Mussels are now a familiar item on menus, from different cuisines around the world. In a less appetising form they have engaged the attention of these courts on a number of occasions in recent years: Lett & Company Limited v Wexford Borough Council  2 I.R. 198, Lough Swilly Shellfish Growers Co-operative Ltd v Bradley  1 I.R. 227, Cromane Foods Ltd v Minister for Agriculture, Fisheries & Food  I.E.S.C. 6, and Dunmanus Bay Mussels Ltd. v Aquaculture Licences Appeals Board  1 I.R. 403. This proliferation of litigation is a consequence no doubt of developments in commercial aquaculture and the complexities and restrictions of the fishing regime of the European Union. But, as the case law surveyed so extensively in this case demonstrates, disputes about the entitlement to take fish, including shellfish from the sea or tidal rivers (and elsewhere) for sustenance, or as a commercial enterprise and way of life, have been the subject of contention in Ireland both before and after independence. Indeed the consideration of the question of the legality of fishing in particular waters may involve questions as to the terms of Magna Carta, its reception in Ireland, the position in any locality as of the 12th and 13th centuries, and in some cases the terms of Brehon law and the organisation of pre-plantation Gaelic society.
At first sight, the issues for resolution in this case are of much more recent origin. For the last 50 years and, it seems likely, since the foundation of the State, fishermen resident in Northern Ireland have fished waters which, from time to time, have been designated as the territorial waters of the State. This fishing has been carried out with the knowledge and approval of the authorities here and, it appears in circumstances where reciprocal facilities were afforded to Irish fishermen in the waters adjoining the coastal area of Northern Ireland. This case raises the question of the legality of the practice of what may be described in general terms at this stage, as Northern Ireland fishermen, fishing in Irish territorial waters. This question arises in the context of mussel harvesting, which for a number of reasons has become much more commercially significant in recent times. For reasons which it will be necessary to set out at some length, I have concluded that the current practice of fishing or harvesting of mussel seed by Northern Ireland registered boats in the territorial waters of this State is not lawful, as it constitutes the exploitation of a natural resource which must by Article 10 of the Constitution be provided for by a law enacted by the Oireachtas. I conclude that there is no such law at present. It follows however from this conclusion however that there is no insuperable constitutional objection to making provision by law for such fishing. This is the narrow conclusion of the large issue in this case.
The plaintiffs are individuals and companies, involved in what is called bottom mussel fishing, which is to be distinguished from rope mussel fishing traditionally practised in the west of Ireland. In the 1990s bottom mussel fishing was located mainly in the Wexford area and in Cromane, County Kerry, and carried out traditionally by a small number of families. However, a number of factors appear to have led to the increased commercial exploitation of mussel fishing. It appears from the evidence and submissions, that among the critical factors influencing recent developments has been the fact that mussel cultivation has been recognised as providing an important opportunity for commercial aquaculture, ranking, in recent years, second only to salmon. At the same time, mussel harvesting is not, as yet controlled by the complex EU fishing regime. One further consequence of this is that this dispute is to be determined by the provisions of domestic law, some of it of considerable antiquity.
The familiar common mussel was first defined (Mytilus Edulis) by the Swedish botanist and zoologist Linnaeus in 1758 but was known long before that. Shell middens are indeed an important evidence of early human settlement in a number of locations in Ireland. The technique of bottom mussel fishing has changed little over time. It involves the collection of mussel seed at sea, and its transport to sheltered areas which have proved to be productive mussel beds, where the mussels can grow and where they can in due course be harvested. The nature of the mussel, and the features which allow it first to develop as a seed, be found at sea, and later to attach itself to the mussel beds and grow to maturity, was described in the evidence of Dr Julie Maguire, a witness on behalf of the plaintiff which I will attempt to synopsise. Mussels are bivalves, and unusually are male and female. They spawn at sea in an unusual way. They are not attracted to each other for purposes of fertilization, and instead must hit off each other at random. Fertilisation produces larvae which are carried in the sea for some weeks. However particularly in the Irish Sea, they do not travel far, indeed rarely more than 100 metres from their point of origin, or indeed from each other. At some point they lose energy and settle. Once that process begins, they start to produce a shell and then byssal threads which can attach to seaweed, mother mussels or a mussel bed.
Mussel cultivation is a simple, and as far as it goes, reasonably natural process, since the only human intervention is the harvesting of the mussel seed, and its transport to the mussel beds. Perhaps as a result it has rarely been subject to detailed legal consideration. The practice is however somewhat precarious. It is dependent upon an adequate source of mussel seed, the vagaries of the weather, and the quality of the water. Since at least the turn of the 21st century, the plaintiffs have become increasingly concerned at the depletion of mussel stocks. In particular, they blame practices of vessels registered in Northern Ireland which they consider have adopted a particularly aggressive and invasive method of mussel fishing. The problem is exacerbated by the fact that the traditional Northern Ireland mussel fisheries have been closed for some time because of infestation by a predator limpet. Not only does this close a potential fishery to the plaintiffs, but it tends to force the Northern Ireland boats to fish in the territorial waters of the State. The plaintiffs also suggest that the descriptions, “Northern fishermen” and “Northern Ireland boats”, are somewhat misleading: the plaintiffs assert that the vessels may be registered in Northern Ireland, and may be owned by companies which are incorporated there, but where the ultimate shareholding is owned by substantial foreign interests. In that sense, it is I think suggested that the permitted fishing by Northern Ireland registered vessels is not the maintenance of a historical practice predating partition or serving any modern interest of cross-border communication and reconciliation, but rather is being used as a flag of convenience for access by large foreign businesses to mussel fisheries from which they could, and should, otherwise be lawfully excluded.
I should emphasise that the Northern Ireland fishing interests of whom the plaintiffs complain, have not been party to these proceedings, nor has anyone given evidence on their behalf. Accordingly, I recite these matters merely as background to the complaints made by plaintiffs rather than as findings made by the Court. The justice, merit or accuracy of the complaints made by the plaintiffs is not a matter which is to be determined in these proceedings. The motivation of the plaintiffs in bringing these proceedings is a matter for them, and not the Court. The simple fact is that the undoubted decline in the mussel fisheries has led to a focus upon the Northern Ireland registered vessels, and to the plaintiffs raising the question of the legality of their continued fishing. That is the only matter to be determined by this Court. Indeed, a successful determination may not lead to any improvement in the mussel fishing business. It may transpire that the depletion of mussel stocks is not caused by the fishing practices of the Northern Ireland registered vessels. Similarly foreign interests might acquire Irish companies or Irish registered vessels, and conduct the same type of fishing. Even if the plaintiffs are successful in establishing that the current fishing by Northern Ireland vessels is not authorised by law, the State parties may elect to address that provision by an appropriate legal regime. Accordingly, while the plaintiffs’ concerns about the impact of fishing practices on the mussel stocks may have prompted them to raise the issue of the lawfulness of the fishing in Irish waters by Northern Ireland registered boats, there may be no causal connection between the two. Success in these proceedings may therefore bring no practical benefit to the plaintiffs. However, the narrow question for this Court, which has proved surprisingly difficult, is not whether the fishing for mussels in Irish territorial waters by boats registered in Northern Ireland is beneficial or harmful, but rather whether it is lawful?
That is however to state the question in its broadest form, and it is necessary to identify a number of refinements, even at this early point. What are understood to be ‘Irish territorial waters’ have changed over times, in a manner which is relevant to these proceedings. Furthermore, the question of the extent of territorial waters is also a matter of international agreement, and therefore the background to this issue has a component of international law.
The starting point in domestic legislation is surprisingly recent: the Maritime Jurisdiction Act 1959. An admirable overview of the evolution of this area of Irish law is to be found in O’Higgins ‘The Irish Maritime Jurisdiction Act, 1959’ (1960) 9 The International and Comparative Law Quarterly 325. The Maritime Jurisdiction Act 1959, perhaps anticipating developments at an international level, made separate provision for territorial waters and the exclusive fishing limit of the State, although initially, it provided the same limit for each. Thus section 3 of the 1959 Act provided that the limit of the territorial seas was three nautical miles from the coastline, allowing for certain internationally accepted conventions for measurement in respect of inlets and headlands. Section 6 of the Act provided that the exclusive fishing limit was to be the same. However, in 1964, presumably in response to the conclusion of the London Fisheries Convention of that year, the Act was amended, and section 6 was amended to provide for an exclusive fishery limit of 12 nautical miles. The Maritime Jurisdiction (Exclusive Fishery Limits) Order 1976 then extended the fishing limit to 200 nautical miles from the coast. The 200 nautical mile limit was also stated to be the exclusive economic zone of the State. Subsequently, section 2 of Marine Jurisdiction (Amendment) Act 1988 extended the outer limit of the territorial seas to 12 nautical miles.
The Sea-Fisheries and Maritime Jurisdiction Act 2006 consolidated and expanded upon much of the previous legislation. However for present purposes, the limit of the territorial seas remained at the 12 nautical mile limit whilst the exclusive fisheries limit was maintained at the 200 nautical mile limit. The 200 nautical mile exclusive fisheries limit is a matter of domestic law, reflecting in turn international conventions. The extent to which the 200 nautical mile limit can be said to be an exclusive fishing limit in fact is itself of course significantly qualified by the impact of European law which regulates very closely nearly all fishing in Irish waters and is accordingly now of probably greater daily practical significance for the fishing industry than the regime established in 1959. However, it is important for the purposes of this case, which does not involve European Union law to any substantial extent, to recognise and understand the underlying domestic and international law. Of particular relevance to this case are the terms of sections 8-10 of the 2006 Act, which provide as follows:
The London Convention was agreed on the 9th of March 1964, ratified by the State on the 20th of September 1965, and entered in to force on the 15th of March 1966. The process of negotiation and agreement of the Convention appears to form not only the background to the statutory amendment effected in 1964, but also prompted some of the key events which have been the subject matter of these proceedings. That Convention was made between the Governments of Austria, Belgium, Denmark, the French Republic, the Federal Republic of Germany, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden and the United Kingdom of Great Britain and Northern Ireland. It provided for reciprocal recognition of common standards. Thus Article 2 recognised that the coastal state had an exclusive right to fish and exclusive jurisdiction in matters of fisheries within a belt of 6 nautical miles measured from the base line of its territorial seas. Article 3 provided that within the belt from 6 to 12 nautical miles from the baseline of the territorial sea, the right to fish would be exercised only by the coastal state and by such other contracting states as had habitually fished in that belt between the 1st of January 1953 and the 31st December 1962. Article 9 of the Convention, however also recognised the possibility of according fishing rights within the 0 to 6 nautical miles belt. Article 9.2 in particular provided:
If a Contracting Party establishes the regime described in Articles 2 to 6, it may, notwithstanding the provisions of Article 2, continue to accord the right to fish in the whole or part of the belt provided for in Article 2 to other Contracting Parties of which the fishermen have habitually fished in the area by reason of voisinage arrangements.
A voisinage arrangement is, as the name implies, an arrangement between neighbouring states under which fishermen (and it was a sign of the times in 1964 that it appears only one gender was contemplated) had fished in each other’s waters. This reflects no doubt, the fact that fishing is an occupation with long traditions predating land boundaries. There are no border posts at sea, and fish do not carry passports. A voisinage arrangement is little more than a sensible recognition at official level of practice and tradition whereby fishing boats did not necessarily remain within the national waters but fished neighbouring waters. Much of the attention in this case has been focussed upon correspondence exchanged in 1964 and 1965 between civil servants in Dublin and Belfast. In essence, the State defendants contend that that exchange of correspondence evidences a voisinage arrangement, which was contemplated by international law in the shape of Article 9.2 and was permitted by domestic law under the 2006 Act, so that fishing by Northern Ireland vessels in accordance with that arrangement was and is lawful.
The Exchange of Letters
It is necessary to set out the 1965 letters in full. The particular correspondence was it appears initiated by a letter of the 13th of September 1965 by a D E O’Sullivan, and was addressed to JV Bateman in the Ministry for Agriculture in Belfast:
With reference to our recent telephone conversation relating to the rights of your vessels to fish in our exclusive fishery limits, I wish to confirm that we propose to continue the present arrangement whereby your boats owned and operated by fishermen permanently resident in the Six Counties will be permitted to fish within our new limits.
Incidentally the position as regards our own boats is that in accordance with the Licensing of Sea Fishing Vessels Regulations 1960 (S.I. No. 4 of 1960) no vessel exceeding 75 feet in length may be used for sea fishing except under and in accordance with a licence issued under Section 9 of the Sea Fisheries Acts, 1952, as amended by the Sea Fisheries (Amendment) Act 1959. The present practice is to require vessels exceeding 90 feet in length or 400 H.P. to refrain from fishing within our exclusive fishery limits and this will apply to the inner six mile zone of the extended limits.
The position will be, therefore, that your vessels up to 75 feet in length overall may fish within our exclusive fishery limits subject only to the usual regulations which would affect our own boats also.
If there were any question of vessels exceeding that length fishing within the inner six mile zone of our limits, it would be necessary for them to hold a permit to do so from the Minister for Agriculture and Fisheries under the Maritime Jurisdiction Act 1959 (Section 8) as amended by the Fisheries (Amendment) Act, 1962 (Section 34).
This was replied to some three months later:
th December 1965
Voisinage Arrangements under Article 9(2) of the Fisheries Convention
Thank you very much for your letter to Bateman of the 13th of September. I am sorry it has taken us so long to reply.
I acknowledge your undertaking to the effect that Northern Ireland owned and operated fishing vessels will continue to be allowed to fish within your new limits and we assume these limits include your territorial waters.
We for our part confirm that we consider ourselves bound by the terms of paragraph 6 of the note of 25th of August 1964 from the Commonwealth Relations Office to your Government headed “London Fisheries Convention 1964 Extension of British Fishery Limits”.
The letter enclosed the following extract from the note of the 25th of August 1964 from the Commonwealth Relations Office.
In accordance with Article 9(2) of the Convention Her Majesty’s Government propose to leave unchanged the arrangement under which vessels of the Republic of Ireland are permitted to fish for all descriptions of fish within the exclusive fisheries limits of the British Islands adjoining Northern Ireland except in so far as the said exclusive fishery limits lie within six miles (or during the transitional period, three miles) of the baselines along the coast of Scotland. This arrangement will apply as long as the authorities of the Republic of Ireland continue to accord to Northern Ireland vessels the same treatments they accord to vessels of the Republic of Ireland in waters around the coast of the Republic.
These letters, and the extract from the memorandum of the 25th of August 1964, were the subject of intense scrutiny and debate in the course of these proceedings. It is useful I think to try and place them in their historical context. They were very much a product of their time; a time when it was assumed fish were caught on vessels crewed by men, on their own account, rather than as employees of limited companies, and when civil servants addressed each other only by their surname, and when the concepts of aquaculture, and large scale commercial exploitation of mussels, were far in the future. The correspondence came only shortly after the famous visit by Taoiseach Seán Lemass to Prime Minister Terence O’Neill in January 1965, which in the words of one commentator ended ‘a sterile cold war’ between the two Irish States (See Daly, Sixties Ireland (Cambridge: CUP, 2016), p.323 quoting Garvin, Judging Lemass: the Measure of the Man (Dublin: Royal Irish Academy, 2009).
While cooperation on fishing was an obviously desirable objective, the civil servants nevertheless had to navigate some dangerous waters. It is noteworthy how the correspondence from Dublin refers only to the “six counties” the Belfast letter for its part while referring to “Northern Ireland”, avoids using any name for the State represented by Mr O’Sullivan, relying instead of much use of the words “our” and “your”. Furthermore, the Belfast correspondence avoids recognising the precise territorial waters of the State: “We assume that these limits include your territorial waters”. (Emphasis added). It is probably true, that there was greater fear at this stage in Belfast than in Dublin that cooperation would provoke political opposition. However, the civil servants in Dublin had also to tread very carefully. While permitting ‘Northern’ fishermen to fish in Irish waters could be presented as generous, inclusive and consistent with an official one nation ideology, the reciprocal permission being afforded to Irish fishermen in Northern Ireland waters was much more problematic. Quite apart from the provisions of Article 2 of the 1937 Constitution, and the consistent refusal by the Dublin administration to recognise Northern Ireland (or indeed until 1965 to refer to it by name) the official position of the Irish Government at that time, and indeed as late as it appears as 1982 (see: Casey Constitutional Law in Ireland, 3rd Ed., (Dublin, 2000), pp. 40-41) was that the waters adjoining Northern Ireland were Irish territorial waters on the basis, that the provisions which allowed Northern Ireland to remove itself from the Free State established in 1922, only referred to the six north eastern counties, and not to any adjoining waters.
The sensitivities on both sides may be one of the reasons why the arrangement reflected in this exchange of correspondence was not widely known. It may be that in addition to a common interest in gaining access to fishing grounds, both administrations had a shared interest in avoiding any prolonged public focus on the fact of cooperation and its broader implications. Indeed it is suggested that the plaintiffs only became aware of the correspondence in the course of these proceedings. While it is not perhaps correct to say that the correspondence or its contents were either secret or concealed, they were certainly not widely publicised. This may also explain why, when in 1959, on one of the few occasions when public reference was made to these matters, in an announcement made by the Minister for Lands and specifically approved by the Government, it was merely stated that there was “an administrative arrangement for the time being” under which boats “not exceeding 75 feet in length, bona fide owned and operated by fishermen permanently resident in the six counties, would not be prevented from fishing within our exclusive fishery limits.” The arrangement is framed in the negative, (“would not be prevented”), as temporary, and a matter of grace and favour, and no reference was made to any reciprocal permission.
For present purposes a number of features of the correspondence are worthy of particular note. The correspondence suggests that an arrangement similar to the arrangement recorded therein had been in existence for some time. The catalyst for the 1965 correspondence appears to have been the adoption of extended fishery limits in legislation bringing into effect the terms of the London Convention, to which of course the Governments of Ireland, and of the United Kingdom of Great Britain and Northern Ireland had both been parties. The arrangement appears to have been considered by the United Kingdom side at least, as a voisinage arrangement. This is apparent from the explicit reference to Article 9 (2) of the Convention and the headings of both the Belfast letter and the Commonwealth Office note. That description does not appear to have been demurred from or disputed by the Irish side. While there appears to have been an agreement between both sides that there had been an arrangement in place and that it was to continue under the new regime, there are on examination some significant differences of detail and indeed areas which lack clarity. Perhaps most importantly, it is not clear whether the arrangement was limited to vessels “owned and operated by fishermen permanently resident in the six counties” as the Dublin letter stated, or extended to “Northern Ireland owned and operated fishing vessels” as the Belfast letter stated. Was any such arrangement limited to vessels under 75 feet? Does the arrangement operate only in the belt between 0 and 6 nautical miles from the coast (as Article 9(2) of the Convention contemplates), or more extensively? Is the arrangement dependent on reciprocity as the extract from the Commonwealth Relations Office suggests? The trial judge observed that these matters might be highly relevant if the issue for the Court was whether the letters created or evidenced an agreement enforceable in private law. However, he considered that the correspondence had to be approached on the basis that it constituted part of the international relations of the State and be judged by the standards and conventions of diplomatic relations and the law relating thereto.
Finally, it is important to recognise that while the focus of this case is the practice of mussel fishing, the arrangement recorded in the exchange of correspondence and relied upon by the State (and correspondingly challenged by the plaintiffs) refers to fishing of any species, and must be understood, and judged, in that light.
The Arguments of the Plaintiffs
The plaintiffs challenge the lawfulness of mussel fishing by Northern Ireland vessels on grounds ranging from high constitutional principle to closely argued narrow textual analysis of the correspondence. At the high point of the argument was the contention which occupied much of the argument in this Court, that under Article 10 of the Constitution, the mussel seed collected by fishing vessels in Irish territorial waters was a natural resource. In this regard, the plaintiffs relied not only on the natural understanding of that term which they said clearly extended to seed mussel and, perhaps, the capacity to collect it for cultivation, but also pointed to the specific use of that term and similar terms in a large number of official publications. It followed from this it was said, that mussel seed was a natural resource which belonged to the State pursuant to Article 10.1. Permission for fishing or harvesting of mussel seed amounted therefore to an exercise of ‘management’, ‘control’ or ‘alienation’ of such natural resource, which Article 10.3 of the Constitution required to be provided for “by law”, that is legislation enacted by the Oireachtas. Whatever else the correspondence of 1965 constituted or evidenced, it could not be said to be law.
A related constitutional argument was that even if the 1965 correspondence constitutes or evidences a voisinage agreement for the purposes of international law, it cannot be effective because it was not laid before the Oireachtas under Article 29 of the Constitution. Separately, the plaintiffs contend that even if the fishing for mussel seed is capable of being permitted in some way pursuant to a voisinage arrangement, the evidence here falls far short of establishing any such arrangement. Even if the correspondence was, in its terms, capable of being a voisinage arrangement, the plaintiffs seek to rely on the fact that the correspondence is not between sovereign governments or accredited representatives, but between civil servants in Dublin and Belfast. Therefore they say that any such arrangement cannot be a voisinage agreement contemplated by Article 9.2 of the London Agreement which is an agreement between the contracting parties to the agreement. Alternatively, if there is an arrangement constituted or evidenced by the 1965 correspondence, then the plaintiffs seek to contend that that arrangement is justiciable. If so, it is argued that it does not, on true construction, permit the type of fishing now carried out. In this regard the plaintiffs rely on the differences between the fishing practices now carried on, and what was envisaged in the 1965 correspondence, and also point to the absence of any possibility of reciprocal access to the waters around Northern Ireland for fishing for mussel seed, which the plaintiffs argue is a requirement of the arrangement. Finally, and separately, the plaintiffs raise a question of statutory construction. They contend that fishing by persons on board foreign fishing vessels is expressly prohibited by section 10 of the Sea Fisheries and Maritime Jurisdiction Act 2006. While section 8 of the same Act permits lawful entry into the exclusive fisheries limit by a foreign fishing vessel for purposes recognised inter alia by any “arrangement for the time being in force between the State and the country to which the boat belongs”, the plaintiffs repeat their arguments that for reasons already mentioned the 1965 correspondence does not either constitute such an arrangement, or permit entry by the Northern Ireland vessels for the purpose of fishing for seed mussel. The plaintiffs also argue however that section 8 permits entry into territorial waters by fishing vessels only and does not itself permit fishing by any person within the waters entered.
The Arguments of the State Defendants
The defendants take issue with almost every contention advanced by the plaintiffs. They argue that mussel seed cannot be considered a natural resource, at least for the purposes of Article 10. Historically, wild beasts, fowl and fish were “nullius in bonis” that is the property of no one. There was a public right to fish in the sea and in navigable waters. In that regard the defendants rely on Longfield on The Fishery Law of Ireland (Dublin: E Ponsonby, 1863) which observed at page 3:
There were recognised as vested in all the subjects of the realm two well established rights, that of free navigation and free fishing.
This statement was approved in the Irish courts after independence.
In R (Moore) v O’Hanrahan  I.R. 406, which was the opening act in the celebrated legal drama about the right to fish at the mouth of the Erne in County Donegal, Murnaghan J. quoted with approval a passage from Viscount Haldane L.C. in AG for British Columbia v AG for Canada  A.C. 153:
[T]he subjects of the Crown are entitled as of right not only to navigate but to fish in the high seas and tidal waters alike .... It is probably a right enjoyed so far as the high seas are concerned by common practice from time immemorial, and it was probably in very early times extended by the subject without challenge to the foreshore and tidal waters which were continuous with the ocean if, indeed, it did not in fact first take rise in them.
The defendants contended that this public right to fish extended to shell fish and therefore to mussel seed, citing Royal Fishery of the Banne case (1610) Dav. Ir. 55. It was also argued that the act of giving permission to fish was not an alienation of any natural resource for the purposes of Article 10. The defendants also contend that the 1965 correspondence reflects a voisinage agreement, which is either not justiciable at all because it was entered in to by the Government in the exercise of the Executive’s power of control of foreign relations of the State, and the court should accordingly accord to it the level of restraint contemplated by decisions such as Boland v An Taoiseach  I.R. 338, and more latterly Horgan v Ireland  2 I.R. 468. In any event the defendants also argue that the arrangement recorded in the correspondence is sufficiently flexible to cover the fishing carried out in recent times by the Northern Ireland vessels. On the question of the 2006 statute, the defendants contend that section 8 permits entry into territorial waters for a purpose including a purpose contemplated by “an arrangement in force” between the State and another state. That it is said refers to a voisinage arrangement such as the present, and if the purpose of such an arrangement is to permit fishing, such fishing is authorised by law and cannot therefore be a breach of section 10 of the Act.
The Plaintiffs’ Response
The plaintiffs respond to these contentions by raising further arguments of some complexity. They argue that the defendants’ suggested interpretation of the 2006 Act has the effect of ignoring or rendering void the specific prohibition contained in section 10 of that Act. They repeat their arguments that the exchange of letters does not in any event constitute an arrangement for the purposes of section 8. They also argue that mussels cannot be considered analogous to fish for the purposes of the principle of nullius in bonis. Instead they contend that mussels are sessile sedentary creatures which of their nature do not move far from the original point where they rest or are placed, and do not migrate, but rather attach themselves to the sea bed or rocks. In this regard they cited a judgment of Holmes J. for a unanimous US Supreme Court in McKee v Gratz (1922) 260 U.S. 127. In any event, they contend that the principle of nullius in bonis did not survive the clear terms of Article 11 of the Free State Constitution and Article 10 of the 1937 Constitution. Finally, they argue that even if the principle of nullius in bonis still has relevance, it does not extend to or permit commercial activity, relying on Anderson v Alnwick DC  1 W.L.R. 1156 and Alfred F Beckett Ltd. v Lyons  Ch. 449.
The Decision of the High Court
In a comprehensive judgment the High Court judge rejected the plaintiffs’ claim. He observed that it was somewhat surprising that a claim to exclude Northern Ireland fishermen should be advanced at a time when relations between the two parts of the island, and indeed between Ireland and the United Kingdom more generally, were at their most harmonious. He doubted that mussel seed could be considered a natural resource for the purposes of Article 10 of the 1937 Constitution. Rather, he considered that it was nullius in bonis. It could not be said that marine species are owned by the State as distinct from being capable of being managed by it. Most fish species (and the 1965 correspondence related to fishing generally) were migratory wild animals. Birds could also be considered a natural resource, but they roam freely and will sometimes cross state boundaries. States did not own such animals, valuable as they might be both as a source of food or tourism. Accordingly, the judge was doubtful that mussel seed could be regarded as resource as that term was used in Article 10.1, and even more doubtful that what was permitted to happen could be described in any real sense as alienation of such property. He rejected the plaintiffs’ contention that the traditional notion of nullius in bonis must be reconsidered in the context of the terms of Article 10 of the Constitution. There was he considered no hint of such a radical departure from a long established legal order. In particular, the trial judge focused upon the fact that the common law recognised a valuable public right to freely navigate and freely fish the seas and the estuaries and tidal rivers not in private ownership. It was he considered hard to believe that the Irish people in adopting a constitution, whether indirectly though a constituent assembly in 1922 or directly by popular vote in 1937, could ever have contemplated that they were setting aside a long established legal principle dating back from many centuries, and in the process surrendering rights their ancestors had enjoyed over the centuries.
In relation to the plaintiffs’ reliance on a general principle of legality, the High Court judge observed that the 1965 correspondence had occurred in the field of the international relations of the State with its nearest neighbours which was a particularly sensitive relationship, and that a particular degree of restraint was required for the courts in entering into foreign policy issues citing in this regard Boland, Horgan and Crotty v An Taoiseach  I.R. 713. However he considered that the issues raised by the plaintiffs went more to form than the substance of foreign relations and therefore the issues raised were justiciable albeit that a “very considerable margin of appreciation should be afforded to the government”. The arrangement evidenced or recorded in the 1965 correspondence was a type of agreement or convention of a technical administrative nature which did not require to be laid before the Dáil; relying in this regard on The State (Gilliland) v Governor of Mountjoy  I.R. 201. In addition, the High Court considered there was no breach of the 2006 Act, since section 8 expressly contemplated entry by fishing vessels for the purposes of an “arrangement”. Here the arrangement in question provided for fishing in accordance with the terms of that arrangement. Such an arrangement was not only contemplated by the London Convention, but also by European law and in particular Article 5(2) of Regulation 1380/2013. Since entry for the purpose of fishing in accordance with the arrangement was lawful, it followed that such fishing was to be considered authorised by law, and therefore not a breach of the prohibition contained in section 10 of the 2006 Act.
Having rejected the constitutional challenge and the plaintiffs’ interpretation of the 2006 Act, the trial judge then turned to the subsidiary arguments. These were that in the event that it was held that there was a valid voisinage agreement which could permit entry and fishing by certain Northern Ireland vessels, such an arrangement did not extend to the fishing being carried out by the Northern Ireland vessels in respect of mussel seed. This argument was advanced on four grounds: (i) the reciprocity requirement, (ii) a permanent resident requirement, (iii) a limitation of length to 75 feet, and (iv) the habitual fishing requirement. While these are subsidiary arguments of some technicality, they are in my view important in understanding the nature of the arrangement which was found to permit the seed mussel fishing in this case, and therefore have a larger significance for the issues in this case.
The plaintiffs alleged that the 1964 memorandum contemplated that rights to fishing were to be accorded so long as reciprocal rights were afforded by the Irish State. The plaintiffs contended therefore that reciprocity was an essential feature of the arrangement and pointed out, that as far as mussel fishing was concerned there was no reciprocity since the Northern Ireland mussel beds were closed due to the presence of a predator, the slipper limpet. The High Court rejected this argument because it considered that the arrangement applied to all types of fishing and required therefore merely that fishing be permitted on a reciprocal basis but did not require reciprocity at the level of individual species. The permanent residency issue arose because that was how the arrangement was described in the O’Sullivan letter (although not in the Elliott reply). However, the trial judge considered that the structure of the fishing industry had evolved in the 50 years since the correspondence and that the arrangement was “robust enough and flexible enough to deal with the structures of an industry which like other industries can be expected to evolve over time”. (Para. 41) A similar line of reasoning disposed of the plaintiffs’ argument that the vessels permitted had to be limited to 75 feet in length. The agreement was one for reciprocal fishing. Once the condition for Irish vessels changed, then the requirements applicable to Northern Ireland boats also altered.
Finally, the trial judge considered the plaintiffs’ argument that the voisinage agreement must be limited to forms of fishing and in particular fishing for species, which had been carried out habitually, prior to the correspondence and indeed the London Convention. This argument was based upon the terms of the London Convention which referred to habitual fishing and the rights of fishermen of a contracting state who had “habitually fished in the area by reason of the voisinage arrangement”. It was argued that Northern Ireland fishermen had not habitually fished for mussels prior to 1965, or to put it another way, Northern Ireland mussel fishermen had not habitually fished those waters prior to 1965, therefore the voisinage arrangement did not extend to such fishing. The trial judge considered that the arrangement was one which permitted access by Northern Ireland boats to areas which had been habitually fished by Northern Ireland vessels, and was not limited to species which had been fished in those waters. Accordingly the trial judge rejected the plaintiffs’ claim.
I sympathise entirely with the trial judge’s bemusement that at this stage of North-South relations, and indeed the relations between Ireland and the UK more generally, that the Court could find itself adjudicating upon a claim with an avowed object of invalidating an important area of cooperation between the jurisdictions. It is also possible to admire the skill of the officials and those involved in 1965 who achieved important cooperation at a practical level in the interstices between some apparently intransigent ideologically positions. It is also open to doubt that success in these proceedings will result in any improvement in mussel stocks or benefit the plaintiffs in any practical way. However the function of these courts is to adjudicate on justiciable controversies which are in dispute between parties. The issue here is not the desirability of cooperation, but whether it has been achieved lawfully, and that issue must be addressed squarely. In this regard I accept the High Court’s analysis of the arrangement. In particular I agree that reciprocity is only required at the general level of fishing, and is not required at the level of each species. I also accept that the arrangement must be a flexible one if it is to permit the fishing now carried out. The corollary is however that the present fishing is not within the precise terms of the 1965 correspondence. Furthermore it follows that the 1965 exchange cannot be said to either constitute the agreement or evidence its terms, but must be seen as a particular iteration of an underlying arrangement.
The range of arguments made is extensive, and the material daunting, not least, the extensive historical references not just as to public rights of fishery, but also the provisions of Magna Carta, and as will be seen, some aspects of Brehon Law. Furthermore, and notwithstanding the range of materials industriously collected and presented to the Court, it is difficult to escape the suspicion that it is only a fraction of all the available material on an area which as a matter of both law and fact involves historical inquiry as to matters far distant from the aquaculture business in a modern democratic State. The history of Irish litigation of fishing rights shows that even careful and well reasoned judgments based on expert evidence of the highest quality are not beyond criticism or doubt.
While the difficult question debated at some length between the parties as to whether mussel fishing could be said to be the management of a natural resource within the meaning of Article 10 of the Constitution, or merely an activity which can, but need not, be regulated by the State, is one which could have far reaching ramifications in relation to other resources and State property more generally, it may not have any significance at a practical level in this case. That is because, even if neither the mussel seed nor the surrounding waters are a natural resource and therefore State property within the meaning of Article 10, it was not doubted that the State may regulate the business of mussel fishing, licence access to it and generally control it in the public interest. The power of the State to regulate any activity is not dependent on it involving State property contemplated by Article 10. Any right to fish therefore may be subject to requirements as to licensing, quantity, size and season, conservation and more.
It is tempting therefore to seek to address this case on the most narrow possible basis, either by reference to the nature of the mussel itself or by reference solely to the question of statutory interpretation. It does not appear possible however to approach this case on the basis that mussel seed is a different category to fish. The mussels which the US Supreme Court to be sessile sedentary creatures were fully mature mussels taken from beds in privately owned river beds. The possibility of approaching this case as a narrow issue of statutory interpretation was a point made with economy and clarity by Mr. Aston on behalf of the defendants. He observed that at one level it did not matter if what was involved was the regulation of a natural resource and therefore the property of the State, or an activity which was merely subject to regulation. That is because the only consequence in this case of a finding that mussel fishing is the exploitation of a natural resource, is that the control of management and/or alienation of the resource is required to be provided for “ by law” under Article 10.3. In the event that it is necessary to point to a law, then the defendants contend that the 2006 Act, and in particular sections 8 and 9 satisfies that requirement. Accordingly, if mussel fishing by Northern Ireland fishermen is permitted, it is not permitted by any voisinage arrangement at least by its own force, but rather through the medium of section 8. The question for the Court is not necessarily the interpretation of any arrangement at the level of international law, rather the interpretation of an Irish statute. If the 2006 Act properly construed permits fishing by the Northern Ireland vessels in issue, then it is suggested, it is largely irrelevant whether the statute is considered to be the regulation and control by law of a natural resource, or merely a piece of legislation regulating an economic activity in the public interest. On the other hand if the 2006 Act does not permit such fishing, then it is unlawful (since on this basis it would be prohibited by section 10), and on this approach the constitutional status of the mussel seed, is equally irrelevant. Accordingly it was somewhat belatedly suggested, the only question which required to be addressed in these proceedings was the issue of statutory interpretation.
Tempting though this argument is, I have concluded that it is not possible to reduce the case to this narrow focus and thus avoid the question of the interpretation of Article 10 of the Constitution. This question has been very fully argued and the issue is live. The High Court has made a determination upon it. Finally, and perhaps most importantly, even the narrow question of statutory interpretation cannot in my view be entirely divorced from the constitutional question. It matters, or at least may matter, whether the Act is approached as a “law” controlling managing or permitting the alienation of the property of the State, or a piece of administration merely regulating an area of activity.
However, it is I think possible to narrow the issues for determination. It is important to maintain two important distinctions when considering the issues in this case first, the distinction between international law and domestic law in a dualist system; and second, the distinction between the exercise of executive power under the Constitution and the exercise of functions or powers even by a member the executive) under legislative authority.
International Law and Domestic Law
The conduct of foreign affairs is an important executive function, and for that reason rarely comes before the courts. The government conducts diplomatic relations, discussion with other states, negotiates and executes treaties and conventions, and may enter into arrangements or understandings with other countries. Generally none of this requires legislative authority or power. Article 29 dictates very precisely the circumstances in which international agreements must be laid before the Dáil or receive approval by it, and it should be noted, any such approval required is that of the Dáil and not the Oireachtas more generally and is therefore a representative rather than a legislative function. In circumstances where the agreement, arrangement, understanding, or discussion can be implemented by executive action alone and without a charge on the State finances, then it can be implemented by executive action and without seeking permission or even approval in advance from either House of the Oireachtas, (although of course the Government is accountable to the Dáil and may in any case, seek its approval) If there is a dispute as to compliance with any treaty, convention, agreement or even arrangement between this State and another country, then that is a matter to be resolved at the level of international law.
In many cases however, the terms of an international agreement, to use the broadest term, may require implementation in domestic law. In a dualist system however an international agreement may bind the State at the level of international law, but it has no impact within the State unless implemented by domestic legislation. If not implemented or imperfectly implemented, that may mean that the State is in breach of its obligations at the level of international law, but that does not itself give rise to any duties or liabilities at the level of domestic law. The potential for an unintended distance between domestic legislation and international agreements, is lessened by the fact that those agreements are available as aids to construction of the legislation, and there is a sensible canon of construction that courts should seek to interpret implementing legislation so far as possible to avoid incompatibility with the international obligations being sought to be implemented. Nevertheless, domestic legislation cannot be construed contra legem, and if on its true construction, implementing legislation achieves some result not intended or sought by the international agreement, effect must still be given to it. In this case this means that the critical question is not whether there was an international agreement or as is asserted here, arrangement, or indeed its status or meaning in international law: the question is simply what Irish domestic legislation, and in this case the 2006 Act, permits or requires.
The Executive Function
Since the conduct of international affairs is an important executive function, the distinction between executive and legislative functions is also relevant in this case. That distinction is often blurred in the Irish context because the executive sits in the legislature and more often than not effectively controls it and in particular the process of legislation. It is not therefore as important in practical terms to maintain the distinction between matters which can be controlled by executive decision and those which require to be regulated by public general legislation, as it is in other countries with a more complete separation between those powers. Second, it does not appear the precise boundary between executive and legislative functions is one fixed immutably by the Constitution. The Executive is responsible to the Dáil. The Oireachtas may it appears legislate for areas previously controlled by executive action. It is not necessary to consider what if any are the limits to such legislative power. It appears that the executive power in Irish law to date is, as Professor Casey observed, the residue which is left when the judicial and legislative powers are subtracted: Casey, Constitutional Law in Ireland, 3rd Ed., (Dublin, 2000), pp. 230-231. Perhaps the clearest example of this is in the related field of the control of entry of persons to the State. Until the enactment of the Aliens Act 1935, this was an executive function. The executive granted passports to Irish persons, and allowed entry into the State to those which it had either agreed in advance to permit to enter, or was prepared to permit entry. One of the features which made the case of Laurentiu v Minister of Justice  4 I.R. 26 so intriguing was the fact that after the passage of the Aliens Act, it appeared that little in substance had changed: the decision on entry or exclusion was one made by the Minister. But that case turned on the fact, that while the same decision was made by the same person, it was now being made by a Minister not in the exercise of an executive power, but rather as the delegate of the legislature. Crucially that meant that the legislature was required to set out principles and policies by which that power should now be exercised by the Minister, who was in this sense merely persona designata that is the person identified to exercise the power.
These distinctions are important in this case, because the lawfulness of entry into territorial waters and fishing therein pursuant to a voisinage arrangement, may depend not just upon the terms of any arrangement, but the time in history at which the entry occurred. Originally, the setting of territorial limits and the control of territorial waters was a classic executive function untrammelled by legislation. Indeed, territorial limits were originally set at a distance understood to be the limit of a cannon shot; that is the area which the sovereign was able to protect and control from land. Agreement and recognition of territorial limits was effected on a reciprocal basis between states. In a real sense, the territorial limits were determined not only be decision of the executive, but also its capacity and willingness to enforce them by action. If naval vessels confronted foreign vessels and escorted them from the waters, or sought to exercise rights of navigation in contested areas, and if any of these activities resulted in diplomatic protests or worse, all of this operated at the level of the executive function, and did not require any legislative authority, permission, or control.
It appears that it was only as late as 1959 that domestic legislation sought to fix territorial limits and fishing limits and also to regulate the circumstances of entry to those waters, and indeed create offences for breach. This of course is an entirely sensible development, and was in line with international developments since it means that vessels found in breach of the provision may simply be escorted from Irish territorial waters, but can be forced to land, and may then be prosecuted. This development has an important consequence for the issue we are considering. Prior to 1959 the lawfulness of entry of a foreign vessel to Irish territorial waters was a matter solely for the executive and accordingly its permission was sufficient to make lawful any entry and any activity. After the passage of the 1959 legislation, the issue became one involving not executive permission, but rather compliance with statute with the further consequence that the issue might come before the courts for resolution. This distinction may not have been obvious in 1965 at the time of the exchange of correspondence, particularly because as a matter of practicality, permission from the government might have been seen as sufficient for all practical purposes; but that practicality obscured the fact that after the passage of legislation the question of the lawfulness in Irish law of entry into and/or fishing by foreign fishing vessels in, Irish controlled waters, was not determined by whether the government had agreed to the particular activity, or even at international level had bound itself to permit such entry and fishing: the question had become whether such entry and fishing was compliant with the Irish legislation.
Taking this approach, it is possible in my view to reduce the issues in contention. In the first place while I fully appreciate the sensitivity of the relationships involved and the desirability at a constitutional and human level of advancing cooperation, it does not appear to me that this case involves the courts adjudicating upon the conduct by the State of its foreign relations, or that there is any scope for allowing to the government a wide margin of appreciation. Accordingly it is not necessary to consider the line of authority from Boland v An Taoiseach through Crotty to Horgan. This case does not seek either to restrain the government from entering any new arrangement or to compel the government to withdraw from an existing one. Nor does it seek to make the agreement justiciable on its own terms at the suit of private parties. The question here is the interpretation of Irish domestic legislation which it is asserted, makes reference to an international arrangement. The question of what that statute means and its enforcement, is a matter for domestic law subject to the interpretative aids and canons of construction already referred to. If the Court is called on to interpret a voisinage agreement, it is only because its terms have become incorporated in domestic law whether by recitation of the terms in the text, incorporation by reference, or as is alleged here, by use of the single word “arrangement” in section 8 of the 2006 Act.
Four matters at least are clear. First it is in my view beyond argument that there was and is a voisinage arrangement in being between the Government of Ireland and the Government of the United Kingdom of Great Britain and Northern Ireland which is evidenced or referred to in the 1965 Dublin – Belfast correspondence. That is after all how both parties to the arrangement have described it: the British side explicitly in the correspondence itself, and the Irish government in asserting a voisinage arrangement in this case. Furthermore, the references to Article 9(2) of the London Convention, and the coincidence of timing between the announcement and government memorandum in 1959 at the time of passage of the 1959 Act, and the exchange of correspondence in 1965 in close conjunction with both the London Convention and the 1964 amendments, strongly support this description. Second, for the same reason, I am satisfied that the reference first in section 221 of the 1959 Act, and now repeated in section 8 of the 2006 Act, to an entry pursuant to an arrangement in force, includes, and may well have been intended to refer specifically to the voisinage arrangement asserted here. It may be as a matter of international law such an unpublished arrangement is no more than a “gentleman’s agreement” as suggested by Symmons, “The Sea Fishery Regime of the Irish Sea” (1989) 4 Int Jo Estuarine and Coastal Law 192 and indeed it does seem to be quite an informal matter, particularly when compared to the elaborate ceremonies attaching to the negotiation, signing and ratification of international treaties. I doubt that there would be any consequences at the level of international law if either side resiled from or failed to perform the arrangement. The issue here however is its effect in domestic law, as providing authorisation by law for fishing by foreign sea fishing vessels. I should also say that I am satisfied that the correspondence was authorised and approved by the UK Government and therefore no issue arises as to the capacity of the parties.
Third, I am satisfied that the arrangement evidenced or recorded in the 1965 correspondence is not invalid for failure to comply with the formalities required by Article 29 in respect of treaties binding the State. That Article makes a very careful distinction between different levels of international agreement, and in particular between those international agreements (other than those of purely technical or administrative character), which bind the State and must be laid before the Dáil, and those which involve a charge on public funds which must be approved by the Dáil. This careful distinction is fully consistent with theory of parliamentary power underpinning the Constitution and the primary role of the Dáil in financial affairs. I agree with the High Court that the arrangement is not invalid and cannot be impugned on the grounds that it was not laid before the Dáil in accordance with Article 29. I consider however that this is because it was an arrangement in the mature of a gentleman’s agreement rather than an “agreement which binds the State”, and thus the provisions of Article 29 were not triggered at all, rather than an agreement of a technical or administrative nature which did not require to be laid before the Dáil, although nothing turns on this for the purposes of this case.
Fourth and finally, I am satisfied that the reference in section 8 of the 2006 Act (reproducing in this regard the terms of section 221 of the 1959 Act) to an “arrangement” is sufficiently broad to cover voisinage arrangements and, indeed, given the coincidence of timing, that the term may well have been intended to refer specifically to the voisinage arrangement in respect of fishing in the coastal waters of Ireland and Northern Ireland. The question in this case therefore becomes whether the fishing for mussel seed by persons on Northern Ireland vessels (and perhaps the entry into the territorial waters of such vessels for that purpose) can be said to be permitted by the terms of sections 8 to 10 of the 2006 Act. That issue may depend in part upon whether such fishing constitutes the management, control or alienation of a natural resource or the exercise of a franchise in respect thereto, and if so what the Constitution requires for such control, management or alienation.
Article 10 of the Constitution
The full text of Article 10 of the 1937 Constitution provides:
It is appropriate to note at this point the breadth of the statement contained in Article 10. Not only is the word “all” used repeatedly (“all natural resources”, “all land and all mines, minerals and waters”) but the subject matter of the Article is itself far-reaching. “Natural resources” necessarily include the air, and forms of potential energy and therefore extended to matters which were conceivably not understood in 1937 as natural resources, or capable of exploitation. Furthermore, the Irish text puts it in, if anything, broader terms, referring to “Gach ábhar maoine nádúrtha” which as Ó’Cearúil points out, literally translated refers to every natural source of wealth: Micheál Ó Cearúil, Bunreacht na hÉireann, A study of the Irish text, The All-Party Oireachtas Committee on the Constitution, (Dublin, 1999), p.95. It seems the breadth of the formulation of Article 10 may have encouraged the broad interpretation given by the majority in Webb v Ireland  I.R. 353 to the term “royalties”.
The inspiration for Article 10 is clear. It is largely a reworking of the provisions of Article 11 of the Irish Free State Constitution of 1922:
All the lands and waters, mines and minerals, within the territory of the Irish Free State (Saorstát Éireann) hitherto vested in the State, or any department thereof, or held for the public use or benefit, and also all the natural resources of the same territory (including the air and all forms of potential energy), and also all royalties and franchises within that territory shall, from and after the date of the coming into operation of this Constitution, belong to the Irish Free State (Saorstát Éireann), subject to any trusts, grants, leases or concessions then existing in respect thereof, or any valid private interest therein, and shall be controlled and administered by the Oireachtas, in accordance with such regulations and provisions as shall be from time to time approved by legislation, but the same shall not, nor shall any part thereof, be alienated, but may in the public interest be from time to time granted by way of lease or licence to be worked or enjoyed under the authority and subject to the control of the Oireachtas: Provided that no such lease or licence may be made for a term exceeding ninety-nine years, beginning from the date thereof, and no such lease or licence may be renewable by the terms thereof.
Once again, the source of this language is not in dispute. In Leo Kohn’s The Constitution of The Irish Free State (London: George Allen & Unwin Ltd., 1932), pp. 172-174, it is stated that this Article 11 was inspired by the terms of the Democratic Programme of 1919:
Of the declarations embodying a programme of social, economic or educational reform, which are so characteristic of modern Continental constitutions, the Irish Constitution contains only two, a declaration asserting the right of all citizens of the Free State to free elementary education and a general provision postulating the nationalisation of the natural resources of the country. Both were inspired by those socialistic tendencies which, as shown in a preceding chapter, exercised a potent influence on the framing of the Irish revolutionary program. Efforts were made by the Labour Party in the course of the debates in the Constituent Assembly to secure the inclusion in the Constitution of the radical postulates of Connolly’s creed as reaffirmed in the “Democratic Programme” of the first Dáil, but the outlook of the majority of the Assembly was too positivist to favour the enunciation of far-reaching principles .... The provisions of Article 11, proclaiming the succession of the Free State to the beneficiary rights in the lands, waters and mineral resources previously vested in the British Crown and its title to the control of all the natural resources of the country and the income derived therefrom, represent only a very incomplete realisation of the socialistic postulates of the “Democratic Programme” of 1919. The Article, which in the Draft Constitution merely prohibited the alienation of State rights in natural resources of national importance and subjected their exploitation by private agencies to State supervision, was considerably amplified in the Constituent Assembly. In its present form is legal import is twofold. It establishes, in the first instance, the legal succession of the Free State to all the rights and lands, waters, mines and minerals within the territory of the Free State which were previously vested in the British Crown or any Department of State or held for public use or benefit. In the second place, the Free State is invested with a general title to the control of all natural resources of the country, including the air and all forms of potential energy and of all royalties and franchises derived from their exploitation .... Though this falls considerably short of the comprehensive postulates of the revolutionary programmes, the terms of the Article are wide enough to enable a progressive nationalisation of the natural resources of the country to be effected.
It also appears that the thinking behind both Article 11 of the Free State Constitution and Article 10 of the Constitution was, if not influenced by, at least compatible with early 20th century Catholic social theory. Hogan’s The Origins of the Irish Constitution, 1929-1941 (Dublin: Royal Irish Academy, 2012) contains correspondence with the principal drafter of the Constitution from various bodies proposing a text in very similar form (which incidentally, also made specific reference to fisheries), and cross-referring to certain encyclicals, and in particular Quadagesimo Anno. In this sense, it might be said the socialist thinkers who influenced the Democratic Programme and the Catholic social theorists of the early 20th century, shared a scepticism of unbridled rights of private property.
Articles 11 of the Irish Free State Constitution, and 10 of Bunreacht na hÉireann have rarely been the subject of consideration in litigation or academic works. This is not surprising. They come from those portions of the Constitutions which are intended to operate at a high and almost abstract level asserting the existence of a Nation and its attributes. That of course was of very considerable importance in 1922 and again in 1937. The difficulty of identifying the impact of the Articles is perhaps unavoidable given the level of abstraction of the statement and the source of the language and concepts used, which operated at a more theoretical than practical level.
It is clear that in ordinary language the harvesting of mussels from territorial waters would readily be understood as the ‘management’ or ‘control’ and perhaps even ‘alienation’ of a natural resource either because the seed itself is seen as a natural resource, or because the waters from which it is taken, or the capacity to take it is the natural resource. Indeed this is so readily accepted as a matter of ordinary language that is rarely necessary to identify precisely the natural resource involved. There is no doubt that at the level of language employed in everyday use, the harvesting of mussel seed in territorial waters of the State would be seen as the exploitation of a natural resource. This point was not seriously challenged by the State parties, and the plaintiffs were able to point to a number of official publications using just this language in respect of aquaculture generally and mussels in particular. The defendants argue however, and the trial judge appears to have accepted, that the harvesting of such seed did not come within Article 10 because of two related concepts of some antiquity: first, that mussels, like fish and wild animals were “ nullius in bonis”, and second that there was a well recognised public right of navigation, and in particular fishing, in territorial waters. If mussel seed was a natural resource, the argument ran, then it followed from Article 10 that it was the property of the State, which it was said was inconsistent with it being nullius in bonis. If this was so, it was argued that the ancient common law right of the subject to free fishing in the sea which had been enjoyed prior to 1922 was lost on the coming into force of the Constitution of that year. It was argued, and the High Court judge appears to have accepted, that the drafters of the two Constitutions and those who adopted them, should not be understood to have altered a well established principle of law which was connected to an ancient right enjoyed by the People themselves.
These arguments involved consideration of decisions of considerable age, and some difficult concepts and distinctions. The difficulty is if anything compounded by the arguments deployed by the plaintiffs in reply. The plaintiffs argued first that either mussel seed could not be considered nullius in bonis because they did not move or migrate in the manner of animals or birds, but rather attached themselves to land or rock or other objects. Accordingly it was said they are much more akin to seaweed which the plaintiffs contended was not nullius in bonis, arguing that this must be taken to be the outcome of the decision in Brew v Haren (1877) 11 I.R.C.L. 198, which must be understood as having either overruled, or distinguished to vanishing point, the prior decision of R v Clinton (1869) 4 I.R. C.L. 6. Alternatively, the plaintiffs argue that the principle of nullius in bonis could not survive the clear words and intent of Article 11 of the Free State Constitution and therefore Article 10 of the 1937 Constitution which was to secure ownership of natural resources by the State for the People themselves. Finally, it was also argued that the principle of nullius in bonis did not extend to commercial activities.
The position in relation to public fishing rights was even more complex. The question arose because it was necessary, it was said, to consider the position at common law in relation to fishing on the seas at least in territorial waters, prior to the enactment of the 1922 Constitution. The High Court judgment laid emphasis on the statement in the AG for British Columbia v AG for Canada  A.C. 153, already quoted above where Viscount Haldane said at page 169:
[T]he subjects of the Crown are entitled as of right not only to navigate but to fish in the high seas and tidal waters alike. The legal character of this right is not easy to define. It was probably a right enjoyed so far as the high seas are concerned by common practice from time immemorial, and it was probably in the very early times extended by the subject without challenge to the foreshore and tidal waters which were continuous with the ocean, if, indeed it did not in fact first take rise in them. The right into which this practice has crystallised resembles in some respects the right to navigate the seas or the rights to use a navigable river as a highway, and its origin is not more obscure than that of these rights of navigation. Finding its subjects exercising this right as from immemorial antiquity, the Crown as parents patria no doubt regarded itself bound to protect the subject in exercising it, and the origin and extent of the right is legally cognisable or properly attributable to that protection, a protection which gradually came to be recognised as establishing a legal right enforceable in the Courts.
It is indeed a matter of interest that much of the common law relating to fishing rights has been established in cases relating to contested fishing rights on Irish rivers. Thus, Viscount Haldane’s statement was itself made in the context of approving the judgment of Lord Blackburn in Neill v Duke of Devonshire  8 App. Cas. 135. That was a case which involved a challenge to fishing rights claimed by the Duke of Devonshire in the Blackwater river which were acquired by the Duke by a title stretching back to the Earls of Desmond, a grant by Queen Elizabeth to Sir Walter Raleigh, his attainder, and successive letters patent of King James the 1st. Lord Blackburn cited at page 177 with approval Hale’s De Jure Maris :
The right of fishing in this sea (i.e. the narrow seas adjoining the coast) and the creeks and arms thereof, is originally lodged in the Crown, as the right of depasturing is originally lodged in the owner of the waste whereof he is lord or where, or as the right of fishing belongs to him that is the owner of a private or inland river .... But though the king is the owner of this great waste, and as a consequent of his propriety hath the primary right of fishing in the sea and the creeks and arms thereof, yet the common people of England have regularly a liberty of fishing in the seas or creeks or arms thereof, as a public common of piscary; and may not without injury to their right be restrained of it unless in such places creeks or navigable rivers where either the king or some particular subject hath gained a propriety exclusive of that common liberty.
It was necessary to address these arcane issues because they became relevant when disputes arose over the entitlement to fish in estuaries and tidal rivers; a matter which was particularly contentious in Ireland both before and after the achievement of independence. The public right of fishing could only be displaced by proof of title to a private fishery. In most cases of course owners of the fishery were able to point to documentary title of considerable age purporting to transfer rights of fishery. However, that in turn was subject to what were understood to be the provisions of Magna Carta, and in particular the provision that “no banks or rivers shall be defended from henceforth but those which were in defence at the time of King Henry our grandfather, by the same places, and by the same bounds, as they were wont to be in his time”. As Kennedy C.J. observed in R (Moore) v O’Hanrahan, the expression “in the time of King Henry our grandfather” became afterwards equivalent to “before the time of legal memory” by the effect of the Statute of Westminster (3 Edw. I)(1275). It appears from the same judgment that similar provisions were contained in the version of Magna Carta that was sent to Ireland, that of 1216 1 Henry III. This provision had been interpreted for some time as a provision precluding the royal grant of new fisheries in tidal waters. This was so even though as Lord Blackburn observed in Neill v Duke of Devonshire  8 App. Cas. 135, at pp. 177-178, that there must be “considerable doubt as to whether the 16th chapter of Magna Carta did more that restrain the writ de defensione ripariae whereby when the king was about to come into a county all persons might be forbidden from approaching banks of the rivers, whether title or not, and that the king might have his pleasure in fowling and fishing therein.”
Magna Carta, for all its celebration in the constitutional history of the common law world was, after all, more an agreement between the king and his nobles, than any general statement of the rights of more humble subjects. At a general level there might perhaps be much to be said for Lord Blackburn’s interpretation. However, in the leading case of Malcomson v O’Dea (1863) 10 H.L.C. 591, the House of Lords had held that Magna Carta was to be interpreted as a prohibition on the creation of new exclusive fisheries by royal grant, though all fisheries were left untouched which had made several fisheries to the exclusion of the public not later than the time of legal memory that is the reign of Henry II. The legality of title to any private fishery in tidal waters depends therefore on the existence of a private fishery before the time of legal memory. However, it was to be presumed from evidence of the long user of an alleged private fishery by an individual or body that such fishing had been carried out lawfully rather than unlawfully and therefore from a title preceding Magna Carta. Accordingly, and crucially, the onus lay on anyone challenging the documentary title to demonstrate positively something which in general terms must have been quite difficult, that such a fishery was based upon an original grant after Magna Carta and in breach of its terms, rather than a continuation of a presumed lawful user. By the use of this presumption, the common law allowed an owner of a fishery who could show that his predecessors had been in possession for some time, to maintain rights of fishery, notwithstanding the problems posed by the understanding of Magna Carta.
Thus, in the two leading cases, the House of Lords was able to hold that fishery rights existed in the tidal areas of the Shannon, Malcomson v O’Dea  10 H.L.C. 591, and in the river Blackwater, Neill v The Duke of Devonshire (1882) 8 App. Cas. 135. However, while the holder of the documentary title could be reasonably secure in England or in those parts of Ireland which had long been subject to the common law, this route was likely to prove more difficult in those areas of Ireland which had not been subject to the Crown and common law at the time of Magna Carta, and therefore where there certainly could not have been a royal grant prior to the time of legal memory. In such cases it was necessary to show that it was possible for rights of fishery to exist under the legal system which preceded the common law, either perhaps the law of the Ostmen, the Danish settlers in Ireland as referred to in the case of the Shannon (Malcomson v O’Dea), or more particularly in Ulster or Connacht, under the Brehon Law. As it happened these cases fell to be decided after independence, at a time when it might be said the courts were more sceptical of land owners claims to private fishery rights than the respective Houses of Lords which had decided the Shannon and Blackwater cases in Malcomson v O’Dea and Neill v The Duke of Devonshire. The situation was further complicated because as Murnaghan J. pointed out in R(Moore) v O’Hanrahan  I.R. 416 at p.444:
The salutary doctrine of the Crown as parens patriae was bound to protect the public rights of fishing did not, unfortunately, prevail in this country, and it is common knowledge that many of the valuable fisheries in tidal waters have been granted to private individuals. This is a matter of history.
The first case decided after independence concerned fishery in the tidal waters of the River Erne at Ballyshannon, County Donegal. The fascinating story of these proceedings and the individuals involved is set out in Thomas Mohr, ‘Brehon Law before Twentieth Century Courts’ (2002) 16 Peritia 352. A challenge was made to the asserted fishing rights of the proprietors of the Erne Fisheries who could trace their title to a grant of the landed estates at court. The District Court refused to adjudicate on the dispute on the basis that an issue of title was involved. The Supreme Court (Kennedy C.J. and Murnaghan J.; Fitzgibbon J. dissenting) overturned a decision of the High Court and refused an order of mandamus directing the District Court to hear and determine the matter (R (Moore) v O’Hanrahan).Thereafter proceedings were initiated by the proprietors of the fisheries seeking declaration as to the existence of fishing rights. The proceedings involved considerable expert evidence from the leading historians and Celtic scholars of the day, including Professor Eoin MacNeill, and Professor Dan Binchy who was to become perhaps the preeminent Celtic scholar in the field of Brehon Law. This evidence was designed to attempt to establish that there was no possibility of the grant of individual private fishery rights under Brehon Law. This evidence was accepted by the Supreme Court on appeal, and resulted in a remarkable decision that the plaintiffs, the holders of documentary title, for which they had paid a considerable sum, had no title to the fishery in the tidal waters of the Erne. Mohr records that when news of the Supreme Court decision ( I.R.44) reached Ballyshannon, it was the subject of public celebrations, the flying of flags and banners, and the lighting of tar barrels. This is a tradition which, like much of the complex and interesting law surrounding fisheries, appears to have fallen largely into disuse. This case of course became if anything even more well known, when the disappointed Plaintiffs sought to appeal the decision to the Privy Council: Moore v Attorney General of Ireland  I.R. 472., which is the last occasion on which a judgment of that court is to be found in the Irish reports.
In Little v Cooper  I.R. 1, it was held by the High Court that a valid private fishery did exist in the tidal waters of the River Moy in County Mayo. However, later again, in Foyle and Bann Fisheries Ltd v Attorney General  83 I.L.T.R. 29, Gavan Duffy J. heard further extensive evidence from experts such as Dr. Ruthven, Dr. James Henchy (who it seems likely was the future Henchy J. who sat with such distinction on this Court), and Professor Binchy who had the intellectual honesty to give evidence that a further extensive study had led him to the conclusion that the position advanced in the Erne Fisheries case as to the state of Brehon Law, was incorrect. Gavan Duffy J. held that the documentary title of the plaintiff to a fishery in a branch of the Foyle which lay wholly in County Donegal was not valid, at least against the public right, holding that the onus of proof lay on a party asserting a private right of fishery in tidal waters against the public.
Over this period in the different cases, the courts heard evidence from many of the great figures in the fields of early Irish studies, and celebrated historians, but almost inevitably, without achieving any agreed position or indeed consistency of result. It thus appears that the Shannon, Blackwater and Moy have valid private fisheries in the tidal waters whereas the Erne in Ballyshannon and the Foyle in that part of County Donegal did not. In particular this extensive litigation did not shine much light on the extent of Article 11 of the 1922 Constitution, notwithstanding some references to it by both Kennedy C.J. and Murnaghan J. (who had been on the drafting committee in 1922) and a later insightful reference by John A. Costello, by then a former Attorney General, in the Dáil debates on legislation in the aftermath of the Erne fisheries case.
These are important cases from the point of view of the law relating to fishing, and are fascinating pieces of legal history which also cast light upon Irish history more generally of the late 19th and early 20th century. However, I do not think that they resolve this case. Given the uncertainty that these cases display as to both the underlying history, in the field of Brehon Law, and indeed as to the terms of Magna Carta, they are if anything cautions against broad generalisations beyond what is specifically in issue in a particular case. All of this perhaps only illustrates Binchy’s mournful observation on the publication of his magisterial work on the Brehon laws: “what Maitland said of the Anglo-Saxon sources is even more relevant to the native Irish law; (“many investigator will leave his bones to bleach in that desert before it is accurately mapped”). I had hoped to provide subsequent explorers with a very rough sketch map. But as things are I can only offer them a ticket of admission to the desert”.
It is important therefore to recall the object for which this learning is deployed. It is argued that if mussel seed, as the plaintiffs contends, is to be treated as a natural resource for the purposes of Article 10 of the Constitution, it must then follow that it “belongs to the State”, which it is said is incompatible with the concept of fish as nullius in bonis, and the closely related doctrine of the public right to fishing, both in tidal waters and more importantly the seas within territorial limits. The final step in the reasoning then is to argue that the people who adopted the 1937 Constitution and their representatives who adopted the 1922 Constitution in a constituent assembly, could not have intended to give up an important public right of great antiquity, or indeed interfere with a settled provision of law. Therefore the otherwise broad terms of Article 10 must be given a more narrow meaning so that the term “natural resource” did not include fish, including in this respect mussel seed.
I find this process of reasoning more than a little artificial, and ultimately unpersuasive. First, I think it is indeed unlikely that either Article 11 of the 1922 Constitution or Article 10 of the 1937 Constitution were drafted against a background of detailed consideration of the ancient and complex common law of fishery rights. But if that was the case, it would I think have been more likely that express mention would have been made of the manner in which fishery rights were to be dealt with under the Constitution given the fact that they were a matter of some contemporary contest, rather than leave them to be apparently covered by words of general application, the limitation on which would only be known to those with a detailed knowledge of aspects of fishery law- an area that was not in any event free from controversy. Furthermore, the inspiration for Article 11 of the Free State Constitution is acknowledged to be the provisions of the Democratic Programme which were influenced by socialist thinking which, as of 1919, was quite radical. It certainly seems unlikely that either the drafters or the people either in 1919 or 1937 intended to restrict or interfere with any public right of fishing. However, they may not have considered residual state ownership of natural resources as declared in 1922 and 1937 incompatible or inconsistent with, or in any way inimical to any such right.
I would draw a somewhat different conclusion from the historical argument. There is no reason to believe that the drafters or the people adopting the Constitution considered they had to choose between including fishing within the definition of what could be considered the exploitation of a valuable natural resource, and any existing public rights of fishery. Rather I would conclude from the broad and general terms of Article 11 of the Irish Free State Constitution and its 1937 successor, and the absence of any other specific reference elsewhere in either Constitution, that the drafters, and those who adopted the Constitution, did not consider there was any incompatibility between residual state ownership of natural resources encompassing fishing in territorial waters, and existing public rights. The structure of the Constitution, and its known sources would lead me to seek an interpretation which maintains both that fishing in the territorial waters is the exploitation of a natural resource and the continued existence of public rights of fishery rather than to consider that we are forced to choose one to the exclusion of the other.
The breadth of the statement in Article 11 of the 1922 Constitution and Article 10 of the 1937 Constitution is striking. That must inform the interpretation of both Articles. Article 11 of the Irish Free State’s Constitution refers to “ all lands and water … within the territory of the Irish Free State and all the natural resources in the same territory (including the air and all forms of potential energy) and also all royalties and franchises within that territory ....” It provides that these are matters which belong to the Irish Free State subject to any trusts, grants, leases or concessions etc. Article 10 of the 1937 Constitution recasts this provision but uses very similar language which seems to make it clear that the breadth of the State property is at least as wide as captured by Article 11 of the 1922 Constitution. Again, it includes all forms of potential energy within the concept of natural resources, and in accordance with Article 10.2 provides that all mines or minerals or waters which belong to Saorstát Éireann belong to the State. In the 1937 Constitution this must be read with Article 2 of the Constitution as enacted, which then provided that the national territory consisted of the island of Ireland, its islands and the territorial seas.
It is useful, I think, to approach the 1922 Constitution on the basis that it sought at every point where it was possible to expel the King as sovereign and to assert the sovereignty of the People. This included replacing the King as the ultimate default owner of all property and introducing in his place the State. In the Blackwater case (Neill v Duke of Devonshire), Lord O’Hagan set out the existing common law at pages 157-158 of the report: “Upon the general principles which must govern our opinion there has not been and there could not be the suggestion of a doubt. The right of the Sovereign exists in every navigable river where the sea ebbs and flows. Every such river is “a royal river and the fishing of it is a royal fishery and belongs to the Queen by her prerogative”, citing in this regard Sir John Davies Report page 56. Lord O’Hagan continued: “’The right of fishing in the sea’ according to Lord Hale, and the creeks and arms thereof, is originally lodged in the Crown, as the right of depasturing is originally lodged in the owner of the waste whereof he is lord, or as a right of fishing belongs to him that is the owner of the private or inland river.” (Hargrave, Law Tracts, De Jure Maris, pars prima, cap. 4 p. 11)
Article 11 of the Irish Free State Constitution (and subsequently Article 10 of the 1937 Constitution) can be understood as inserting the new State in place of the sovereign as the default owner of property. Indeed it is interesting how Kennedy C.J., who was of course on the drafting Committee of the 1922, described the constitutional transition in another limb of the Erne fisheries controversy reported in  I.R. 471. The issue there was the position of the Attorney General, and the holder of that Office’s capacity to assert public rights, which in turn involved some consideration of both the 1922 Constitution and the Minister and Secretaries Act 1924, matters with which Kennedy C.J. had perhaps unrivalled familiarity. At page 495 of the report he said:
It is to be observed that the character of the office of Attorney General followed from the constitutional development of the Crown, from the time of the personal kingship, in theory parens patriae and protector of the rights of the people, to the time of the impersonal Crown, which is almost synonymous with what we call “the public”, that is to say, the people of the State or the community incorporated under that form or style, and expressing itself through that organ.
This observation suggests that the change effected by Article 11 was not necessarily seen as radical, or indeed incompatible with the existence of public rights.
It is notable that in the extract cited above, Lord O’Hagan speaks, I think correctly, of the right of fishing rather than the property in the fish. Manifestly, this right of the sovereign prior to 1922 was not considered to be incompatible with either the public right of fishing in seas or tidal waters, or with the legal status of fish and other wild animals as nullius in bonis.
Much of the difficulty arises here because of the assertion that it is the mussel seed itself which is the natural resource, and therefore the property of the State. It may be easier to address the matter at the level of generality which the Constitution itself adopts. There can be no doubt that Article 10 extends to air and water and in particular to the capacity to extract potential energy from either source, or indeed any source within the State. Thus, the capacity for example to exploit the power of waves or the wind would I think be readily understood to be included within Article 10, notwithstanding the fact that no one can claim ownership in the water or the air, and that the waves which wash the shore and the wind which blows over land and sea cannot be said to be territorially limited in any way. The capacity to extract from the waters or the air energy for commercial purposes falls easily within the concept of both Constitutions and would also I readily be understood as within the broader terms of the Irish text - ábhar maoine nádúrtha – a source of natural wealth. It would I think follow, that either the territorial waters in which the fish may swim or the mussel seed may be found, or the right to fish in those waters, can be understood in the same terms. It is not I think either necessary or desirable to attempt further delineation of the nature, structure and constitutional context of any public right of fishing, or rights to collect seaweed on the foreshore, since they are not raised directly in this case.
It is however notable that both Constitutions speak of the ownership by the State of land and natural resources being subject to rights, trusts, grants and other such provisions. If, as is suggested by the late Victorian cases, the origin of the public right of fishery was the sovereign’s decision to maintain and protect it, then there is no reason to assume that either the 1922 Constitution or the 1937 Constitution, both of which assert that all power and authority comes from the People, should be seen as any less protective of the People’s rights. The State ownership of natural resources asserted in 1922 and 1937 may be subject to any rights, if so analysed, in the same way as the sovereigns title was prior to 1922. However this does not require to be decided here. It is sufficient for this case to conclude that on the plain meaning of Article 10 of the 1937 Constitution, the regulation of fishing for mussel seeds at least, when carried out in the territorial waters of the State, is the regulation and management of a natural resource, and therefore property belonging to the State which must be provided for by law, which must mean public legislation adopted by the representative of the People in the Oireachtas.
The Interpretation of the 2006 Act
The complex debate about the legal status of mussel seed and the existence of public rights of fishery, does not however resolve this case. It means merely that Article 10.3 of the Constitution applies, and therefore that any regulation or management of a natural resource must be made by “law”. Clearly the voisinage agreement is not such a law. It is not legislation enacted by the Oireachtas. It was not laid before either House of the Oireachtas. It was not publicised, was not available for debate and it was not even necessarily known to any of the representatives of the People at any point during the time when it is suggested it has regulated access to the State’s waters and fishing therein. Indeed, it is accepted that it lacks sufficient certainty and clarity such that if it were a private agreement, it would not constitute a legally enforceable one. Indeed, it appears that the voisinage arrangement identified in the High Court is not limited to the ambiguous and uncertain language of the 1965 correspondence, but is of necessity more broad and flexible. The logic of the High Court’s conclusion is that the agreement is sufficiently flexible to permit the fishing for species which may not have been fished in 1965, by methods not used, by vessels which were not contemplated, and indeed in circumstances where the precise area was not identified, and that such fishing can be carried out by persons or undertakings quite different from those contemplated in 1965. Indeed, the end point of the State’s argument was that the voisinage agreement enforceable under the 2006 legislation is something different from what was recorded in 1965 which was only a manifestation of it, even though no evidence given as to by whom or how any such more flexible and general arrangement had been made. Plainly therefore the arrangement identified by the High Court decision, is not itself “law” for the purposes of Article 10.
However the State defendants seek to avoid these difficulties by arguing that the 2006 Act is legislation and therefore “law” which satisfies the provisions of Article 10.3. In particular it is argued that although section 10 appears to prohibit a person on board a foreign sea fishing boat from fishing within the exclusive fishery limits unless authorised by law, that any fishing carried out here in the context of mussel seed was authorised by law in the shape of section 8. That section prohibits a foreign sea fishing boat from entering within the exclusive fishery limits except for a purpose or purposes recognised by community law, international law, or “any convention, treaty or arrangement for the time being in force between the State and the country to which the boat belongs”. It is argued that fishing by persons on board a Northern Ireland fishing vessel is a purpose recognised by the voisinage agreement in this case, being therefore an arrangement for the time being in force under section 8. Since section 8 permits entry into territorial waters for that purpose, and must therefore be understood as a “law” permitting fishing both for the purposes of Article 10.3 and section 10.
It is at this point that it becomes important in my view that the fishing activity carried out here is seen as the exploitation of a natural resource being either the waters in which it takes place, or the capacity to fish therein. 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. It follows in my view, that the Court should take a strict approach to the requirements of Article 10.3 which ensures compliance both with the text and the underlying rationale of the Article.
It cannot be said that the only purpose of entry into territorial waters, even by a fishing vessel, is fishing. There are a number of purposes which foreign sea fishing vessels may be permitted to enter Irish territorial waters including shelter, transit to other fishing grounds, the landing of catch and perhaps the requirement to land to effect repairs. Clearly an arrangement can be made for the purpose of fishing, but all section 8 permits is entry by the vessel for such a purpose. Section 10 however prohibits a person on board such a vessel from fishing unless that person is authorised by law. Section 8 cannot, even on a relatively generous interpretation, be such an authorisation by law, since it does not permit fishing by persons, but only permits entry by a vessel. If fishing is permitted, then it is by the voisinage arrangement, and that certainly is not law for the purpose of section 10 and still less for the purposes of Article 10.3 of the Constitution. It would of course have been possible to explicitly to provide in section 10 that Northern Ireland vessels could fish in accordance with arrangements specified in the Act, or a schedule thereto, or conceivably in a Statutory Instrument, or even perhaps and indirectly under an arrangement referred to in section 8. This was not done. Instead section 10 requires a law which permits fishing. The permission to enter under section 8 does not constitute a law permitting fishing as contemplated by section 10 of the Act.
In any event, there is in my view a more fundamental objection to the defendants’ case. Even if section 10 was cast in the very same terms as section 8, or if it were correct to read it together with section 8 as the State argues, it would not in my view be sufficient to comply with Article 10.3 of the Constitution. There are certain minimum requirements of promulgation, publicity, clarity and certainty before any provision can be said to be a law under the Constitution: see : King v Attorney General  I.R. 223. It is in my view an irreducible minimum of any legislation proffered as complying with a requirement of a constitutional provision such as Article 10.3 relating to the manner in which State property including natural resources may be regulated, leased or alienated, that the regulation leasing or alienation or other treatment of the property and natural resource, should be known to, or at least capable of being known to, the members of the Oireachtas making the law and to the persons affected by it. That includes persons in this case who seek to fish in Irish territorial waters pursuant to the arrangement, and interested members of the public who may wish to express views upon it. Where primary legislation in turn permits a delegate to make a more specific provision, it is apparent from the primary legislation who is to exercise the power, and the limits of the area of delegation so that at some level the range and scope of the provisions which may be made under the permitted power may be known in advance. Any such secondary legislation is in turn normally published and available. The obvious inadequacies of the voisinage arrangement in this regard, cannot be evaded simply by pointing to the terms of a section which refers to entry in accordance with a purpose provided for in “an arrangement”. Ultimately a criminal offence is committed if entry is effected (and, on the State argument, if fishing is carried out) other than in accordance with the arrangement. But all the difficulties already identified which mean that the arrangement is so vague and uncertain as to be incapable of enforcement if it were a private agreement, mean that it cannot be said that such fishing is “authorised by law” under section 10 or indeed regulated “by law” for the purposes of Article 10.3.
There are some simple yet fundamental objections. If the agreement is not contained in the 1965 correspondence, then it follows that it cannot be said who made the arrangement which in the words of section 8 is nevertheless “in force”. No member of the Oireachtas, either in 1959 or in 2006, had any way of knowing what might be permitted under any arrangement at either date or in what respect such an arrangement could be altered or, as was held here, develop. No Northern Ireland fisherman, or business contemplating fishing in the exclusive fishing area of this State, could know with clarity the terms that they would have to comply with to avoid committing an offence. Indeed, it appears that there is even now some uncertainty as to the area within which such fishing would be permitted, whether between 0 and 6 nautical miles or 0 and 12 nautical miles. No one who wished to ensure that any Northern Ireland vessel stayed within the terms of the permission could know, its terms so as to be able to police it. A Northern Ireland applicant who is refused permission on some ground would know that ground, but would not be in a position to argue that the decision made was not in accordance with the arrangement because the arrangement itself is unknown, uncertain and inherently and it is said necessarily, flexible. A person wishing to challenge a permission issued, would face the opposite difficulty. It appears that the respective licensing arrangements contemplated that if a vessel or person wished to fish under the voisinage arrangement, they could contact the appropriate Department either in Belfast or Dublin. In any such case, if permission was granted, the person receiving the permission would be entitled to believe that any such fishing was carried out with the permission of a civil servant representing a minister, and therefore a member of the Executive. But that only illustrates the problem: executive permission is, in constitutional terms, the antithesis of public legislation contemplated by Article 10.3 of the Constitution.
The plaintiffs’ objections to fishing by Northern Ireland vessels resolve themselves as matters of constitutional procedure. If this procedure is correctly followed, there is no reason why Northern Ireland vessels may not be permitted to fish for mussel seed in specified portions of the exclusive areas of Ireland’s territorial waters. As the trial judge observed, there is much to applaud in North-South cooperation in this area, and in indeed any area of fishing still capable of being regulated by national law. Indeed such cooperation should be easier now than in 1965: it is now clearly permissible by, and arguably an implementation of, the constitutional provisions which have been in place since 1999, which expressly contemplate cross-border cooperation in a number of areas. However, the plaintiffs’ claim here does not involve any consideration of the merits of the plaintiffs’ opposition to fishing by Northern Ireland vessels, its advisability at a general level, or indeed any consideration of whether success in these proceedings will be of material benefit to the plaintiffs. The plaintiffs’ case raises a net issue of legality upon which they are entitled to succeed. The voisinage agreement cannot be said to be law for the purposes of Article 10.3; yet it contains the specific provisions which permit the exploitation of a natural resource. Those provisions cannot become “law” for the purposes of Article 10.3 merely by a statutory reference to fishing in accordance with an arrangement, and still less by the attempted reading of section 10 in conjunction with section 8 as suggested by the State in this case. I would accordingly allow the appeal and make a declaration that fishing by Northern Ireland vessels for mussel seed within the territorial waters of the State is not permitted by law. I would hear the parties, if necessary, as to the precise terms of the declaration.
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