Buckley v. AG

Thirdfox

I have an essay on the significance of the Supreme Court's decision in the Sinn Fein funds case as to the subsequent development of the separation of powers doctrine.

Rest assured that I won't be plagurising anyone or quoting verbatim. Rather I am looking for opinions and possible avenues of research interest i.e. case law, articles etc.

My professor believes that the case is very important but I find that it has been rarely cited and often distinguished.

Your opinions?

P.s. I'm not asking anyone to write my essay for me (I've already done most of my research... but other people's opinions would be of interest to me too!)

Time Magazine

Just in case you're really new to this kind of thing, you can see the full report on Justis, a link to which is available (via proxy).

The official name of the case is
BUCKLEY AND OTHERS (SINN FÉIN) v. ATTORNEY GENERAL AND ANOTHER.

Judgement, Gavan Duffy P. wrote:

I assume the Sinn Féin Funds Act, 1947, under which this application is made, to have been passed by the Legislature for excellent reasons, and, as a matter of course, I give to the Oireachtas all the respect due to the legislative assembly of the nation; but I cannot lose sight of the constitutional separation of powers. This Court cannot, in deference to an Act of the Oireachtas, abdicate its proper jurisdiction to administer justice in a cause whereof it is duly seized. This Court is established to administer justice and therefore it cannot dismiss the pending action without hearing the plaintiffs; it can no more dispose of the action in that arbitrary manner at the instance of the Attorney General than it could give judgment for the plaintiffs without hearing the Attorney General against their claim. Moreover, this action is not stayed unless and until it is stayed by a judicial order of the High Court of Justice; the payment out of the funds in Court requires a judicial order of this Court, and under the Constitution no other organ of State is competent to determine how the High Court of Justice shall dispose of the issues raised by the pleadings in this action.

Pretty important in terms of seperation of powers. I'm sure xeducat will give you a bit of a free dig-out as well.

Thirdfox

But see In Re Camillo where Buckley was distinguished, also State (Divito) v. Arklow UDC where it didn't apply.

Talking to former chief justice Keane he said in terms of supporting case law that the judgement wasn't too important... rather the fact that it awakened Oireachtas to the fact that the separation of powers was not just a fancy legal theory but an enforcable one... (as mentioned in his article "Across the Cherokee Frontier of Irish Constitutional Jurisprudence?")

and also the ECHR's judgement in the Pine Valley saga where they deemed that to discriminate against one company was in breach of the convention (even though Oireachtas was trying to prevent itself from breaching the separation of powers doctrine)

My point was that it doesn't seem to appear that often in cases where the Buckley judgement was used as a leading authority. And in David Gwyenn Morgan's book on the separation of powers in Ireland it only mentioned Buckley in passing (twice I think) in a 200 page book.

Pretty important... but why? That is the question

walrusgumble

i doing constitution law and the seperation of powers is baffling. anyway one of the significance it that O'Byrne J made it clear that the organs of state exercise their powers in line with sepation of powers and by respecting each others powers that there that bills are presumed to be constitutional.

check out td v minister for education 2001 supreme court where they questioned whether or not the court could make a madotory order against the executive. see discussions in curtin v dail 2006, o'reilly v limerick city corporation (unreported) circuit court 97, sinnott v minister for education 92, moran's seperation of power and the constitution is really good(sorry ya prob know of it)

i guess if you conentrate on a number of cases you discuss issues such how far a court can court interfere, if possible, with legislature's power to legislate to ensure that they are kept in check, also nature of judicial independence and why we have it. talk about how no organ has parmaount role in the functioning of the state and discuss why this is good?

Thirdfox

Lol, I'm amazed that you dug this thread up! I'm about to get the results of the essay soon but thanks for your info anyway!

The question I think focused on Buckley's contribution to the development of the separation of powers rather than the theory of separation of powers itself. The cases that I read in the end for my essay were:

• Buckley v. Attorney General [1950] IR 67
• Boland v. An Taoiseach [1974] I.R. 338
• Costello v. DPP [1984] I.R. 436
• Cowan v. Attorney General [1961] I.R. 411
• Crotty v. An Taoiseach [1987] IR 713
• Deaton v. Attorney General and the Revenue Commissioners [1963] I.R. 170
• Gorman v. Minister for the Environment [2001] 2 I.R. 414
• Hamilton v. Hamilton [1982] I.R. 466
• Horgan v. An Taoiseach [2003] 2 IR 468
• Howard v. Commissioners of Public Works [1994] 1 I.R. 101
• In Re Camillo [1988] I.R. 104
• Kavanagh v. The Government of Ireland [1996] 1 I.R. 321
• Maher v. Attorney General [ 1973] IR 140
• McGimpsey v. Ireland [1988] I.R. 567
• National and Provincial Building Society v. UK [1997] 25 EHRR 127
• Pine Valley Developments v. Minister for the Environment [1987] I.R. 23
• Pine Valley Developments Ltd and Others v Ireland [1991] 14 EHRR 269
• Quinlivan v. Governor of Portlaoise Prison [1998] 2 I.R. 113
• Riordan v. Ireland [2000] 4 I.R. 537
• Sinnott v. Minister for Education [2001] 2 IR 545
• State (C.) v. Minister for Justice [1967] I.R. 106
• State (McEldowney) v. Kelleher [1983] I.R. 289
• State (O.) v. O'Brien [1973] I.R. 50
• State (Shanahan) v. Attorney General [1964] I.R. 239
• State (Sheerin) v. Kennedy [1966] I.R. 379
• T.D. v. Minster for Education [2001] 4 IR 259
• The State (Divito) v. Arklow Urban District Council [1986] ILRM 123

So I looked at how Buckley extended the theory and whether through these subsequent cases were the extensions approved of and developed upon or discarded.

Final verdit: Buckley is very important!