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Shell, the Corrib Gas Field and the Irish Constitution

Article based on letter sent to Irish papers, July 2005

The behaviour of the High Court in jailing the Rossport Five for insisting on their Constitutional rights is symptomatic of an utter disregard of the Constitution by the State as a whole.

The terms of the abominable "deal" the Government has cut with Shell/Statoil are: that the entire Corrib gas field has been handed over to these private companies, with no interest retained by the State, with all expenses accrued by these companies over the past 25 years paid by the State, and with no royalties payable to the State; that the gas refinery, the only land-based refinery in the world, will discharge toxins into air, sea and drinking water in an inhabited and environmentally sensitive region; that the high-pressure supply pipeline will pass beside houses; and that the entire Corrib operation will be based in Ayre, Scotland, and Shell/Statoil will neither be using any Irish labour or services, nor are doing so currently except where these are offered for free by the State.

But by far the the worst aspect of this "deal" is that it confirms the denial by all State organs, in principle and practice, of the Constitution's existence, and thus of Ireland as an independent nation.

Neither the licenses sought by private archaeological firms to excavate along the route of the M3 Motorway in Co. Meath, nor the Compulsory Acquisition Orders (CAO's) sought by Shell in Erris, Co. Mayo, were signed by the Ministers responsible, even though under the legislation in both cases a Minister's signature is required. This is because the 'Carltona Principle' or 'delegatus Doctrine' is used. This derives from a 1943 case taken by the company Carltona Ltd. against the British Department of Defence. Under the Principle, a civil servant is delegated ministerial powers, so that the respective Ministers can avoid legal liability, even though there is no Constitutional justification for this activity: the Carltona Principle is based on Common Law, and as such directly contravenes Article 15.2 of the Irish Constitution. Further, it is not even based on a precedent in an Irish court: it pertains to a case heard in a foreign jurisdiction, six years after the ratification of the Irish Constitution.

The reason the Carltona Principle is invoked, whether it be to grant CAO's to the NRA or to Shell, excavation licenses to private firms or landing licenses to foreign military aircraft, is to enable a Minister to avoid responsibility for a wilful breach of the Constitution.

An instance of this is former Environment Minister Martin Cullen's response to the Supreme Court's decision in 2003 that the Irish State has a constitutional duty to safeguard heritage. This decision confirmed existing National Monuments legislation as being in accord with the Constitution, and essentially made it sacrosanct. Martin Cullen responded by throwing out the National Monuments legislation and introducing the 2004 National Monuments (Amendment) Act, which enables the Environment Minister to order the destruction of any national monument or site for any reason. Because this Act was introduced in contempt of the Supreme Court decision, all actions carried out under its aegis, for example the construction of the M3 Motorway, are by definition illegal.

Likewise, CAO's directly contravene the Constitution's guarantee of an absolute right to private property, yet the Government has allowed Shell to issue CAO's against farmers in Erris, Co. Mayo, and the Minister for the Marine invokes the Carltona Principle to avoid personal responsibility for his breach of the Constitution. Let there be no doubt concerning this matter: the Government has granted State powers to a foreign corporation, one which has funded and equipped death squads in the Niger Delta. The High Court, by acquiescing in the Government's gross abuse of power, has become an abetter, pretending, as Government Ministers are wont to do, that Ireland is a "Common Law country", and that judges can simply stipulate what is the law. But the High Court is not entitled to issue injunctions against citizens who refuse to comply with CAO's. The Constitution does not recognize corporations or grant them legal rights, which the High Court by conducting its grotesque parody of due process sees fit to do, so that Irish citizens, who should be defended by the State against such global predators as Shell, can be persecuted for defending their rights.

The Government and the Courts have disgraced themselves in this matter. The Rossport Five must be freed immediately, with a State apology for what is less a miscarriage than an abortion of justice.

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