidence that he owned the Blasket islands other than the Great Blasket and Innisvickillane. His grandfather had acquired the islands and he regarded them as a unit geographically and economically. He owned no land on the Great Blasket and was the lessor of Innisvickillane.

96. Lesley Harmbrook said that she had worked and lived as a scientist on the Great Blasket from 1977 to 1980 during the summer months. She had lived in one of the Plaintiffs' Congested District Board houses and ran a guesthouse in the other. She had written a chapter on the flora for inclusion in Ray Stagles' book on the island.

97. Robert Pierse, solicitor, gave evidence that on 18th September, 1991 he met Kay Brooks, the fourth named Plaintiff. She had strong misgivings about the 1919 Act. Her

98. Peter Callery was recalled and it was suggested to him that C.P.O. notices had been served on persons other than the Plaintiffs in respect of the lesser commonages. However, Peter Callery's response was that the exempting provisions would then come into play in respect of the "1953 pedigree folk". Peter Callery also said that offers had been made in 1990 in the course of a meeting with Commissioner Scully at which he, Peter Callery, had made the suggestion of international arbitration. Subsequently, he received a phone call from the Commissioner from which Mr. Callery had got the impression that the suggestion of a valuer from abroad was not acceptable.

99. Professor Padraig Ó Riagáin had earlier been called by the Defendants. Since 1980, he has been working as a research professor at the Linguistics Institute of Ireland and has expertise as a sociologist and in regional planning. Having been referred to section 2(2) of the 1989 Act about the historic heritage, culture, traditions and values of the island, Professor Ó Riagáin said that culture as a term used by sociologists would include literature, music, paintings and also the entire way of life of a community, including the linguistic system, the system of family and marriage relationships, the system for controlling property and religious or liturgical behaviour as well as those activities that go under the general heading of pastimes such as dances, music and songs, and also the material artefacts of a community. As for preservation and demonstration, he said that in the particular context of the Blasket islands, we are dealing with a community that is not historically remote and that is not geographically distant. He continued by saying that it would not be for him to say in exactly what practical and material form a culture could be preserved. There are many

100. He subsequently said that village life in the Blaskets was in one respect not dissimilar from the village life of most Gaeltacht communities at that time, that particular period towards the end of the 19th century and the beginning of the 20th century. It was a village life that was fractured by the effects of emigration. Most gaeltacht villages, and the Blaskets were no exception, were effectively transnational communities. Members of the community lived on

101. His evidence was strongly challenged.

102. The Professor was asked about the prospect of a park with patches of private property which are likely to become derelict and replied that this would be fitting in the sense that it would tell a story about the way in which an island had died.

103. I should say at this point that I have considerable scepticism about the effect of the exemption in favour of the former inhabitants and their relatives particularly where it involves the likely further deterioration of buildings in the village owned by the exempted classes. In fairness, Professor Ó Riogáin himself said that the situation in time would become grotesque. Section 2(2) of the Act talks of " a park in which the historic heritage, culture, traditions and values of the island and its inhabitants will be preserved and demonstrated ". This seems to me to refer to the heritage and culture of the community inhabiting the island prior to the evacuation in 1953. Under section 2(3), the Commissioners, in performing their functions under section 2(2), are among other things to conserve or restore and maintain such of the traditional dwellings and other buildings on the island as they consider appropriate. There are obvious difficulties in putting into effect a scheme of conservation of traditional dwellings if some of them are in the Park and others are interspersed among them and still in private hands, being in the possession of the exempted class of former inhabitants and their relatives. In reality, over 40 years on since the evacuation of the very last of the inhabitants, these interspersed properties may well have passed into the hands of lineal descendants of the former inhabitants and many of these owners are probably living in diverse parts of the world and have been brought up in very different cultures from that of the former island community. I have set out Professor Ó Riagáin's evidence at length as it represents the apogee of the Defendants' justification for the discrimination in favour of the former inhabitants and their lineal descendants and against the Plaintiffs in respect of land holdings. It is ironic that some of those relatives of former inhabitants (who may have left long before 1953) could at this time already be very remote descendants who had never set foot on the Blaskets and are living in New York or Zanzibar. On the other hand, the Act envisages the compulsory acquisition of the property of the Plaintiffs who have taken an interest in the cultural heritage of the Blaskets and have taken active steps to preserve the buildings and have used their own resources to restore properties and ensure that there was access and somewhere to stay for visitors on the island.

104. Brendan Feiritéar said that he was a teacher and former head of Radio na Gaeltachta for nine years. He was born near Dun Chaoin and was knowledgeable about the area having been involved in research and programmes and film making about the Blaskets. In his view, the distinguishing feature of the Great Blasket was the literary accounts of the houses. He said that the last chapter of the story of the Great Blasket was the first chapter in the story of the emigrants from the Blaskets to the U.S.A. He produced a list of the patrons of the Foundation and explained that the aims of the Foundation were to preserve the Blaskets for the nation. The object was to preserve the Great Blasket unspoiled so that people could see the places mentioned by the authors. It was never the intention to acquire the island for the Foundation. He mentioned that everybody knew that Peter Callery acted for Taylor Collings. He also said that the members of the Foundation had discussed the need for special legislation from the beginning and that a bill was discussed although he could not recall when this was. In February 1989, he had been in Dublin at the launch of the Foundation and, on that occasion, he recalled Dr. Moriarty spoke of the aims of the Foundation and mentioned the draft Bill. It will be recalled that this included expropriatory provisions. Brendan Feiritéar said that the acquisition of property from the Plaintiffs and Muirís Cleary could be justified if it was necessary to preserve the village; the end could justify the means. He agreed that at some stage he was told that a specific Act had to be got together but he was vague on this aspect and I inferred that the witness had left the obtaining of special legislation to others.

105. Dr. Alan Craig became chief park superintendent in 1987 and from 1987 to 1991 was involved with the Blaskets. He explained that initially national parks were concerned with nature but that in the 1960s Derrynane came into State hands and became known as a National Historic Park but without any statutory basis for this. For a national

106. Visitor Centre on the mainland. He was not aware of other writers' houses elsewhere being preserved, although he was aware that St. Enda's was being looked after by the Heritage service of the Department. He stressed that the responsibility of the Office of Public Works was to implement the provisions of the 1989 Act. Dr. Craig confirmed that all of the Blaskets are included in the 1,000 to 2,000 proposed Natural Heritage Areas and that Tiaracht is a bird habitat of international rating; the geology of the islands was an extension of the mainland and as a botanist, in his view, there was no exceptionally peculiar flora on the Blaskets.

107. Edna Ul Cinnéide gave evidence that she came from Mayo, had lived in Dublin and in 1952 married the son of an islander. Her husband, Michael Ó Cinnéide, a County Councillor active in local and cultural matters, died in 1985. She was an active member of the Foundation and obviously is a competent person and an effective fund-raiser. She made it clear that she had no authority to, and did not, broker any deal in favour of Dr. Jauch and Muirís Cleary with the agencies of the State. I accept her evidence on this. In the light of her friendly disposition towards Dr. Jauch and Muirís Cleary, it is quite understandable that, when they received the letters dated 28th February, 1991 from the Heritage Service, they would feel that they were being treated in the same way as the "pedigree folk" and differently from the first four Plaintiffs. However, she had not in fact intervened as an uninvited benefactor. She confirmed that the Foundation started about 1986 when news came of the "island for sale advertisement" in America. She went with Brendan Feiritéar and two islanders to Peter Callery. It was a friendly meeting in which they were trying to establish facts about the sale. She said that the purpose of the Foundation was to have the State purchase the island and also to seek funding for the centre at Dun Chaoin. Funds collected were not to buy the island but to create an awareness of the island heritage. She accepted that there might have been a misunderstanding that the Foundation had designs

108. I am sure that she is telling the truth as she believes it. Accordingly, I conclude that she was unaware that persons in the top echelons of the Foundation were lobbying for legislation for compulsory acquisition. Sections 5, 6, 7 and 8 of the draft "The Great Blasket Island Act, 1988" circulated in January 1988 at the meeting held by Dr. Moriarty are incontrovertible proof that the Foundation wanted compulsory acquisition of all land on the Great Blasket other than "' excepted land - owned by present owner since 17th November, 1953 (date of evacuation) or owned by present holder as a result of acquiring it from an ancestor resident on the island prior to 17th November, 1953 ". A further quotation from this draft emanating from the Foundation is:- "'Excepted land' may be purchased by agreement and consent only" . This is relevant to the challenges to the parts of the Act dealing with the role of the Foundation (see especially point (c) Constitutional Justice, and also (e) Delegation of Functions and Powers and (f) Section 5(4) of the Act - Power to Adapt - which are in the summary of grounds of constitutional challenge above). No doubt this is why no objection was taken to Mr. Begley's evidence and the putting in to evidence of the draft "The Great Blasket Island Act, 1988". It may be as well to add that the attitude of and lobbying by the Foundation for expropriation is not material to the Court's consideration of the validity of Section 4 of the Act in the light of the provisions of the Constitution as the Court must focus on the wording of Section 4. The Court has not, in the circumstances of this case, deemed it appropriate to delve into the legislative history of the 1989 Act, or to admit the record of the debates in the Oireachtas, other than so as to ascertain the general historical, geographical and cultural background.

109. Criostoir MacCarthaigh has an M.A. in Irish folklore. He contributed a chapter and was the moving spirit in the compilation of the book on the Blaskets produced by Atlantic European Resources. In August/September 1991, he did a field survey with Barry O'Reilly of the vernacular architecture of the village. They located 65 buildings and sites. Their work was complicated by the houses having been enlarged and built on over the years so that there was a tapestry of buildings. They had added to the map and sites identified by the Office of Public Works; often they found remains of half walls and then traced for walls and gables. He said that only ten or eleven of the buildings now have roofs. He believed that the village had a late medieval origin. The five or six Congested District Board houses were very different in style and orientation from the vernacular houses. He felt it was important that the buildings and field system should be conserved apart from the literature. Several folklorists over the years had made recordings about the island. There were also several written volumes which included details of the structure and economy of the village. He was anxious that the buildings, structures and field systems of the village should be preserved. He deplored any mechanism that would damage the integral unity of the village.

110. Muirís MacConghail, former controller of programmes in RTE for ten years, author and film maker, was an impressive witness who has written and lectured on the culture of the Blaskets. His documentary film on the Blasket Islands, Oileán Eile - Another Island (1985) has won awards. He gave evidence of an oral medieval culture and the development of an island literature which is unique. He handed in a lengthy list of the authors of the Great Blasket. He explained how Carl Marstrander, Robin Flower and George Thomson had encouraged the islanders to write in their own living language. He explained that the

111. Martin Connolly is the head of the valuation section in the Department of Engineering Services of the Office of Public Works and has 20 years experience there. He said that in the 1970s instructions were received from the Department of Finance to acquire

112. Padraig Feiritéar is the principal of a secondary school in Dingle and a member of the Foundation since it began in 1985 under the chairmanship of Dr. Moriarty. He explained that the Foundation had two objectives, a National Historic Park on the Great Blasket and an explanatory Centre on the mainland. It published information and collected books on the Blaskets. He stressed that it was never the intention of the Foundation to

113. Dave Fadden of the Office of Public Works gave evidence that he had attended a meeting on 5th June, 1990 with Commissioner Scully in Peter Callery's office in Dingle. The object was to try to agree the purchase of the first Plaintiff's holdings on the island. On 9th June, 1990, he made a memo of this interview. At a subsequent meeting on 25th July, 1990, he had attended in Commissioner Scully's room at St. Stephen's Green when the Commissioner had discussions with Peter and James Callery. The Callerys had suggested a valuer from abroad. Mr. Fadden said of the letter dated 28th February, 1991 sent to Dr. Jauch and Muirís Cleary, that this was a standard letter but that he realised how they could take the meaning from the letter that they were exempted from acquisition. He confirmed that no letter had been sent to the Plaintiff landowners setting out the reasons for and objectives of the proposed acquisition. His office was caught up with the minutiae of getting the C.P.O. notices right.

114. I interject that the view could be taken that since the agents of the State had frequently explained the plans at meeting after meeting to the members of the Foundation, it should have been easy for the Department to set out the broad lines of the reasons for compulsory acquisition in a letter to the Plaintiffs responding to their offer of cooperation before taking the drastic step of sanctioning the service of the notices. It would seem that no letter setting out the reasons for the acquisition on grounds of the need to preserve the literary, folklore or built culture was ever sent and certainly no suggestion was made that continued ownership of plots of land by descendants of emigrants would demonstrate the culture of the former island community.

115. Professor Bo Almquist is the recently retired professor of folklore at University College Dublin. He has been aware of the unique position of the folklore of the Blasket islands since his student days at Uppsala University in 1952. In 1957, he met Michael, son of Peig Sayers, and worked with him until Michael died in 1972. He has been editing Peig Sayers' work in 14 volumes of about 300 pages each. He said that out of an island community of about 180 people came a dozen people of unique talents who have produced material covering every aspect of folk literature and in respect of which there is no comparable material elsewhere in the world. He said that there was still one or perhaps two surviving Blasket islanders and that it was very doubtful if the children of the departed

116. Michael de Mordha was born in Dún Chaoin and was formerly a programme manager with Raidió na Gaeltachta. He has been the manager of the Visitor Centre since July 1993. Last year, there were 40,000 visitors to the Centre. He produced in evidence a draft management plan drawn up in 1996 which covered access, buildings and organisation for the Great Blasket. There was a plan to improve the piers and to deal with the buildings which were in ruins and subsiding into the hillside. There was also a need to improve the water supply and to put in sanitary facilities. It was not envisaged or planned that people would reinhabit the Great Blasket.

117. Commissioner Brendan Scully has been a commissioner since 1982. He attended the meeting on 25th July, 1990 and was prepared to agree to an arbitration but not to an international arbitration. He had considered the suggestion of a valuer from abroad as it was put forward seriously. He thought Peter Callery was correct that he, the Commissioner, responded to the suggestion with a refusal on the telephone. In respect of suggested cooperation, he said that it would have been difficult to work out a modus operandi in respect of a national park with the Plaintiffs but it was a possibility.

118. Ciaran O'Connor is the senior architect with the Office of Public Works. His evidence was impressive not just for his expertise, which one would expect from an F.R.I.A.I. with the Office of Public Works, but also for his deep knowledge of the Great Blasket and the conservation of the island. He had first visited the Great Blasket as a student in 1973 having

119. I note in passing that there was admirable liaison with local people with regard to the Visitor Centre at Dún Chaoin. This is in contrast to the Department's lack of laying of the ground in respect of compulsory acquisition on the Great Blasket, at least as far as communication with the Plaintiffs was concerned.

120. Difficulty of access to date has protected the fragile environment of the island from the effects of overcrowding. Problems could be posed by an exempted landowner wanting to develop his part of the village or objecting to limited access rules. Thus, the exemption provisions would appear to create a practical problem in respect of control of access and planning because of the partial ownership of the island envisaged.

121. Before turning to the constitutional challenges, some other contentions should be examined.

122. The Plaintiffs allege unfair discrimination against them as compared with Muirís Cleary and Matthias Jauch in respect of the administration of C.P.O. notices. Paragraph 32 and the declaratory claim in the amended statement of claim contends that there is unfair discrimination against the first to fourth named Plaintiffs in that their entire property on the Great Blasket is the subject of C.P.O. notices. This is by way of contrast to the C.P.O. notices dated 4th March, 1991 served on Muirís Cleary, being notices nos. 12 and 13, which purport only to apply to his interest in the great commonage on the island and do not cover the buildings, including the beehive hut and old post office, or fine lands in his two registered holdings and his unregistered holding, all of which he bought jointly with Arne Jauch. The Plaintiffs submit that if this issue has been rendered moot by the C.P.O. notices dated 28th April, 1997 served on Muirís Cleary and Dr. Jauch, then costs on this aspect should be awarded against the Defendants on grounds comparable to the order for costs made by Johnson J. in Dudley -v- An Taoiseach [1994] I.L.R.M. 321. In Dudley, the moving by the Government to call a by-election obviated the need for the proceedings about to be heard in

123. Court. However, I accept the evidence of Mr. Fadden that the Office of Public Works was advised that Mr. Cleary's wife had died in an accident and, accordingly, he held off with sensitivity from serving the notices for the time being. The first four Plaintiffs in the meantime issued a plenary summons and challenged the power of the Minister for the Gaeltacht to make the statutory instruments prescribing the forms for the C.P.O. This aspect was fully argued before Mr. Justice Kelly who heard and considered carefully various submissions before finally coming to the conclusion that the Minister did have the requisite power. It was prudent of the Commissioners not to proceed until this point had been resolved by the High Court. The deferral of service of the C.P.O. notices until April 1997 may well have lulled Mr. Cleary and Dr. Jauch into a false sense of security and have convinced the Plaintiffs of further unfairness and discriminatory behaviour. Nevertheless the initial holding off of the service of the C.P.O. notices was on compassionate grounds and the subsequent delay was justified by the prudence of awaiting the outcome of the challenges dealt with in the judgment of Mr. Justice Kelly.

124. The Plaintiffs submit that for all practical purposes the 1989 Act was a private Act of the Oireachtas in that it was sponsored by a private company, the Foundation, and it almost exclusively targeted the Plaintiffs' property. It is clear that the Foundation was active in lobbying for and sponsoring the legislation and the Act contains provisions giving the Foundation an advisory role and certain delegated functions. The Plaintiffs suggested that fair procedures required that the Plaintiffs be given some advance notice of the proposed Bill and an adequate opportunity to comment on it. The Plaintiffs drew comparisons with the protective procedures adopted in respect of private Acts when the persons likely to be affected by the provisions are put on notice thereof and given an opportunity to make objections and representations. However, the 1989 Act has been passed as a public general Act. The Court has no function at this stage to consider whether the 1989 Act ought to have

125. The Plaintiffs have criticised the speed of passage of the 1989 Act through the Houses of the Oireachtas. The Court is not concerned with the speed of passage of the Act but concentrates on its constitutionality.

126. The Plaintiffs contend that the Blasket islands as an archipelago are an integral unit and that it is unreasonable to single out the Great Blasket. However, there was ample evidence that the Great Blasket island held the community which produced the literature and contained the homes of the authors. I accept the evidence of Professor Almquist with regard to the importance of the Great Blasket in the folklore tradition. There was convincing evidence of a number of the witnesses particularly Muirís MacConghail in respect of the merit of the wonderful literary output of the islanders. I was also impressed by the evidence of Professor Barker and Ciaran O'Connor with regard to the "built heritage" in the village having intrinsic value worthy of preservation. The Court should be slow to interfere with allocation of resources by the Oireachtas.

127. The contents of the Treaty of Friendship, Commerce and Navigation between Ireland and the USA dated the 21st January, 1950 is not enforceable by individual citizens of the United States or of Ireland against either of the States; being a treaty, it does not take precedence over an Act of the Oireachtas. It is not part of our national law, and does not give rise to a cause of action by an individual.

128. The fifth named Plaintiff is a German national and challenges the 1989 Act, particularly section 4, as being contrary to Article 6 of the EC Treaty. The relevant part of Article 6, which was formerly Article 7, as now amended reads:-

129. This Article prohibits discrimination on the basis of nationality, including indirect discrimination or discrimination by impact. When one considers section 4(2) of the 1989 Act one realises that land which is owned by a person who has owned or occupied it since 17th November, 1953 and was ordinarily resident on the island before that date, or a relative of such person, is almost certainly land owned by an Irish national. Since all of those exempted by section 4(2) from being subject to compulsory acquisition were likely to be Irish nationals,

130. It was held that the plaintiffs had established that the provision operated mainly to the detriment of nationals of other Member States, in that the majority of law graduates of the named universities were nationals of Ireland whereas the vast majority of law graduates of Queen's University Belfast were nationals of other Member States.

131. The basis of Laffoy J.'s decision in Bloomer is that the particular piece of legislation had the primary effect of discriminating against a national of some other EC country. By contrast, the exemption in section 4(2) discriminates in favour of a particular class against other Irish citizens and EC nationals who have property interests on the island. While the fifth Plaintiff, Dr. Jauch, is a German national and has a very real interest in these proceedings, nevertheless such interest as he has in the lands comes to him from his brother Arne who was an Irish citizen. While I am satisfied that Dr. Jauch has an adequate interest in the matters in issue in this case to have locus standi, nevertheless his actual interest in the lands comes via his brother Arne's estate which is an Irish and not a German estate. Thus, the effect of the legislation is the same on Muirís Cleary's holding as it is on the other moiety which belonged to Arne Jauch and, accordingly, I do not think that the submission about indirect discrimination by impact against a German national is in point in the actual situation here.

132. A conflict arose between the parties as to the meaning of "lineal descendant" in section 4(4). It was first contended on behalf of the Defendants that "relative" in section 4(4) is confined to a person who is actually alive at the date of the passing of the Act. Subsequently, this submission was amended and it was contended that the "relative" in section 4(2)(a)(ii) is to be ascertained at the date of service of the C.P.O. notices, some being served in March 1991. This is not the plain meaning of the words. If the Oireachtas intended to limit "relative" and in particular "lineal descendant" to a specific point in time, then the

133. In the part of the Constitution dealing with Fundamental Rights, under the heading Personal Rights, the relevant part of Article 40 reads:-

134. Under the heading Private Property, Article 43 reads:-

135. The construction and application of these two Articles and their interrelated effect on each other has evolved over the years.

136. There is a similar guarantee in Article 1 of the first protocol to the European Convention on Human Rights and Fundamental Freedoms (see D.G. Harris et al. Law of European Convention of Human Rights , 1990, chapter 18).

137. The Plaintiffs assert that the 1989 Act, especially section 4, is an unjust and constitutionally impermissible attack on their property rights. In order to avoid the perils of subjective notions, I propose to sift previous cases for established criteria as to what is an unjust attack which is also repugnant to the Constitution.

138. He regarded the necessities of the common good as a nebulous concept.

139. On appeal to the Supreme Court, Maguire C.J. said at p.23:-

140. Subsequently, he said at p.83:-

141. This strong pronouncement was somewhat toned down by O'Byrne J. in Foley -v- Irish Land Commission [1952] I.R. 118 as the social purpose of the Land Acts was enough to justify the fairly radical mechanism they contained because this served the exigencies of the common good although at the individual's expense. However, both cases are in harmony and in contrast to Hanna J.'s view to the extent that the Supreme Court refused to concede sole discretion to the Oireachtas in the matter of property. The Sinn Féin Funds Act case has similarity to the present case in that both Acts have a narrow focus on a restricted target in contrast to being measures of general application.

142. There is a duty placed on the Court to try to protect both an individual's right to private property and to take cognisance of social justice. Once the High Court is put on notice of an injustice in fact being done to an individual, then it could be failing in its constitutional duty if it refuses to interfere so as to vindicate the rights of the oppressed party.

143. The Plaintiffs particularly rely on two cases. Firstly, they cite the Sinn Féin Funds Case and draw attention to the passage at p. 70 in the judgment of Gavan-Duffy P. in the High Court:-

144. This is relevant to the claim that the 1989 Act specifically targets the Plaintiffs and is akin to a "bill of attainder" and is dealt with below under that heading.

145. Secondly, the Plaintiffs rely on O'Brien -v- Bord na Móna [1983] IR 255. The plaintiff O'Brien had objected to the defendant Bord's acquisition of his lands with his main contention being that it was not necessary for the purposes of the Turf Development Act, 1946 that his parcel of land should be vested in the defendant Bord permanently and that such parcel should revert to him whenever the Bord had completed the extraction of turf from it. In the course of his judgment, Keane J. said at p.267:-

146. Subsequently, at p. 274 he said:-

147. It is implicit in the Supreme Court decision in O'Brien -v- Bord na Móna that the Court was looking at the provisions of Article 43 when holding that the legislation did not infringe the constitutional guarantee of private property because it promoted the common good.

148. However, the Plaintiff won on his main contention because the precise objection of the plaintiff was never brought to the notice of the members of the board of Bord Na Móna before they made their decision to acquire the lands. His point was that his land should be acquired for such period only as was necessary for the extraction of the peat from his lands and that, thereafter, his lands should revert to him or his successors. Section 29 of the Turf Development Act, 1946 provided that Bord Na Móna for the purpose of exercising or performing any of its functions may do all or any of a number of things including the acquiring of any land either permanently or temporarily. The failure by the deciding authority to hear the objections and representations of the owner of the land before deciding to acquire it, meant that the requirement of fair procedures and natural justice in the process of compulsory acquisition of property was not complied with and it was too fundamental and important a requirement to be fulfilled by proof that objections would have been rejected if they had been entertained, even though there was evidence that there was an unchanged and apparently unchanging policy at Bord na Móna to acquire the fee simple of bog lands.

149. The 1989 Act is clearly an encroachment on and extreme case of the delimitation of the exercise of the Plaintiffs' property rights. The following inferences can be drawn in respect of the principles of law from the cases. In order to ascertain the constitutionality of the 1989 Act, the Court must ask

150. Furthermore, these questions must be examined against the background of the presumption of constitutionality and the margin of tolerance allowed to the Oireachtas in making the assessment of what is required to fulfil the exigencies of the common good. In this regard, the word "exigencies" has a connotation of more than "useful", "reasonable" or "desirable"; it means "necessary" and implies the existence of a pressing social need. The notion of necessity is linked to that of a "democratic society". A measure cannot be regarded as necessary in a democratic society, based on tolerance and broadmindedness, unless it is proportionate to the legitimate aim being pursued. Furthermore, when the exigencies of the common good are called in aid to justify restrictions on the exercise of the rights of private property, being fundamental rights spelt out in the Constitution, it should be remembered that the protection of the fundamental right, is one of the objects which needs to be secured as part of the common good. Has a pressing social need been demonstrated which justifies the impugned legislation and its encroachment on the basic rights of private property? Is the amount of the encroachment proportionate to a legitimate aim being pursued and to the difference in the Plaintiffs' situation which requires the delimitation of their rights?

151. The Plaintiffs suggest a number of propositions can be drawn up. Firstly, they say that in cases concerning the outright expropriation of land (as contrasted with regulating the use of property or taxation measures), the relevant test is that contained in Article 43.2.1, that is such a delimitation of private ownership to be valid must be not only reconcilable with the exigencies of the common good but also with the principles of social justice. Secondly,

152. That case concerned ploughing up and destruction of a promontory fort. It is noteworthy that the judgment pointed out that the legislation was not arbitrary or selective and that it applied to all national monuments wherever situated and whoever owns them. I respectfully agree that Articles 43 and 40.3 should be read in conjunction. What is social justice in a particular matter depends on the circumstances of the case. Any State action that is authorised by Article 43 and passes the tests laid down by Article 43 has to be necessary for the common good and cannot by definition be unjust for the purpose of Article 40.3.2. Conversely, a restriction on an individual's property rights which is manifestly unjust is unlikely to be regarded as consistent with social justice or as warranted by the requirements of the common good.

153. The Defendants contend that a number of cases are authority for the proposition that the Courts must accord the Oireachtas a very wide margin of tolerance in assessing the pressing social needs in any case. In this context, they rely particularly on MacMathúna -v- Ireland & The Attorney General [1995] 1 I.R. 484. The Supreme Court held that where an Act was passed through the Oireachtas as a money Bill, the Court's concern, on a challenge to its constitutional validity, was whether what had been done adversely affected constitutional rights, obligations or guarantees and that the Courts could not enter into the area of taxation policy or concern themselves with the effectiveness of the choices made by the Government and the Oireachtas. In this respect, the Supreme Court was following the decision in Madigan -v- The Attorney General [1986] I.L.R.M. 136 which was a case about taxation. In MacMathúna, the Court was dealing with the allocation of social welfare allowances and held that the Courts could not adjudicate on the fairness or otherwise of the manner in which other organs of State had administered public resources. I have no doubt that the Defendants are correct that the Courts would be slow to intervene in cases

154. The crucial distinction is the different approach in cases involving fundamental rights as opposed to cases involving allocation of welfare payments as in Dandridge and MacMathúna. The margin of appreciation allowable to the Oireachtas is not as extensive in a case involving the fundamental right to private property as it is, by contrast, with regard to cases involving allocation of resources or taxation measures (such as MacMathúna and

155. Madigan). The present case is not regulatory or allocatory but expropriatory and affecting a fundamental right protected by Article 40 and Article 43. Furthermore, while the Act has been enacted as a public general Act, it is not a measure of general applicability but impinges on one area, the Great Blasket and affects one small named group of landowners, namely the Plaintiffs, and exempts other landowners, by this time almost certainly on the grounds of ancestral lineage.

156. The Plaintiffs also referred me to Clancy -v- Ireland [1988] I.R. 326. In that case, Barrington J. refused to make a declaration of invalidity in respect of section 2 of the Offences Against the State (Amendment) Act, 1985 as the machinery of the 1985 Act provided for a fair hearing and compensation in cases of error and thus constituted no more than a permissible delimitation of property rights in the interests of the common good and was not therefore an unjust attack upon private property contrary to Article 40 and Article 43 of the Constitution. One of the circumstances influencing Barrington J. in upholding the legislation providing for the confiscation of monies in bank accounts was the fact that the legislation provided for a fair hearing.

157. While the Court should be reticent about interfering with the assessment by the Oireachtas of what is necessary in the interests of the common good, the matter is not exclusively within the discretion of the Oireachtas. For the Court is bound to examine the situation from the aspect of the protection of the fundamental rights in Articles 40 and 43 including both the right of all citizens to be held equal before the law and the right to protections for private property.

158. The question of whether there has been an unjust attack on the Plaintiffs' property rights and the examination of whether there are pressing needs of the common good falls to be considered against the background of the presumption of the constitutionality of

159. The objectives of the Act are set out in the long title and in section 2 (see above). Neither the archaeological remains nor the flora and fauna of the Great Blasket are peculiarly distinctive. The Plaintiffs concede that the exigencies of the common good often justify expropriation for the construction of roads, hospitals or public housing but they suggest that there is no precedent for compulsory acquisition of an area which has an exclusively cultural significance. However, in Tormey -v- Commissioners of Public Works , McLoughlin J., in an unreported judgment delivered on 20th December, 1968, held that the Commissioners were entitled to acquire, under section 11(1) of the National Monuments Act, 1930, 57 acres "being an area of the Hill of Tara containing an extensive earthworks".

160. In the unanimous Supreme Court judgment delivered by Ó Dálaigh C.J. on 21st December, 1972 (unreported), the Chief Justice said at p.6:-

161. The appellant Mrs. Tormey had particularly contested the acquisition of a ten acre field but the Chief Justice held at p.15 that:-

162. He repeated McLoughlin J.'s vivid phrase that

163. Thus the Supreme Court gave "national monument" a wide connotation.

164. This case is helpful on four aspects. Firstly, it is an example of the State using compulsory purchase powers to acquire a national monument. Secondly, the area being acquired was extensive being much larger than the Great Blasket and with consideration being given to the preservation of the amenities. Thirdly, the Court stressed it would construe strictly the terms of an Act which interferes with the rights of private property. Fourthly, the Chief Justice in conclusion referred to the story of Cormac MacAirts' remark made to soothe Odran who was resentful at being expropriated from lands at Tara; I will return to what the Chief Justice said at the end of this judgment.

165. Cogent evidence has been given by Muirís MacConghail and Professor Almquist about the importance of the literary and folklore heritage of the Great Blasket and the need to preserve the environment of the writers. The Court must take cognisance of and pay respect to the view of the Oireachtas with regard to the importance of preserving the

166. The Plaintiffs suggest that there were less drastic means open to the State to achieve substantially the same ends as are sought to be achieved by section 2 of the 1989 Act. They contend that existing legislation in 1989 such as the National Monuments Acts, 1930 to 1987, the Local Government (Planning & Development) Acts, 1963 to 1990 and the Wildlife

167. Act, 1976 would have between them sufficed to restrict development on the island and to preserve the ambience. The Great Blasket had been designated as an area of prime special amenity in each County Kerry Development Plan since 1968. The houses of the three leading writers were also protected under the National Monuments Acts. Furthermore, there was considerable unchallenged evidence that the Plaintiffs had expended their own time and money in trying to preserve the buildings and that the Plaintiff James Callery had an enviable reputation as a preserver and displayer of Irish heritage property at Strokestown House in County Roscommon. I accept that the Plaintiffs offered and are still willing to cooperate with the State in respect of heritage preservation.

168. The Plaintiffs say that the very wording in Article 43.2.2 bears out their argument that the State should have adopted less severe methods to achieve the objectives set out in section 2. Implicit in their arguments is the requirement that the State observe the principle of proportionality in the reconciling of the rights of private property with the exigencies of the common good. If the objectives can be achieved without the need for complete acquisition, then the exigencies of the common good do not require such draconian measures as are contemplated and contained in the 1989 Act. In this context, the Plaintiffs rely on Hauer -v- Rhineland Pfalz case 44/79, Sporrong & Lonnroth -v- Sweden [1983] 5 EHRR 35 and Pine Valley Developments Limited -v- Ireland [1991] 14 E.H.R.R. 319.

169. As the applicants were not actually deprived of their possessions, the issue to be decided was whether a fair balance had been struck between the demands of the general interest of the community, which imposed limits on the applicants' exercise of their rights, and the requirements of the protection of the individual's fundamental rights. Although it was found that the State had a wide margin of appreciation and toleration in this area the relevant laws were too inflexible and imposed such individual and excessive burden on the plaintiffs that they infringed the article.

170. The Plaintiffs stress that it is very rare in this or any other EC country for the State to take steps compulsorily to acquire a property for cultural reasons. They point out that the usual memorial for literary renown are an author's books. They suggest that the amenity of the island has been preserved by the Plaintiffs and that the Plaintiffs' endeavours to assist visitors' access by keeping a guesthouse going on the island and in preserving the buildings is in marked contrast to the State's attitude to the property acquired in about 1976 which has since been left derelict. If there was such a pressing need for preservation, why were no steps taken over the years by the State to purchase and preserve the homes of the writers and the other buildings in the village? They point to the advertisement in the Wall Street Journal as the catalyst for the activities of the Foundation and suggest that the 1989 Act was not an Act having general effect but had as its target a small specific group of land owners on the Great Blasket. They submit that if nationalisation of the island was the only reasonable and proportionate method of securing the objectives in section 2, then the exemption of the lands belonging to the pre-1953 residents and their descendants defeats the objective of protecting and preserving the entirety of the island.

171. Conclusions in respect of rights of property and equality and findings on proportionality and alternative less drastic measures are interrelated and will be set out after consideration of the discriminatory provisions in section 4.

172. The situation has to be scrutinised against the provisions of Article 40.1 and Article 40.3. There is an equivalent guarantee in Article 14 of the European Convention on Human Rights. In Quinn's Supermarket -v- Attorney General [1972] I.R. 1, Walsh J. in the Supreme Court said of Article 40:-

173. The terms of the exemption in the regulations about trading hours which exempted kosher shops generally from an order which regulated weekday opening for everybody was made so as to permit Jews to buy kosher meat for an hour after 6.30 p.m. on Saturday. This was to avoid Jews offending either their religion or the law. However, the terms of the exemption were not confined to Saturday and so the discriminating exemption went further than was necessary for the protection of religious observance. Accordingly, the exemption was invalid. In short, it was excessive and not proportionate to the need. An examination of any delimitation on the exercise of a person's fundamental rights should include the requirement of proportionality. The Plaintiffs submit that the following general propositions pertain:-

174. A practical example of proposition 4 occurred in Brennan -v- Attorney General [1983] I.L.R.M. 449. Barrington J. reviewed the history of the rating system on agricultural land which was based on a valuation which had been done over a century before. A group of farmers complained about the anomalies which were by then involved. Barrington J. said at p.486:-

175. The Supreme Court upheld the basis of the decision insofar as it was of the view that if reasonable uniformity of treatment by valuation and assessment is lacking, the inevitable result will be that some rate-payer is required to pay more than his fair share ought to be. This necessarily involves an attack upon his property rights which by definition becomes unjust as the discrepancies increase as time passes.

176. Section 4 provides for acquisition of land on the Great Blasket by the Commissioners. Section 4(2) exempts from compulsory acquisition land that is owned or occupied by a person who has owned or occupied it since 17th November, 1953 and was ordinarily resident on the island before that date or land that is owned or occupied by a relative of a person, where that person owned or occupied it and was ordinarily resident on the island before that date. This has been referred to as "exempted land" and for ease of reference Counsel referred to the former residents and their relatives as "pedigree folk". In the last century, land on the island was owned by the Earl of Cork and let to tenants. Early in this century, the Congested District Board purchased nearly all the land and divided the property on the island into 25 individual folios with each folio having on it a dwelling-house and curtilage, and a number of small, segregated and scattered fields in the fine lands, being the arable area inland of the Trá Bán. Each of the 25 property owners was also entitled to a further undivided 1/25th of the greater commonage together with such other rights in common of grazing or turbary as they might have. There were also three smaller commonages held in undivided shares by some of these land owners. The fine lands are a patchwork quilt of ownership as shown on the plan thereof. Section 4 of the 1989 Act exempts the pedigree folk from the compulsory acquisition powers in respect of their houses and fine lands but excepts from the exemption the area of land in the greater commonage and lands subject to rights in common of grazing or turbary. The definition of relative in section 4(4) is wide and includes lineal descendant without any limitation on the number of remote generations involved. The Plaintiffs, who between them own at least 19/25ths of the island are subject to the full rigours of the compulsory acquisition powers and have been served with C.P.O. notices. Muirís Cleary, who owns a part share in at least two folios, has also been served with a C.P.O. Notice. A few others, namely Vivienne Richie, Margaret Bakewell and an Ó Guithin and a Dunleavy who own tiny plots probably with possessory title, have also been served; their lands would not be exempt as being on the great commonage. The Plaintiffs contend that this legislation is unique and peculiar in that it grants compulsory purchase powers in order to preserve premises and fields once inhabited by writers but which for the most part have been deserted now for over 40 years unless conserved by the Plaintiffs.

177. Two categories of landowners are created by section 4(2) of the 1989 Act. The first category encompasses those owners who were ordinarily resident on the Great Blasket before 17th November, 1953 and their relatives, including lineal descendants for all time; the other category is any person who is not a native resident or relative of a native resident who has bought land on the island, for example the Plaintiffs. This introduces an unusual and dubious classification with ethnic and racial overtones.

178. While the plaintiff O'B. lost in the Irish Courts, in the subsequent case of O'Brien -v- Ireland brought before the Court of Human Rights in Strasbourg on the grounds of the State's failure to comply with the provisions requiring equality of treatment in the Convention, the State compromised and settled the plaintiff's claim apparently on the basis of lack of justification for such discrimination.

179. The Plaintiffs submit that all property owners on the island should be similarly treated. The island was deserted as long ago as 1953 and only in recent times has there been any revival of interest in the island. They submit that the use of a blood connection or pedigree as indicative of cultural continuity or as a criterion for legislative differentiation in respect of expropriation requires much justification; and that this does not exist in this instance and to classify landowners in reality as culturally acceptable and unacceptable is objectionable in itself and is redolent of apartheid.

180. What do the Defendants say is the justification for the different treatment which renders the discrimination created by the Act compatible with the Constitution?

181. The starting point is that, given the literary and folklore connections and the peculiar status of the village buildings referred to by Professor Barker and Ciaran O'Connor, there is evidence that the village is distinctive and should be preserved. The Defendants say that the discrimination in respect of the land holdings of the "pedigree folk" is justified by the evidence of Professor Ó Riagáin. He said that the culture to be preserved was neither that of an historically remote community or of a social group which was currently inhabiting the island - but which inhabited the island in the 19th and early 20th century until 1953; as the island was inhabited so recently and within living memory, the inhabitants and their descendants were sources of information. He added that he would personally find it offensive to have a heritage park developed in a Blasket island which, so to speak, eliminated from the culture that it presented the pain and the torment and the destructiveness of emigration, which was the sociocultural process that brought that community to an end. He also said that if the function of the Act was to preserve and demonstrate and to foster the study of the culture of the island then to retain relationships with second and third generation inhabitants, whether they be living in Ireland or abroad, was a tangible, practical way of demonstrating the experience of emigration which was the dynamic of the culture.

182. I do not think that even if one were to accept Professor Ó Riagáin's evidence in its entirety this could justify this most unusual discrimination based on ethnic grounds. It is stretching credulity and unrealistic to think that lineal descendants of the inhabitants are likely to return so as to help to demonstrate the culture of the pre-1953 community. Emigration was a factor in the life of the islanders but demonstration of this by allowing

183. I am extremely sceptical of the proposition that deserted and decaying holdings continuing to belong to lineal descendants of the pedigree folk can demonstrate the

184. Emigration is a feature of much of the west of Ireland. The desire for security of tenure of land has also been a strong feature of that culture. The thrust of the 1989 Act is to acquire compulsorily the Plaintiffs' lands and leave other lands on the island in the ownership of the pedigree folk. The effect would be that the former islanders (of whom few if any now survive), and their relatives and descendants can sell their holdings on the open market whereas by contrast Kay Brooks is to have her lands compulsorily acquired. She is a widow whose ancestors came from Ireland, who lives in the same part of Massachussetts as many of the emigrant islanders and who has put her money and energy into preserving the buildings and environment of the Great Blasket.

185. In determining the constitutionality of the 1989 Act at present, the Court can take into account the present and prospective operation of the Act. If the present exemption were confined to a former inhabitant who had maintained an active association with the lands on the island then the objection would be weaker. However, the exemption is far more extensive than this and is in favour of lineal descendants of the former inhabitants without limit in time or remoteness of relationship.

186. It has already been acknowledged that the Legislature has a considerable margin of tolerance and appreciation in respect of the notion of the exigencies of the common

187. Both parties have referred me to Morey -v- Doud 354 U.S. 457. This was an appeal from the United States District Court for the Northern District of Illinois to the US Supreme Court. The Illinois Community Currency Exchanges Act regulated Currency Exchanges engaged in the business of issuing or selling money orders. It forbade them to do business on the premises of any other business; but it exempted from all of its provisions money orders sold or issued by the American Express Company, an old established worldwide enterprise. The Court held that the application of the Act to the appellees denied

188. At page 465, he went on:-

189. This reinforces the Defendants' point that the overall burden of proof is on the Plaintiffs but the Plaintiffs are also entitled to emphasise the Court's proviso that caution has to be exercised when the discrimination is of an unusual character. The exemption clause in this case is based on lineage which is highly unusual and it was urged that it was unprecedented in this country. Furthermore, the Court is scrutinising the situation against the background of two articles protecting fundamental rights. The long title to the Act uses the phrase "in the interests of the common good", but the word "exigencies" and indeed "riachtanach" seem to be much stronger and indicate a much more pressing need than merely "in the interests of the common good". The Constitution was enacted by the People on 1st July, 1937 against the historical background of the growth of fascism and totalitarian states. Article 43.1 affirms the State's acknowledgement that man in virtue of his rational being has the natural right, antecedent to positive law, to the private ownership of external goods. The phrase "antecedent to positive law" indicates a right which is previous to the notion of a feudal grant from a liege lord and also connotes a rejection of fascism and totalitarianism in the sense of recognising the right of the individual to own property rather than the State owning all assets.

190. What do the Defendants say is the pressing, demanding or driving need which necessitates that the Plaintiffs' lands rather than the lands of the exempted folk be taken in the interests of the common good?

191. The purpose of the 1989 Act is set out in the long title and in section 2 of the 1989 Act: the aim is to create a park to be maintained, managed, controlled, preserved, protected and developed by the Commissioners for the use and benefit of the public as a park in which the historic heritage, culture, traditions and values of the island and its inhabitants will be preserved and demonstrated and its flora, fauna and landscape will be protected (emphasis by my underlining). Since the last of the inhabitants were evacuated on 17th November, 1953, it is the heritage, culture, traditions and values of the pre-1953 inhabitants which are to be preserved and demonstrated. The Defendants say that it would be

192. The term "invidious discrimination" does not give rise to ready identification; however, in Murphy -v- Attorney General [1982] I.R. 241, Kenny J. in the Supreme Court said at p. 286:-

193. The 1982 edition of the Concise Oxford Dictionary says of "invidious": "giving or likely to give offence, especially by real or seeming injustice." The 1989 Act has undoubtedly aroused bitter resentment and has been described by Counsel for the Plaintiffs as unfairly and offensively discriminatory.

194. I conclude that there is discrimination against the Plaintiffs and that it is invidious, unfair and offensive as it is discriminatory treatment between two classes of citizens based substantially on pedigree. The Defendants contend that nevertheless the differentiation is justified by a legitimate legislative purpose. Walsh J. in O'B. -v- S. said that legislation which discriminates between citizens can be justified by other provisions of the Constitution. However, no such other provision seems in point and, in this case, the exigencies of the common good do not provide justification because the actual aims of the 1989 Act could be better achieved by dealing with the property as an entity without fragmentation of ownership on a criterion of lineage. Walsh J. further adds that legislation which is unreasonable, unjust or arbitrary cannot be justified under any provision of the Constitution.

195. In the absence of justification in the interest of the exigencies of the common good under Article 43, the legislation falls to be considered under the provision of Article 40. The difference between the two categories of landowners is insufficient to justify the nature of the differentiation made in the 1989 Act. In addition, Article 40.3.2 guarantees that the State shall by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the property rights of every citizen. The legislation is expropriatory affecting a fundamental right which should be protected by Article 40 and Article 43.

196. It is difficult to see what steps were taken by the State to vindicate the Plaintiffs' property rights. Evidence was given that officials of the State had no less than 43 meetings with members of the Foundation before June 1989 which rather contrasts with the

197. I conclude therefore that, in the absence of any real legitimate legislative purpose requiring the difference in treatment of the Plaintiff landowners and the exempted folk, the discrimination in the 1989 Act cannot be justified as the interests of the common good do not necessitate such measures. Furthermore, as the difference of treatment between the two categories of landowners created by the Act bears no relation to the quality of the actual difference between the two categories of landowners the discrimination is disproportionate and invidious. The requirement of proportionality has not been respected. Finally, the treatment of the Plaintiffs by the State authorities with regard to the legislation and the manner in which the State attempted to enforce the regime constitutes a failure by the State to protect the property rights of the Plaintiffs from unjust attack, to vindicate those rights or to regulate them where injustice has been done in breach of Article 40.3.2, and to regulate them in accordance with the principles of social justice, and to delimit by law the exercise of the rights guaranteed and recognised by the Constitution in accordance with the exigencies of the common good contrary to Article 43.2.3 of the Constitution.

198. The Plaintiffs base another objection on the equality provision in Article 40. They submit that the 1989 Act cannot properly be regarded as a law of general application

199. The Plaintiffs say that the Oireachtas can pass an amended Heritage Act with powers of compulsory purchase in respect of islands generally if, for example, they are of historical, archaeological or cultural importance but that it is objectionable that one small specific group of landowners on one particular island should be targeted. By analogy, Counsel referred to Article 25.1 of the Constitution of South Africa which states:-

200. The U.S. Constitution forbids enactment of such laws directed against specific individuals; Article 1 section 9(3) states " No Bill of Attainder ... shall be passed (by Congress) ", and Article 1 section 10(i) states " No State shall ... pass any Bill of Attainder ... ".

201. One of the essential protections against arbitrary and unreasonable government is the requirement that laws should be of general application and not targeted against a specific minority. For example, in Railway Express Agency Inc. et al. -v- New York , 336 U.S. 105, a New York city traffic regulation forbade the operation of any advertising vehicle on the streets, but excepted vehicles which have upon them business notices or advertisements in respect of products of the owner not being used merely or mainly for advertising. In a concurring judgment, Mr. Justice Jackson said:-

202. These are sage observations.

203. An example of undesirable "ad hominem legislation" and the strictures of Courts in respect thereof is to be found in Liyanage -v- The Queen [1967] 1 AC 259, an appeal to the Privy Council from the Supreme Court of Ceylon. There had been an abortive coup in Ceylon. Ex post facto legislation was brought in to change the law in respect of sedition from trial by jury and also imposed a minimum sentence of ten years together with the confiscation of the convict's property. Lord Pierse on the appeal regarded these alterations as constituting a grave and deliberate incursion into the judicial sphere. At p.291 he stated:-

204. When William Blackstone wrote about "municipal law" he was not referring to the particular laws and customs of a municipium or town but rather to any one state or nation which is governed by the same laws and customs. In this context the reference is to a rule of law or civil conduct which is not a transient sudden order from a superior to or concerning a particular person; but something permanent, uniform and universal. In short, he is describing a general law of universal application in contrast to legislation which has a separate target individual or group.

205. While this Liyanage case involved a criminal trial and a usurpation by the legislature of judicial powers inconsistent with the written Constitution of Ceylon, nevertheless the same principles prevail in respect of separation of powers and discriminatory executions of power under the guise of forms of legislation in regard to expropriation of property of a specific target person or tiny group.

206. The applicant failed to discharge the onus of showing that the UDC were moved by improper motives. While the facts did not support the applicant's contention nevertheless the Court recognised the impropriety of resolutions which were directed ad hominem and were unfairly discriminatory and accordingly invalid. It appears that the principle applies to legislation which is not general in effect but instead has a particular target and is aimed very narrowly ad homines at a tiny specific group of landowners with confiscatory intent.

207. In the Irish Constitution, unlike in the United States Constitution or the South African Constitution, there is no explicit ban on legislation which contains Acts of attainder against a tiny specifically designated group of people. However, such an Act which also at the same time specifically exempts another group who also own similar lands on the one

208. I do not think the fact that in 1991 C.P.O. notices were served on Margaret Bakewell, Vivienne C. Richie, Ray Stagles and Ó Guithín and Taylor Collings is of any great significance as all these people had miniscule holdings and I think that in nearly every instance their lands in any event were on the great commonage.

209. Thus the 1989 Act is unfairly undiscriminatory in its application and fails to comply with the provisions of Article 40.1 of the Constitution of Ireland. The application of the power to acquire land compulsorily only to the Plaintiffs' lands, and not to the similar lands exempted by section 4(2) and belonging to former inhabitants and their relatives and descendants, amounts to an unjust and arbitrary expropriation. The narrow application of the 1989 Act amounts to a form of "bill of attainder" or the targeting in reality of only the Plaintiffs whereby the Plaintiffs' lands are subjected to the power of compulsory acquisition. The expropriatory powers in the 1989 Act, insofar as they purport to vest in the first named Defendant the power to acquire land compulsorily on the Great Blasket island, are invalid, having regard to the provisions of the Constitution of Ireland and, in particular, Article 40.3, Article 40.5 and Article 43 thereof on the grounds already set out, and on the further ground that the legislation is arbitrary and discriminatory and, in effect, applies a compulsory power to acquire certain lands owned only or predominantly by the Plaintiffs. In so doing, the Legislature fails to defend and vindicate the personal rights of the Plaintiffs in breach of

210. Article 40.3.1 and fails to protect from unjust attack the property rights of the Plaintiffs in breach of Article 40.3.2 and also fails to vindicate the property rights of the Plaintiffs in the case of injustice done in breach of Article 40.3.2.

211. A further challenge to the constitutionality of section 4 of the 1989 Act is based on the contention that the Act does not provide a constitutionally adequate or valid mechanism for assessing the quantum of compensation to be paid in the event of a compulsory purchase. It was clear from the evidence that the Plaintiffs had indicated a willingness to submit their differences with the State on this aspect to arbitration involving an international valuer, rather than the Irish property arbitrator, but their offer was not acceptable to the Defendants. The fourth named Plaintiff, Kay Brooks, the widow of Phillips Brooks, both of whom expended time, energy and their own resources latterly through her agent Peter Callery on trying to preserve property and amenities on the Great Blasket and to ensure access for visitors to the island, is particularly upset at the threat of compulsory acquisition. According to the evidence of her solicitor, she has consistently made the point that in the U.S.A. the acquisition of land compulsorily for public purposes can only be done on foot of a Court order. She has succinctly made the points that in Ireland the property arbitrator is an imposed and not an agreed arbitrator; the arbitrator is not a Judge; and under the provisions of the Acquisition of Land (Assessment of Compensation) Act, 1919 (the "1919 Act"), the arbitrator need not and does not give reasons for the award either in respect of the factual or legal basis for the decision. There is simply an award and, while there is a provision in relation to the stating of a case on a question of law arising in the course of the proceedings, because the decision of the property arbitrator is final and binding on the parties, in the absence of a reasoned judgment there is no appeal nor is there the usual supervisory role of the High Court by way of certiorari, except in very limited circumstances such as the misconduct of the arbitrator. In view of the acknowledged expertise and integrity of those nominated to be the property arbitrators in this country, allegations of impropriety or misconduct are unlikely. The Plaintiffs contend that the State is failing to vindicate and protect their right to and rights of private property secured by Articles 40 and 43 of the Constitution unless the strategy to set aside their right to enjoy their property is sanctioned by a Court order made for explicit reasons of social justice and in the interest of the exigencies of the common good.

212. Section 4(3) of the 1989 Act states that:-

213. Paragraph 5(2) of the Schedule states:-

214. The 1919 Act as amended provides for determinations by property arbitrators who are not Judges appointed under the Constitution and do not have the tenure of Judges. Section 6 of the 1919 Act renders the arbitrator's award final and binding on the parties subject to the stating of a special case for the opinion of the High Court on a point of law. The Plaintiffs have not sought a declaration that the Act of 1919 or any part of it is unconstitutional but say that the constitutionality of the 1919 Act is relevant to the question of whether the compulsory acquisition is fair bearing in mind the provisions of Article 40 and Article 43 of the Constitution. In this context, the Plaintiffs seek to rely on the type of order made by the Supreme Court in Brennan -v- Attorney General [1984] I.L.R.M. 355 in which the Court held that section 11 of the Local Government Act, 1946 was to be impugned in place of section 34 of the 1852 Act . Section 11 provided for the collection of County Rate on the basis of the 1852 system of valuation which Barrington J. had found to be "shot through with unnecessary anomalies and inconsistencies". The Plaintiffs' contention is that the incorporation of the 1919 Act procedures into the 1989 Act is invalid and constitutionally infirm because:-

215. The Plaintiffs contend that the assessment of compensation was an administration of justice by persons who are not judges and that this contravened Article 64 of the 1922 Constitution and, accordingly, was never carried over into the law of the Irish Free State under Article 73 of that Constitution and, therefore, could not have been further carried over by Article 50.1 of the 1937 Constitution.

216. The Plaintiffs submit that, if any of the arguments in respect of repugnancy are successful, then there is no prescribed constitutional method of assessing compensation under the 1989 Act and, accordingly, the powers of compulsory acquisition are repugnant since valuable rights of private property involving heritage land are being expropriated without a compensation mechanism.

217. Before making an analysis of the Plaintiffs' specific points, it is helpful to make a quick survey of the position in kindred jurisdictions. The Australian Constitution, Chapter II, Article 71 vests judicial power in the High Court and such other Federal Courts as are created; the Judge's tenure is constitutionally protected according to P.H. Lane, a Manual of Australian Constitutional Law (3rd Edition, 1984, pp. 219 to 241). Under the Lands

218. Acquisition Act, 1989, section 82, a party dissatisfied with the quantum of compensation being offered in a compulsory purchase is entitled to go to the Federal Court of Australia; similarly, under the Lands Acquisition (Just Terms Compensation) Act, 1991 of New South Wales and the Land Acquisition and Compensation Act, 1986 of Victoria, there is access to the Courts in respect of compensation.

219. In Canada, according to P. Hogg, Constitutional Law of Canada , 3rd Edition, 1992, pp. 184-196, under the Federal Expropriation Act, 1970, section 29, disputes about the quantum of compensation are decided by a Court.

220. Under the U.S. Constitution, Article III.(1) vests judicial power in the Supreme Court and such other inferior Courts as may be established; Judges of these Courts have constitutionally protected tenure. In Northern Pipeline Construction Company -v- Marathon Pipeline Company , 458 U.S. 50 [1982], the new system of bankruptcy Judges who did not have such protected tenure was struck down. In the U.S.A., compensation for compulsory purchase is determined by the Courts.

221. The South African Constitution of 1996, Chapter 8, Article 165(1), vests judicial authority in the Courts and Article 180(c) permits laws that allow " the participation of people other than judicial officers in Court decisions ". Under the Expropriation Act, 1975, section 14, disputes about the quantum of compensation in compulsory purchases are determined there by the Courts.

222. As for England and Wales, it is clear from Halsbury, Volume 8, (1) para. 202 et seq., dealing with compulsory acquisition that the property arbitrator system has been replaced long since by the Lands Tribunal Act, 1949 and that, as the tribunal is presided over by a Judge, it can properly be regarded as part of the administration of justice.

223. This instructive survey is the result of diligent research by Counsel; however the issue is to be determined particularly by reference to the Irish Constitution and case law.

224. Where land is acquired compulsorily, the measure of compensation to which the owner of an interest in that land is entitled depends on the provisions of the statute governing the compulsory acquisition. The Lands Clauses Consolidation Act, 1845 provided the basic framework for the modern compensation code. The 1845 Act provided a code governing acquisition procedures, and the assessment and payment of compensation. When land was compulsorily acquired as public authorities became more involved in the purchase of land for public purposes, concern arose that the compensation provisions of the 1845 Act were being interpreted too generously by the Courts. The Scott Committee recommended market value as between a willing seller and a willing buyer as the basis for compensation and this recommendation was incorporated into the Acquisition of Lands (Assessment of Compensation) Act, 1919 which laid down six basic rules of valuation. The 1919 Act did not confer any rights to compensation. It was concerned with establishing how compensation was to be measured and determined in default of agreement. The right to compensation, subject to any express provisions that may be in the enabling Act, will normally derive from the 1845 Act. The 1845 Act provided that its provisions should be incorporated in to all Acts conferring powers of compulsory purchase unless expressly varied or excepted by any such Act. The 1919 Act provided that its provisions should apply where compensation is to be determined in a case of compulsory purchase by a government department or any local or public authority. The 1919 Act provisions are expressly incorporated in many post 1922 Irish Acts authorising the exercise of compulsory purchase powers. The Defendants question the Plaintiffs' entitlement to challenge the validity of the 1919 Act provisions incorporated into the 1989 Act. It is true that the Plaintiffs are not yet affected by any decision made by a

225. The Plaintiffs contend that the 1919 Act system involves an assessment of compensation which is an exclusively judicial function. If this contention is correct, then the Plaintiffs submit that this was contrary to Article 64 of the Irish Free State Constitution of 1922 and would not have been carried over in 1937. Article 64 states:-

226. The Courts have taken a pragmatic approach to the continuation of the laws which were in being before 1922. In Geoghegan -v- Institute of Chartered Accountants in Ireland , Murphy J. said (as approved by the Supreme Court in 1995 I.R. 105): he could see no reason in principle why a law enacted in Great Britain in medieval times by the Monarch himself in pursuance of the legislative power which (as well as judicial and executive powers) vested in him not merely as a theoretical concept but as a practical reality could not have passed into the laws of the Irish Free State. The filtering process provided by Article 73 of

227. In the same case dealing with the Fugitive Offenders Act, 1881, Johnston J. said at p. 45 that he thought the Court:-

228. In the light of these pragmatic statements, it is understandable why the 1919 Act did not come under close scrutiny.

229. In the Hully case the Court was concerned with a warrant over the hand of a Justice of the Peace for the City of Lancaster in England which depended for its legality on the relevant sections of the Petty Sessions Act, 1851. One of the grounds of appeal before the Supreme court was that in the circumstances created by the enactment of the Constitutions of the State in 1922 and 1937 the provisions of the Act relating to the backing and enforcement within the State of warrants issued by a foreign State had been rendered inoperable. It is in this context that Lavery J. adopted the dicta of O'Byrne J. in Kennedy. Kingsmill-Moore J. noted at p. 165 that "clearly a strong argument could be put forward that the provisions of SS. 29 and 31 of the Petty Sessions Act, framed for operation in a unitary state, were inconsistent with the Constitution". However, he noted that this argument was rejected by the Supreme Court in the Dowling -v- Kingston cases (No 1) 1937 IR 483 and (No 2) 1937 IR 699. An indication of the standard applied to pre-1922 statutes and the definition of what constitutes inconsistency is to be found in Meredith J.'s judgment in the latter case where, in reference to the difference in the position as it was in 1851 and 1922, he said at p757:

230. Kingsmill-Moore J. also refers to the reasoning of Sullivan C.J. in that case on the lines that the legislature could have enacted SS. 29 and 31 of the Petty Sessions Act and the effect of the two Constitutions was that it came over into our law as if so enacted. At p.747, Fitzgibbon J. makes a pertinent point that:-

231. The provisions were not challenged or found to be repugnant over the years. They have been frequently referred to and adopted by the Legislature and in a reinvigorated existence have the further sanction given by Article 37.

232. This conclusion is inevitable given that the power in question is one implicitly validated by Article 37.1 of the 1937 Constitution as will now be discussed. The 1919 Act has been referred to in at least 78 Acts of the Oireachtas and 4 Statutory Instruments in the period 1925-1992, which is adequate confirmation of consistency and compatibility with both Constitutions. In Lynam -v- Butler No. 2 [1933] I.R. 74, Kennedy C.J. made an attempt to define judicial power by way of description rather than by precise formula, and said at p.99:-

233. Having dealt with the judicial power in criminal cases, he went on to say:-

234. Kennedy C.J. in that case went on to state his opinion that the land commissioners were primarily an administrative body with a great variety of ministerial duties to perform and that while the nature of some of these duties require that they be performed judicially with fairness and impartiality and in accordance with the canons of natural justice, this requirement did not convert a ministerial act into a judicial act in the sense of an act which must be performed by a judge in a Court of justice. Rather than examining further the situation under Article 64 of the 1922 Constitution, the question of carryover and the reasons for the reticence in bringing constitutional challenges before the 1950s, I intend to focus on the cases shedding light on Articles 34.1 and Articles 37.1.

235. Assessing the amount of the market value of lands would appear to be a question of an adjudication on a conflict between the parties and to be an exercise of judicial power rather than simply an administrative matter. I will return to the point that the power to fix the price to be paid to the owner is said to be only of a limited nature.

236. How do these criteria relate to the functions of the property arbitrator under the 1919 Act?

237. As for the finality of the arbitrator's award, in Dublin Corporation -v- The Building and Allied Trade Union [1996] 1 I.R. 468, the Supreme Court held that the doctrine of res judicata applies with even greater force to an award under the Acquisition of Land (Assessment of Compensation) Act, 1919.

238. O'Flaherty J. said that the main question that must be confronted was: did the operation of the inquiry constitute an administration of justice? He then set out the characteristic features of the administration of justice identified by Kenny J. in McDonald -v- Bord na gCon and said:-

239. Counsel for the Defendants referred to Deighan -v- Hearne [1986] I.R. 603 H.C. and [1991] I.R. 499 S.C. in which the High Court and Supreme Court determined that there was no unconstitutional administration of justice by inspectors of taxes in assessing an amount of tax due by an individual as they were simply providing an expert assessment which in certain circumstances might have statutory consequences. A similar approach was taken by the High Court in State (Calcul International Limited) and Solatrex (International) Limited -v- Appeal Commissioners (unrep. High Court 18 December 1996, Barron J.). Barron J. held that the powers of the appeal commissioners were confined to deciding whether the assessment raised by the tax inspector should be reduced or increased.

240. He held that the commissioners are not exercising powers of a judicial nature; the test depended on the orders which they were entitled to make. He said:-

241. Barron J. went on to say:-

242. However, it may well be that the revenue cases may best be regarded as a special category as far as the question of administration of justice is concerned.

243. I conclude on the basis of the Madden and McDonald decisions that the property arbitrator, under the 1919 Act, is in fact exercising a judicial function.

244. The provisions of the 1919 Act have been referred to and incorporated into many Acts both before and after 1937. Many of these Acts provide for the acquisition of land and for the fixing of compensation under the provisions of the 1919 Act. Furthermore, the Property Values (Arbitration Appeals) Act, 1960 substituted the property arbitrator for the previous official arbitrator under the 1919 Act and effectively readopted the whole Act. Similarly, the Local Government (Planning & Development) Act, 1990 provided that section 2 of the 1919 Act (as amended by section 69 of the Local Government (Planning &

245. Development) Act, 1963) should, notwithstanding the repeal of section 69 of the principal Act by this Act, apply to every case other than a case under this Act where compensation is to be assessed by a planning authority or other local planning authority. The inclusion of references to the 1919 Act in many statutes since 1937 and the reference in the 1989 Act itself seems to me to involve the assumption that the Oireachtas has looked again at the provisions of the 1919 Act and, accordingly, the presumption of constitutionality should apply.

246. The Plaintiffs say that even if the 1919 Act system does not involve the administration of justice or was carried over in 1937 and involves only limited judicial powers and functions, it is nevertheless constitutionally defective because there is no adequate appeal or judicial review mechanism available to correct an error in an award. Counsel cited Doyle -v- Kildare County Council [1995] 2 I.R. 424 as authority for the narrow scope of the mechanism for judicial review of the decision of the property arbitrator. In Doyle, the plaintiff's evidence was that their loss amounted to £1,377,010. The county council figure for the loss was £125,000. The arbitrator made an award of £106,000. No reason was offered to explain how the award was compiled. Neither party had complained of irregularity during the arbitration or requested that a case be stated to the High Court. It was held by the Supreme Court that the trial Judge was correct in holding that the decision of the arbitrator was neither irrational nor perverse; accordingly, the trial Judge had no statutory jurisdiction to set aside the award of the property arbitrator under the Arbitration Act, 1954 in the absence of a finding that he had misconducted himself or the arbitration as envisaged by section 38(1) of the Act; also, that the trial judge did not have proper grounds for invoking

247. Counsel for the plaintiff stressed that Henchy J. in Tormey -v- Ireland [1985] I.R. 289 said that, where exclusive jurisdiction to hear a matter had been devolved on a tribunal under cover of Article 37, while the High Court would not hear and determine the matter or question, nevertheless "its full jurisdiction is there to be invoked - in proceedings such as habeas corpus, certiorari, prohibition, mandamus, quo warranto, injunction or a declaratory action - so as to ensure that the hearing and determination will be in accordance with law. Save to the extent required by the terms of the Constitution itself, no justiciable matter may be excluded from the range of the original jurisdiction of the High Court". Counsel makes the point that while the land commission system was subject to judicial review, nevertheless, the system under the 1919 Act, with its lack of a requirement to give reasons, made judicial review difficult in practice. The Plaintiffs contend that, in a case involving interference with constitutional rights, a fundamental principle of the administration of justice is that there should be a right of appeal or at least the right to a review of the decision of a single adjudicator. No Irish case has been cited to this effect and I do not think that the right to a fair trial protected by Article 6 of the European Convention on Human Rights goes so far as to guarantee a right of appeal in a civil action. I accept there is a right of appeal to the Courts from the decisions of many tribunals and it is clear that in many other comparable jurisdictions it has been thought desirable that there should be a judicial involvement in this sphere as in the lands tribunal in England. Compensation is assessed by the Courts in many jurisdictions. However, in this country, the Property Values (Arbitration

248. Appeals) Act, 1960 substituted the property arbitrator for the official arbitrator under the 1919 Act and the legislature effectively adopted the 1919 Act. In the recent case of Manning -v- Shackleton and Cork County Council [1997] 2 I.L.R.M. 26, a land owner challenged an arbitrator's refusal to give reasons for his award or a breakdown of the sum awarded. While the Supreme Court did make an order of mandamus directing the property arbitrator to specify the amounts awarded under specific heads, nevertheless it was made clear that the requirement that justice should appear to be done may not require that an arbitrator's award should incorporate anything in the nature of a reasoned judgment. The clear policy of the Acquisition of Land (Assessment of Compensation) Act, 1919 was to afford to the parties a machinery for determining the value of compulsorily acquired land which would avoid the need for litigation and would be final and binding. If arbitrators under the 1919 Act were required to give reasoned judgments, there would be a multiplicity of cases which, although couched in the language of judicial review, would be attempts to appeal awards. This would not be consistent with the policy underlying the arbitration procedure. Thus, an arbitrator under the 1919 Act may be required to specify the amount awarded in respect of any particular matter. Keane J., in giving the judgment of the Supreme Court with which O'Flaherty and Blayney JJ. concurred, said at p. 34:-

249. It seems to me that the Supreme Court in Manning did consider whether there was a lack of constitutional fairness in the procedures to be followed by the property arbitrator under the 1919 Act and that it was implicit in the judgment of the Supreme Court that the policy of the Act could preclude the giving of reasons thus limiting the scope for judicial review. However, the judgment specifically stated that the fact that the arbitrator does no more than determine the amount of the compensation and, if required, segregate it under different headings does not inhibit the supervisory jurisdiction conferred on the High Court nor the more general jurisdiction which may be invoked by means of judicial review procedure.

250. Counsel for the Defendant is also correct in stressing that the arbitrator is assessing a value and is not performing the function of measuring damages which requires the determination of rights necessary for the assessment of compensation in respect of personal injury awards.

251. Finally, the Plaintiffs make the point that their buildings and fine lands in the village are fairly described as heritage property. When comparable heritage property is being acquired under the National Cultural Institutions Act, 1997, applications for compensation can be made to the High Court with an appeal to the Supreme Court under section 59 of the 1997 Act. By contrast, section 4 and the schedule of the 1919 Act force the Plaintiffs to abide by the arbitration system under the 1919 Act. The Plaintiffs also point to the Minerals

252. Development Act, 1979 which grants a right of appeal to the High Court on the question of the amount of compensation. However, while experience abroad may indicate that there is much to be said for having an involvement of the Courts in the assessment of compensation where expropriation measures are used, nevertheless the fact that compensation in respect of loss of mineral rights, or property rights in heritage chattels, may be measured by the High Court in this jurisdiction does not necessarily render the 1919 Act invalid. The Oireachtas is entitled, subject to the validity of the measure against the touchstone of the Constitution, to determine the appropriate method of assessing the compensation to be provided in the event of a compulsory acquisition.

253. Accordingly, the Plaintiffs have not discharged the onus of persuasion that the 1919 Act is repugnant to the Constitution. While it is clear that in many comparable jurisdictions the view has been taken that there should be a judicial role or intervention in the assessment of compensation and this would seem sensible and desirable, nevertheless in this State there is authority for the proposition that the assessment of compensation is a limited function and that this role can be carried out by experts acting in a judicious manner. The Supreme Court in recent cases has sanctioned the procedure and has implicitly allowed the system whereby the property arbitrator does not give a reasoned judgment, although requiring him to specify the amounts awarded under specific heads.

254. Section 5 in full reads:-

255. The Foundation is a private body being a company limited by guarantee whose members and directors are private citizens. Against the background of the powers in the Act to acquire compulsorily the property of the Plaintiffs who own more than 3/5ths of the land on the island, it is surprising to find the powers in section 5 which permit the delegation of public functions to such a private body. The Act professes to provide in the interests of the common good for the establishment and maintenance of a park to be developed by the Commissioners for the use and benefit of the public. Counsel have said that they are not aware of any legislation where a private company has been the recipient of such privileges in respect of public administration. This Act

256. Section 5(2) expressly excludes from the ambit of delegations the functions of the Commissioners in respect of the making of bye-laws in section 3 and in regard to acquisition of land in section 4 and in the schedule. Accordingly, it would seem that all other functions of the Commissioners are capable of delegation and this would include the power of the Commissioners under section 8(5) to appoint in writing a person to be an authorised person for the purposes of section 8 which gives powers to members of the Garda Siochana and authorised persons to police the park. If this power under section 8(5) of the Commissioners was to be excluded from the provisions authorising delegation in section 5(2) then one would expect mention of this exclusion as there is of sections 3 and 4 and the schedule to the Act. While it seems highly unusual that park-ranger type persons might be appointed by the Foundation after delegation of authority from the Commissioners, nevertheless no Irish case has been cited on the point that this giving of policing powers to a private body with no obvious public accountability would be repugnant to the Constitution. Furthermore, section 5(5) makes provision for an order delegating functions by the Minister to the Foundation to be laid before each House of the Oireachtas as soon as may be after it is made. The Oireachtas may pass within 21 days a resolution annulling the order and thus retains some supervisory role in respect of this delegation of power. I accept the Plaintiffs'

257. The Plaintiffs contend that section 5(4) of the 1989 Act authorises the Minister to amend the Act and submits that the only restraining criterion on that amending power is what the Minister considers expedient or necessary. The Plaintiffs say that these wide powers of amending legislation are such that they are repugnant to the provisions of Article 15.2.1 of the Constitution:-

258. While no order has been made under section 5(4), nevertheless once an enactment has been passed into law, the Court is entitled to determine its validity having regard to the provisions of the Constitution (see O'Cleirigh -v- Minister for Agriculture, Food & Forestry [1996] 2 I.L.R.M. 12). The Court

259. Chief Justice O'Higgins said:-

260. By analogy, while section 5(4) could be interpreted as appearing to contain wide powers of amendment, nevertheless, on a closer reading of section 5(2), preference can be given to a narrower constitutionally valid construction. By reading section 5(4) in the context of section 5(2), and bearing in mind the presumption that statutes will not be administered or applied in a way that will infringe constitutional rights, the Minister can be said to be confined to modifying provisions insofar only as to carry out the delegation allowed in section 5(2) so as to put into effect the policy and principles of the Act. There is also the safeguard that under section 5(5) an order under Section 5 has to be laid before each House of the Oireachtas.

261. I refused the application to amend the statement of claim made on 24th June, 1997 as coming too late in the case for an amendment of pleadings. The Plaintiffs were seeking this so as to be able to mount ultra vires challenges on the grounds that the Defendants had failed before the serving of the compulsory purchase notices to warn the Plaintiffs of the intended legislation and acquisition or to respond to the Plaintiffs' offer of a co-operative plan rendering compulsory purchase unnecessary. However, I did make the point that the aspects preliminary to the legislation had been well addressed by the parties in evidence, submissions and case law and that it was mainly from the testimony of witnesses called by the Defendants that the importance of this aspect had emerged. I made it clear in

262. Counsel for the Defendants submitted that if any provision of the Act is found to be unconstitutional, then it does not follow that the entire Act is repugnant and he invited separation and severance. My conclusion is that section 4(2)(a) read in conjunction with section 4(4) is invalid. This subsection contains the exemption in favour of land owned by the former inhabitants and their relatives and descendants. The discrimination inherent in this provision is improper bearing in mind the provisions with regard to equality and the protection of private property and the impropriety of 'ad hominem' legislation.

263. Counsel for the plaintiffs say that if the plaintiffs win on any of the arguments concerning equality, property, the 1919 Act, EEC discrimination or delegations to the Foundation, severance is inappropriate especially as the entire Act is equivalent to private legislation. The defendants respond that if the court were to find a particular section or subsection unconstitutional, then only that infirm section should be struck down unless "what remains is an entirely unworkable edifice". Counsel gives examples of this situation if certain parts of the Act were found unconstitutional by suggesting severability of the provision about the involvement of the Foundation or that relating to the delegation or adaptation of functions.

264. Article 15.4 limits the invalidity of any provision to the extent of its repugnancy to the Consitution. This however can only be done when the remaining legislation upholds the presumed legislative intent. The authoritative case on principles of severability is Maher -v-Attorney General 1973 I.R. 140. In that case Fitzgerald C.J. said that "the question is one of interpretation of the legislative intent". He went on to say:-

265. Professor Casey in his book "Constitutional Law in Ireland" (2nd Ed.) interprets Maher and sets out clearly the circumstances where severance may take place at p.293:-

266. In this regard Casey also notes that the United States Supreme Court applies similar tests and refers to Alaska Airlines, Inc. -v- Brock [1987] 480 US 678. The reasoning behind these tests stems from the doctrine of the separation of powers; the Court must ensure that any decision which declares a portion of a statute unconstitutional does not result in the Court encroaching on the legislative domain by allowing the remaining enactment stand with a different import and effect to that originally intended by the Legislature. This area of the law was recently restated in Mallon -v- The Minister for Agriculture, Food and Forestry & Ors in which Chief Justice Hamilton quoted Finlay C.J. in Desmond -v- Glackin (No.2). Essentially the criteria remain the same as set out in Maher.

267. With regard to ascertaining the intention of the Legislature, the most useful method is to be found by looking at the legislation from the perspective of the legislator who will have a number of different levels at which reasons can be given for enacting a provision. There may be a general aim behind the enactment which bears a relation to a broad political

268. The 1989 Act would probably not have been passed without the exemption. While the objectives in the main of the Act are entirely laudable in respect of preserving and demonstrating the historic heritage, culture, traditions and values of the Great Blasket and its inhabitants, nevertheless the method chosen to achieve this has failed to take account of the rights of the Plaintiffs. Section 4(2) is very much at the core of the Act and so section 4 permeates and is not independent of and severable from the rest of the Act. The remainder after deleting Section 4 could not be held to stand independently and be legally operable as representing the will of the legislature. The provisions held to be invalid are an integral part of the Act and the remnant would not represent the legislative intent and, accordingly, the remaining part should not be severed and given constitutional validity. In short, if the Court was to sever section 4 as being repugnant and seek to give validity to the remnant, this would produce an effect which would be at variance with the legislative policy of the Oireachtas. The Court should not invade the domain exclusive to the legislature.

269. I will hear Counsel as to the terms of the declaration to be made.

270. As for the question of damages claimed by the Plaintiffs, I made it clear that this aspect should be deferred. It may be that this matter may not arise as it was clear from the evidence given by the Plaintiffs that their cooperation would be forthcoming in achieving many of the objectives of the Act. Indeed, it may be that their suggestion of using a valuer from abroad might be considered in the context of the unique cultural heritage of the Blaskets. Since it is unique and of international importance perhaps there is less peril of setting a precedent. However I am conscious that I trespass on the preserve of the parties in making such a suggestion as a way of avoiding further expensive litigation and anxiety.

271. I hope that the parties will not mind if I quote from the judgment of Chief Justice Ó Dálaigh in the Tormey case at page 17 of his unreported judgment about King Cormac MacAirt's remark made to soothe Odrán who was angry at being dispossessed of his land.

272. At the outset of this case I was alerted to the many grounds of challenge to the 1989 Act, to likely issues in respect of admissibility and to the large number of witnesses who were envisaged. I expressed concern about the length and expense of such a case. Counsel for the Plaintiffs made it clear from the start that his clients were supportive of the preservation and demonstration of the culture of the Great Blasket and the former islanders. With the ingenuity of Counsel, one might have hoped that recourse to coercive expropriation and litigation might have been avoided. Perhaps the peculiarity of the Great Blasket is such that no damaging precedent would be set if heed is given, even at this late stage, to the wise words of Chief Justice Ó Dálaigh, who was himself renowned as a linguist and was learned in the culture of the Blasket Islands.

273. Dudley-v- An Taoiseach [1994] I.L.R.M. 321

274. Madigan -v- Attorney General [1986] I.L.R.M. 136

275. Norris -v- Attorney General [1984 IR 36

276. Cahill -v- Sutton [1980 I.R. 269

277. Iarnród Eireann/Irish Rail -v- Ireland [1995] 2 I.L.R.M. 161

278. Crotty -v- An Taoiseach [1987] IR 713

279. East Donegal Co-operative Livestock

280. Mart Ltd -v- Attorney General [1970] I.R. 317

281. O'Donovan -v- Attorney General [1961] I.R. 114

282. Ryan -v Attorney General [1965] IR 294

283. The State (Woods) -v- Attorney General [1969] I.R. 385

284. Bloomer -v- Incorporated Law Society of Ireland [1995] 3 I.R. 14

285. MacMathúna -v- Ireland [1995] 1 I.R. 484

286. Dandridge Chairman Maryland and Board of

287. Public Welfare et al. -v- Williams et al. 397 U.S. 471

288. O'Callaghan -v- Commissioner of Public Works

289. Hand -v- Dublin Corporation [1991] 1 IR 409

290. In Re Article 26 & The Matrimonial House

291. Pigs Marketing Board -v- Donnolly

292. Fisher -v- Irish Land Commission [1948] I.R. 3

293. Buckley & Others (Sinn Féin)-v-Attorney

294. Foley -v- Irish Land Commission [1952] I.R. 118

295. Attorney General -v- Southerin Industrial

296. Central Dublin Development Association -v-

297. Attorney General [1975] 109 I.L.T.R. 69

298. In Re. Article 26 & The Employment Unrep. S.C. 1997.

299. Blake -v- Attorney General [1982] IR 117

300. O'Brien -v- Bord na Móna [1983] IR 255

301. Clancy -v- Ireland [1988] I.R. 326

302. Tormey -v- Commissioners of Public Works Unrep., S.C., 21 December 1972

303. Hauer -v- Rhineland-Pfalz [1979] 3E.C.R.3727

304. Sporrong & Lonnroth -v- Sweden [1985] 5 E.H.R.R.35

305. Pine Valley Developments Limited

306. Quinn's Supermarket -v- Attorney General [1972] I.R.1

307. Railway Express Agency Inc. -v- New York 336 U.S. 106 1949

308. Brennan -v- Attorney General [1983] I.L.R.M. 449

309. Murphy -v- Attorney General [1982] I.R. 241

310. Fletcher -v- Peck 10 U.S. (6 Cranch) 87

311. O'Cleirigh -v- Minister for

312. Agriculture,Food & Forestry [1996] 2 I.L.R.M. 12

313. Cityview Press Limited -v- An Chomhairle Oiliuna [1980] I.R. 381

314. Harvey -v- Minister for Social Welfare [1990] 2 I.R. 232

315. Phil Collins -v- Imtrat Handelsgesellschaft mbH [1993] E.C.R. 1 5145

316. Northern Pipeline Construction Company -v-

317. Marathon Pipeline Company 458 U.S. 50 1981

318. Cowan -v- Attorney General [1961] I.R. 411

319. Geoghegan -v- Institute of Chartered Accountants

320. The State (Kennedy) -v- Little [1931] I.R. 39

321. Lynham -v- Butler (No. 2) [1933] I.R. 74

322. Madden -v- Ireland Unrep. H.C. 22 May 1980

323. In Re Solicitors Act, 1954 [1960] I.R. 239

324. The State (Shanahan) -v- Attorney General [1964] I.R. 239

325. Goodman International -v- Hamilton [1992] 2 I.R.542

326. Dublin Corporation -v- The Building and

327. Allied Trade Union [1996] 1 I.R. 468

328. Keady -v- Commissioner of An Garda Síochána [1992] 2 I.R. 197

329. Deighan -v- Hearne [1986] I.R. 603

330. State (Calcul International Limited) and Solatrex Unrep. H.C. 18th

331. Doyle -v- Kildare County Council [1995] 2 I.R. 424

332. Tormey -v- Ireland [1985] I.R. 289

333. Manning -v- Shackleton and Cork County Council [1997] 2 I.L.R.M. 26

334. McDonald -v- Bord na gCon [1965] I.R. 217

335. Maher -v- Attorney General [1973] I.R. 140

336. Alaska Airlines Inc. -v- Broch [1987] 480 U.S. 678

337. Mallon -v- The Minister for Agriculture Unrep., S.C. 26th April

338. Food and Forestry & Ors. 1996

339. Desmond -v- Glackin (No.2) [1993] 3 I.R. 67

340. State (Hully) -v- Hynes [1966] 100 I.L.T.R. 145

341. Dowling -v- Kingston (No. 1) [1937] I.R. 483

342. State (de Vito) -v- Arklow UDC and Byrne [1986] I.L.R.M. 123

343. Meagher -v- O'Leary and Others Unreported High Court

344. Meagher -v- Minister for Agriculture and 1994 I.L.R.M. 1

345. Food and Others

346. State (Quinn) -v- Ryan 1965 I.R. 70