2016 Global Review of Constitutional Law

structure it contemplates”. The Court concluded
that the Dáil here had not abdicated
its function because the legislation, while not
imposing a debt ceiling, contained other constraints
on the Minister’s powers. However,
it cautioned that the Act was defensible as
“a permissible constitutional response to an
exceptional situation”. This meant that:
It cannot therefore be considered to be a
template for broader Ministerial power
on other occasions. Indeed it is unlikely
that the Oireachtas would concede such
wide ranging power in other less pressing
circumstances, but if it did, and, for
example, a minister or other body was
permitted to provide unlimited financial
support, and without limitation in time
or object, to any commercial entity, then
it clearly would not follow from this
case that such was constitutionally permissible.
This suggests that, while the Court did not
endorse the general principle advanced by
the plaintiff, it does regard Article 11’s reference
to “by law” as importing a broader
“legality” requirement that any formal
measures relating to financial matters must
provide for an adequate degree of legislative
involvement.
Support for this interpretation of Collins can
arguably be found in the other major decision
of 2016. Barlow v. Minister for Agriculture
concerned a dispute over access by
fishermen based in Northern Ireland to mussel
seed beds in Irish waters. This had been
permitted pursuant to a voisinage agreement
based on an exchange of letters between the
relevant government departments in Belfast
and Dublin in 1965. The legal issue here
was whether mussel seed were a “natural resource”
within the meaning of Article 10 of
the Constitution. This Article requires natural
resources to be managed “by law”. The
Court concluded that Article 10 did apply,
and that this arrangement did not comply
with it. It is noticeable, however, that the
Court did not confine itself to finding that
this exchange of letters did not constitute
“law” in a formal sense. Instead, it outlined a
more substantive principle of legality which
it specifically connected to democratic representation
and accountability:
The requirement of Article 10.3 of the
Constitution for regulation “by law” is
not merely a formal procedural provision,
important though that would be.
In constitutional terms, it means that
the Constitution requires that the regulation
of natural resources stated to be
the property of the State must be the
subject of a decision by the representatives
of the People who are accountable
to them. Legislation is normally
required to take place in public (Article
15.8), which carries with it the possibility
of public knowledge and debate. In
effect, therefore, the Constitution mandates
that if State property, in particular
natural resources, is to be sold, leased,
managed or regulated, then that decision
should be made in public by representatives
who are accountable to the People
who can accordingly make their views
known.
Aside from providing clarity on some of the
more rarely-litigated Articles of the Constitution,
both Collins and Barlow provide
support for the possibility that the Court may
be developing a substantive conception of
legality which extends beyond the right of
an individual to know the law 19 to encompass
broader principles of democratic accountability.
If this is the case, it may have
long-term implications for the separation of
powers in Ireland and, in particular, for the
legislature’s traditionally submissive relationship
to government. That is particularly
so given that references to “by law” or “in
accordance with law” appear frequently in
the constitutional text.
CONCLUSION
On abortion, on judicial appointments, and
on the scope of a possible legality principle,
therefore, 2016 was a year of change – but
also of continued uncertainty about the form
that change will ultimately take.
19
King v. AG [1981] I.R. 223.
102 | I•CONnect-Clough Center