Rossport 5 should not have to spend another day or night in jail

by justiceseeker Thu Aug 25, 2005 14:12

The directors of Shell are the ones who should be in jail. And the politicians who collaborated with them.

by Darragh Thu Aug 25, 2005 16:15 darragh25 at hotmail dot com

Isn't the law that deals with Compulsory Purchase Orders (CPO's) and Compulsory Acquisition Orders (ACO's), grounded in article 43(2)(2) of the constitution, and doesn't it attach a qualification to the granting of orders that in delimiting the right of a citizen to have full authority over their property, such a reduction in the right of the citizen (which is what a CAO is), must be for the common good???

Have a look at what it says below:

Private Property

Article 43

1. 1° The State acknowledges that man, in virtue of his rational being, has the natural right, antecedent to positive law, to the private ownership of external goods.

2° The State accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath, and inherit property.

2. 1° The State recognises, however, that the exercise of the rights mentioned in the foregoing provisions of this Article ought, in civil society, to be regulated by the principles of social justice.

2° The State, accordingly, may as occasion requires delimit by law the exercise of the said rights with a view to reconciling their exercise with the exigencies of the common good.

Where I'm going with this is, if the deal that Shell has struck with the government, could be considered and proven in court to be more beneficial to Shell than to the Irish people, (it is hard to see how it can't be the case given the terms that Shell has agreed with the Irish government), then the common good has not been served as required by the constitution for the granting of a CPO or a CAO, and it must therefore be repugnant to the constitution, or unconstitutional.

In agreeing such generous terms with the Irish government, Shell may well have dug itself a very deep hole in terms of where it now finds itself serving its shareholders rather than the common good, with regard to the qualifiaction set out in article 43(2)(2) of the constitution.

If anyone has seen the film "Evelyn", they will see exactly where I am coming from, and realise how effective the Supreme Court appeal could be in having the Rossport 5 released, as the Constitution of Ireland is an extremely powerful tool, it is effectively an exocet missile in the hands of someone who has the right argument on their side.

The facts of the Rossport 5 go right to the heart of property ownership rights in Ireland, and the place for dealing with all of this is the Supreme Court on the basis of a constitutional challenge.

It seems to me that a referendum would have to be held and an ammendment would have to be inserted into our constitutioon before the right of a private company in Ireland to interfere with the property rights of a citizen, by way of a Compulsory Aquisition Order (CAO), can become constitutional.

I think its difficult to imagine a situation whereby the Supreme Court would not find that the CAO served on these five men was unconstitutional, therefore the fact that they obstructed the original CAO, and then breached the High Court Order, (which was to undertake to not obstruct the work being carried out under the CAO), would become a completely different issue, as the original CAO would be completely defective as it would be unconstitutional. Were this to happen, the injunction would collapse immediately and the five men would walk free, and Shell would regret the day it ever went to the High Court to get that injunction!!!.

Does anyone else have any thoughts on this??? Please e-mail me if you any opinions one way or the other...

by Karen Thu Aug 25, 2005 17:02

This makes sense to me, why are people calling for Shell to "drop" the injunction??? Why not use a higher court to undermine it, are the family of the Rossport 5 aware of this possibility of getting the five men released on the above basis?

by Síog Thu Aug 25, 2005 17:18

Who will volunteer to fund such case? Going to the courts cost a fortune which these mayo men and families do not have.

by S Sceptic Thu Aug 25, 2005 18:07

A proper lawyer would have the five men out tomorrow.

I don't know what legal advice they are getting at the moment but it is useless.

The original imprisonment was based on flouted planning permission actions by shell.

Shell's overall planning permission is illegal under European law.

Get yourselves a proper lawyer who is not afraid of what future work he may or may not get.

Garret Sheehan is one who would have them out tomorrow.

Best

by Justice calls Thu Aug 25, 2005 18:17

I agree wholeheartedly. And if you can get Paddy McEntee on the case, even better.

by Al Thu Aug 25, 2005 18:22

They could be out tomorrow but not for the reasons mentioned above.

There are 2 possibilities.

1, They are in custody for refusing to restrain from interfering with the shell works. Now if that is the case then they must make such a pledge and will be released. The key here is that if Shell are acting illegaly then it must be challenged in the courts, not on the land by the men.

2. They are in custody for contempt of court. In order to be released they must apologise for disresepcting the court. This is seperate from the actions for or against Shell.

2 is actually the correct one because that is why they are in custody. I realise that they are standing up for their rights and personally I agree with them however there comes a time when a strategic withdrawal is better than standing your ground.

In order to be allowed protect your land the action against your land must be illegal. Until the order is challenged and found illegal in a court of law it remains legal and therefore the mens right to protect the land does not exist.

Now, for those that will simple pick and attack my posts please remember A, Im merely pointing out facts, not my personal opinions and B, Im 100% with the men, its their land and they are free to do what they want with it. However having said that, I see people posting for these men yet these same people post defending graffiti and spitting on land owners. You cant have both, either you agree with and respect a persons ownership rights or you dont. I do.

by Darragh Thu Aug 25, 2005 18:34 darragh25 at hotmail dot com

Seog,

I wouldn't knock this approach on the assumption that it would cost a fortune!

Firstly the Rossport 5 have nationwide support particularly at grassroots level in the community, I think if the message went out that they were taking a constitutional challenge to the Supreme Court against the (unpopular) Government, there must be a huge number of people would be only too happy to help fund it, because there are so many people who are sick of this government and would like to see them getting a bloody nose in the Supreme Court.

Secondly, the five men are represented before the High Court, and continue to be. When you're dealing with justice at this level, relatively speaking, the Supreme Court is not an expensive place to visit.

I've no doubt that many Irish people would support this kind of action, I'd personally make a three digit donation to such a challenge, and I'm sure many more would.

The chances are that the government wouldn't go down this road and Shell would be told by the governent to collapse the injunction like yesterday, if the government were served with papers for proceedings before the Supreme Court. If the case was successful, there would be no going back for Shell. The right of the five men to refuse Shell access to their land would have been reinforced by the highest court in the land. The outcome in the event of success would be that there would be no pipeline, unless the men gave their consents.

The first person to take a Supreme Court challenge against the state, on the basis that Irish legislation was repugnant to the constitution, was a painter (he also worked part-time singing ballands in his local pub), who was unemployed when his council filed papers on the matter with the Supreme Court. He got connected with some people who were qualified to practice in the Supreme Court and who believed in his cause and his small circle of friends supported him financially. He had nowhere near the amount of support that the Rossport Five have today, but he won because his cause was worth supporting.

Supreme Court challenges are brought on the basis of a need to access justice at the highest possible level,and are brought to remedy state agression against the most important and fundamental rights of the citizen. (Like in the recent case of the state taking pensions from the elderly in nursing homes, and the case in the 1950's, which later came to be the story for the film "Evelyn", when the state legislated that a child had to be put into an orphanage if both parents were not available to bring the child up, or if one of the parent did not consent to the other rearing a child on his/her own).

The costs on these occasions are always an afterthought. Dev didn't give us BUNREACHT NA h'EIREANN, so that the people who needed access to it most couldn't afford to use it! It's people like the Rossport Five that article 40 of the constitution was written for, and I think that they should seriously think about taking out the "Exocet's" to get themselves out of Cloverhill!

by Darragh Thu Aug 25, 2005 19:02 darragh25 at hotmail dot com

Al,

I agree with you. Rightly or wrongly, Justice Finnegan has imprisoned the five men because in his opinion they have disrespected the court by showing contempt for an order made by by the court.

This is entirely different matter from the legality of the CAO obtained by Shell to gain access to the land owned by the five men, and the subsequent legality of the injunction obtained in the High Court that was meant to reinforce the CAO.

It's easier to see it this way when you don't have a multinational rottweiler trying to force a pipeline through your back garden.

It's hard to seperate the two arguments because on a moral level they are one and the same, they need to prove the original CAO was unconstitutional as distinct from illegal, everyone is saying the CAO was illegal, I don't think that the CAO was illegal because from what I can see, it was executed pursuant to the legislation that provides for a CAO to be issued to Shell. There is no point in the rest of the country saying that the CAO is illegal, unless it was not executed according to statute or unless it was defective in some other way (not served within the necessary timeframe, etc). What they need is for the only court in the land that is higher than the High Court to say that it is unconstitutional. Until then, the legislation stays on the statute book, CAO's remain legal, and the five men will probably remain in jail.

by Síog Thu Aug 25, 2005 22:22

Firstly, I never intended to knock the idea of bringing the legality of the injunction to the courts. While the Rossport 5 do have their own counsel, the judge refuses to hear anything from them while they are in contempt of court. Which would mean a totally new case with new people bringing in a new legal team. Dev's heart may have been in the right place, but money is needed. While those of us not directly involved may say the money will come from somewhere, say that to the men who have the threat of their homes being taken from them for potential fines, never mind legal fees.

Another thing, there is no confusion in the minds of the Shell to Sea campaign between the injunction and the COA. The men cannot purge because the injunction prevents anyone from ever obstructing Shell in any way at any time. Would Shell consider it "obstruction" to speak publicly against a project they are involved in? I believe they would.

by Al Thu Aug 25, 2005 22:58

Im sorry but the above post is a complete load of bollox. I hope to god your not a solicitor or your clients better not be used to freedom.

A, They are in contempt, they cannot start a completely new legal fight.

B, They must purge contempt of court, nothing to do with the Shell works. They must apologise to the court for failing to recognise the courts.

C, What Shell consider breaching has no bearing, its what the court decides is breaching.

D, freedom of speech. Nuff said.

God, where do all these amateur lawyers come from? If you dont know the law then shut up, making incorrect comments wont help.

by soundmigration Fri Aug 26, 2005 01:25

its really quite clear that the law is fucked up in this case. just because something 'is the law' doesnt mean that its moral or ethically correct or socially justifiable.

condoms used to be illegal...fucking stupid right!!!
unfortunately this state like so many other, and every one of its institution be it the crinimal justice system, 'social welfare' the government itself, the police force are by thier very nature continually lagging in making systemic changes until they are forced, by the people, to do so

this usually is the case around election times when all the spin is put out to say...,vote for me i really care

well sorry that aint good enough...we have a government and police force with the mantra of decomission now (which incidently id like to see myself as well) but as soon as a few sincere and genuine folks get into shannon airport and give a helpful act of decommisioning themselves, they are arrested and attempts made to crinimalise there action....orwell springs to mine

double think doublethink everywhere i see

so personally i think the judge was a corporate wag, the justice system is not base upon neutral values of equality and democracy, but there to serve those it does so well. well fuck em and fuck it. no doubt there will bew a post about the break dowwn of rule of law and 'anarchy on the streets' bring it on
all the laws in the country didnt stop those in authority or the police stop the raping of youngster in instituions and schools the past 50 years...didnt stop haughey lining his pockets, or the guards planting bombs in donegal, or stitching up folks for murder, or FFcouncillors getting roads re routed through their mates land for a few quid, or the CIA carrying innocent folks through shannon to be farmed out to egypt and saudi arabia for totture techiques

wake the fuck up and smell the horseshit we are being fed. authority gravitates to the level of ensuru=ing its own sustainability a any cost. human social econoic and environmental

by Fred Fri Aug 26, 2005 08:51

I dont understand why you think the law is fucked up in this case. Al is correct and it appears totally logical and fair to me.

by Lexica Fri Aug 26, 2005 10:01

Legal philosophers have been exercised on the principles under discussion here for centuries. In Hart's 'The Concept of Law' (1963?) the authority of the German legal system during the Third Reich is discussed. Abhorrent laws were brought into force following the same entirely legitimate process as was used for any other sort of law. The effect was that, in Germany, a direct challenge to these oppressive laws against Jewish people or a refusal to cooperate with them was technically 'illegal' in exactly the same sense that Al describes above, and many a German officer, soldier and citizen could argue entirely logically in their defence at Nuremberg that they were only obeying the law. In the German case, what is striking is that it appears that most people did approve of the law. A fairly general consensus among legal philosophers and practitioners alike is that for any legal system to be valid it must not incorporate many, or any, laws that the majority of people do not consent to or approve of. Not many of us like having to pay tax, but we consent to the law because we believe it is in our shared interests to do so. However, at what point does a legal system begin to lose its validity? Most legal systems will include some unjust laws either by design or by unanticipated effect but because, by and large, the system is fair we put up with occasional anomalies unless or until they become too onerous. The integrity of the system requires it, again for everyones benefit because a la carte law would result in total breakdown. One philosopher has described the situation as that of contract between citizens and government. The government are there by the consent of the people and when they start to renege on or abuse that consent the legal system breaks down. Where the Rossport 5 are concerned, a large crack has appeard in the consensus between government and people. There is no question that the effect of the contempt ruling is disproportionately to punish the men in the circumstances. Reportedly, the majority of Irish citizens believe that to be the case. We now have a situation, in theory at least, where they could end up in prison for longer than the average rapist because they did not want a dangerous pipeline forced through their family land and close to their homes. The government needs to stand well back at this point and ask itself how long it can go on relying on the consent of the people. All over Ireland it is beginning to break down in comparable circumstances -cracks are appearing everywhere. The situation can go two ways from here: the government can toughen its stance which will almost certainly result in a further breakdown in the consensus and all that goes with it or it can wake up to the situation and realise that, in the long term, doing the right thing is in everyone's best interest. The Rossport 5 are acting entirely according to their consciences and have done so in an open and honest way and for very concrete reasons. They have challenged bad law. Ireland needs thousands more courageous people like them and a lot people are waking up to the necessity to take similar stances in their own localities. The state is making itself into the enemy of the very people who give it its validity and it has to be stopped - urgently. Time to put the government back into its rightful box?

by Darragh Fri Aug 26, 2005 11:33 darragh25 at hotmail dot com

Firstly, the five men do not have to purge their contempt before the High Court in order to take an constitutional challenge to the Supreme Court.

Seog, I think you are missing the point here, I'm not saying the men should try to speak to Justice Finnegan, I'm saying they should be prepared to go over the man's head. Furthermore, they wouldn't need a new legal team, they would only have to instruct senior council. Your statement about an expectation that the five men purging their contempt does not add up, nobody is asking them to.

The idea of a constitutional challenge, and who would be prepared to financially support it should at least be discussed and considered and thrown out there by the campaign to test the degree of support that is out there for an action like this.

I can't understand why this is not up there on the list of actions that are going to be taken to put this situation right, alongside pickets, marches, meetings, etc. It's obvious that it is the most effective tool available to the campaign to have the men released and their rights to unfettered ownership of their lands restored.

If they are brave enough to go to Cloverhill and stand up to Shell, the government and a High Court judge, then I think they are up to taking a constitutional challenge.

by Síog Fri Aug 26, 2005 12:24

God Almighty to you too Al. If you really want to make a comment about a comment, please do the courtesy of reading it first.

I stated that the men could not take up a new fight.

I said it was with the courts - which is why Shell is requested to lift the injunction

etc etc

by Darragh Fri Aug 26, 2005 12:53 darragh25 at hotmail dot com

Siog,

I'm afraid you are not correct when you say that the men have to purge their contempt before the High Couty to take further legal action to have them released from Cloverhill. They should close the door on their experiences with the High Court & Justice Finnegan and move on from there.

There is no point in asking a party who obtained an injunction to collapse it. Shell are as determined to see this one through and sustain their injunction against the five, as the five men are determined to not purge their contempt at the moment and not undertake to interfere with the activities of Shell in Mayo at the moment, which is why this stand-off has continued for the last 59 days. If Shell were going to collapse the injunction, they would have done it by now. This "please Shell, will you collapse the injunction?", is not going to work.

Shell's reputation is so bad, it simply doesn't care about what the shelltosea campaign are saying in the media, or how we view Shell in a negative image at the moment. Shell doesn't care that they are responsible for 9 people executed in Nigeria, and they give even less of a shit that the Rossport Five are in prison. There is this notion across Ireland at the moment that Shell will someday soon bow to public pressure and the five men will walk free. I think it's time people realised after the men have spent almost 60 days in prison that it's not going to happen, Shell are not going to collapse this injunction to enable the five men to be released.

It's time for the men to pick up the constitutional tools that the founding fathers of our nation gave them, and start the process of getting themselves out of prison, instead of hoping for any goodwill from Shell and Andy Pyle.

by Darragh Fri Aug 26, 2005 13:13 darragh25 at hotmail dot com

Just for the avoidance of any doubt, taken from the Irish Courts Service website, speaks for itself...

http://www.courts.ie/courts.ie/Library3.nsf/6556fea313d95d3180256a990052c571/2d2779d5d7a9feab80256d8700504f7b?OpenDocument

by Al Fri Aug 26, 2005 14:28

I believe Darragh is refering to this particular point: "The Supreme Court has the power to hear appeals from all decisions of the High Court" - This doesnt apply Darragh because we are dealing with contempt of court.
Contempt of court is with the judge himself and cannot be appealed. If they actually recieved a sentence they could appeal it, they can appeal the injunction as well but not before purging their contempt. Even the original piece of this issue agreed with me " the President of the High Court refused to accept several applications from Counsel for the imprisoned men ruling that, so long as they are in contempt of court, no application from them will be accepted"

Like I said, you cannot simple decide what laws you are going to obey and which you arent. They must purge contempt, take the high court decision and then appeal it. If the supreme court agrees with them then the injunction is null and void.

Lex,
while I agree more or less with what your saying you have neglected one important factor. The government cannot change a judges decision. They are not permitted to interfere with court cases. Thats why broughan and the other TD's are unable to offer any real support.

by agus eile Fri Aug 26, 2005 14:55

Do you support the Rossport 5 Garda?

by AL Fri Aug 26, 2005 15:08

I certainly do, 100% behind them. I believe every person has the right to their land. I dont believe in CPO's, never have, never will. Its their land, what they do with it is their choice.

My posts above are showing how they can get out of the current situation as apposed to much of the bad and plain wrong legal opinions.

Also like to know why everyone makes a big deal out of my occupation. It has no relevence to the subject. My opinions are as valid regardless of occupation.

by Boycotter Fri Aug 26, 2005 15:11

"I certainly do, 100% behind them."

You are urging them to purge their contempt. So that doesn't make your support 100% - now does it?

by Al Fri Aug 26, 2005 15:14

Its called being realistic.

In order to fight they must first purge contempt. Otherwise they will spend their lives in jail for a minor matter. If they purge their contempt they can then go further and higher and win the case.

Which would you prefer?

by Boycotter Fri Aug 26, 2005 15:19

But you don't support them 100% if you don't respect their choices - FACT!
Withdraw your comment.

by Darragh Fri Aug 26, 2005 15:26 darragh25@hotmail.com

Hi All,

Where I saw hope was the possibiity of the five men bringing a completely new case straight to the Supreme Court, on the basis of the legislation that was used by Shell to obtain the CAO, is repugnant to the constitution.

If they could get this ruling, the injunction must collapse around it. A situation couldn't exist where the High Court could sustain an injunction that says that the five men must obey a law that is repugnant to the constitution of Ireland.

I've already said that the five men should close the door on their experiences before the HIgh Court and Justice Finnegan and chalk it up to experience.

The only legal option that is actually open to them now is to take a new case to the Supreme Court to test the constitutionality of the law dealing with the issuing of the CAO, I think it is the Public Assistance (Acquisition of Land) Act, 1934, on the basis that this act contravenes their rights under section 26, section 43, and in particular section 43(2)(2) of the constitution of Ireland.

I have to point out again this would not an appeal of any matters before the High Court, as you point out Al, the five men have in fact no decision from the High Court to appeal to the Supreme Court, but this does not prohibit them from walking straight into the Supreme Court to test legislation for being potentially unconstitutional and does not involve the issue of comtempt.

by Al Fri Aug 26, 2005 15:27

Has Indimedia changed to the anti-al website?

Why is offering sound advice mean I dont support them? Their solicitors are giving the exact same advice, does that mean they arent fighting for them?

Grow up and have a nice look at reality. They arent going to win by sitting in jail, in fact they are losing the fight as a result. the sooner they purge contempt the sooner they can get their appeals lodged and hopefully get the whole thing overturned.

Your way they spend the next couple of months or years in jail and Shell keeps going. Talk about shooting yourself in the foot.

by Boycotter Fri Aug 26, 2005 15:31

Do you not understand English? I do know you have a problem with writing it. I didn't say you didn't support them. I said you didn't support them 100% as YOU claimed. If you did you would respect their wishes. As to the anti-al site, I thought you didn't do paranoia. Lying about that as well?

by iosaf - "wow - hair & nails flying" Fri Aug 26, 2005 15:35

* 5 men are in jail, and they're not young and they deserve complete support because it appears that was the only course of action open to them. It is not really Al, or my or anyone other than their loved ones and immediate relatives or counsel position to tell them to purge now.

* it is doubtful the campaign would have registered as much awareness if they had not gone to jail. For that to be worthwhile, then not only is the men's opinion on their land-use important, but the wider communities thoughts on the resources of the state and the relationship between the state, both legislature and judiciary and those non national entities who have been contracted to assist the Irish people exploit their national resources.

****************************************************
as for the trolling, Al's job is not always relevant to his comments, but in some cases it appears to be. its a very cheap shot to wheel out anti-garda sentiment, however that much said, this site indymedia in every country it is found is one of the few places where such sentiment may safely be voiced.
We have worked long at great expense and in the face of very formidable odds and opposition to preserve that right. I can not nor will not condemn any indymedia contributor for "anti-police" sentiment.
It is a very traditional and well founded aspect of anarchist communities, and is often based on personal experiences of injustice. My personal job, or family's history might be relevant to many threads on this local imc site, but I have never chosen to publicise them. Any contributor's contribution ought stand on its own merits. And all contributors bear a responsibility to create together the conditions for mature and civilised debate. I'm an anarchosyndicalist, I've been attacked by police arbitrarily and I've sat down in discussion with police in different states and at different times, for differing reasons of "public order" or local politics.
I think this whole thing can be cleared up, if everyone is a bit more sensitive to the purpose of this site, and a bit more conscious of the power a quickly typed insult on this page might have to spoil someone else's day. & to remind all contributors "insulted" or "insulting" that at the end of the day, I for one will take the side of the weaker party. So if someone has an "anti-garda" article to write, please write it. If not leave the man alone, he's not the worst, and has a lot to learn about his wider society which i think he's genuine about.

by iosaf Fri Aug 26, 2005 15:55

(in response to hidden comment of abuse)
But a lot of us built these sites in ireland and globally from anarcho-syndicalism. It was us who launched imc in London and Seattle and one of our spiritual hearts Chiapas.
But we always wanted a cross section of the community here. In ireland that means the left, the centre and all who want to play a part in social progress. And they are so divided aren't they? The prinicples of anarcho-syndicalism - concensus, dialogue, open debate, solidarity with workers, prisoners and oppressed, non heirarchy, and direct action underscore this site.

So you oink are on a site of wankers. Do you feel at home? Now the Rossport 5 want our solidarity.
and they are prisoners. & they took direct action.
Thats wanky enough for me. I'd like it if you used your energy to post a cop story. We haven't had one in a while. & we can't forget our roots can we?

by Darragh Fri Aug 26, 2005 15:57 darragh25 at hotmail dot com

Does anyone have any thoughts on the liklihood of sucess or failure with a Supreme Court case testing the constitutionality of the legislation used to acquire the CAO. Can anyone tell me if the CAO was obtained in this case using the Public Assistance (Acquisition of Land) Act, 1934, or was is some other piece of legislation?

I think this act was ammended since 1934 so that a private company can obtain a CAO, does anyone know anything about this?

by Al Fri Aug 26, 2005 16:37

Im not too sure about the CAO for private companies. As far as I am aware this has been done in a round sort of way, IE the land is bought by the government not Shell. I could be wrong on that though.

I dont really think going against the CAO on constitution grounds will work. People forget the a key part of the contitution is always "Save by lawful authority". the constitution isnt the be all and end all that its taken for.

I think they have a better case going on health and safety issues and the manner in which the CAO was obtained.

The 5 claim that there biggest concern is safety, if they have legitimate worries then thats the area to concentrate on.

Of course they wont be allowed fight it unless they purge their contempt. So its either stand your ground and lose or retreat and fight again.

by Darragh Fri Aug 26, 2005 17:07 darragh25 at hotmail dot com

I dunno, the key qualification in the constitution with regard to state interference in the property rights of the citizen is that any such interference must be justified by an improvement in the "common good". In this particular case, it is very difficult indeed to see where this improvement occurs.

The Supreme Court in the event of a being petitioned to test the constitutionality of legislation, will look at the degree of balance between the alleged interference that has occured on the part of the plaintiff, and the corresponding improvement that has been cited by the defendant that necessitated that interference.

It's then up to the Supreme Court to establish if interference by the state in the rights of the citizen to absolute control over their private property, by granting a CAO to a private company who are by far the main beneficaries of this project, was justified in the name of the common good? In this particular case, the argument would boil down to the common good, and how has the common good being served by Shell being granted this CAO, which effectively was the government permitting Shell to take control of the private property of these five men?

If there is no common good, or not enough improvement in the common good to justify the taking of private property from the citizen by the state, then the legislation which deals with the issuing of CAO's must be unconstitutional.

This is where the solution to this whole problem lies, I'll put my money on it...

by Al Fri Aug 26, 2005 17:30

But this has been looked at before now Darragh. This has been argued and battled mainy times previously. The supreme court wont look at the common good overall because case law has already been stated.

It could be argued as it is a private company that has the land and the question asked how that is for the common good however thats why I think its not technically Shell that have aquired the land, such a legal action may have already been considered prior to the CAO being issued.

Its possible your right and the Supreme would find in favour of the men however in my opinion it would not as CAo's have already been found legal through case law. Thats why i think health and safety is a safer bet. Of course all options will be considered and Im sure this case will be going for a few years before a conclusiver result for either side will be reached.

by Darragh Fri Aug 26, 2005 17:58 darragh25 at hotmail dot com

Al, as far as I can see, the only caselaw that exists for these type of challenges that relate to section 40 of the constitution are where the construction has been typically national roads, or also construction over or on top of national monuments. There is a totally different argument concerning the common good in these cases... You could argue that national roads that will belong to the state are in the common good, or preservation of national monuments that will remain in the ownership of the state are in the common good, or building a dual carraigeway on top of a national monument is in the common good, but giving a gas field to a private company and allowing them to take land off citizens to extract the gas and sell it back to us??? I dunno, I'm scratching my head here trying to see the common good in that one!

by Lexica Fri Aug 26, 2005 18:35

When I talked about persuading government to undo this situation , I didnt mean they could interfere with judicial proceedings directly. What I meant was they are the ones who are responsible for this sorry mess in the first place. The injunction against the men is only one aspect of a combined administrative and legal strategy for seeing off opposition to Shell. Any protest or appeal to government would obviously have to be conducted (as it already is) through political and administrative channels or by direct action. As others have said there may be a solid legal case that could be made against Shell and/or government on grounds other than those covered by the injunction.

by Darragh Fri Aug 26, 2005 22:51 darragh25 at hotmail dot com

All I'm hearing on this site now about this situation is "they won't purge their contempt", "Shell are bastards and so are the government", blah blah blah and the same old recycled opinions at this stage.

OK, I know this reflects how angry people feel about the situation, but there comes a time when the general whinging, moaning and criticism of the offending parties here should be put to the side (this doesn't mean you can't feel angry at the same time!), and common sense and some smart thinking should take it's place.

Yes, protesting, petitioning, marching, pickets, meetings, these all have a role to play, but I'm starting to wonder why we are not seeing some seriously creative legal work from the mens legal team???

Contrary to what has been said here by some,

(1) It doesn't cost a fortune to take a case to the Supreme Court.

(2) It doesn't take years to get a result.

As a protestor associated with the shelltosea campaign, I'm all for action on the ground, however if there is a path that the men can take to bring about their release without purging their contempt, as someone who supports them, I expect them to use it...

I can't understand why this solution is not getting a mention, except here on this thread by me...

by Al Fri Aug 26, 2005 23:22

Darragh,
You seem to have a pretty good head on your shoulders so I cannot understand why you insist on believing theres an alternative to purging. there isnt.

The supreme court cannot hear an appeal against contempt of court and until they purge the case cannot proceed. thats the reality. No alternatives, cash, man power, the constitution, nothing can change the facts.

If there was an alternative dont you think their legal team or the TD's that are involved would have done so by now?

by Ed - Sheltosea Sat Aug 27, 2005 09:15

Darragh's latest comment (9.51 pm, 26th Aug.)
says it all

by curious Sat Aug 27, 2005 15:41

Contempt may be deemed purged by incarceration. numerous precendents.
put in simple terms - you dont recognise the court, the judge, the charge, the issue, the judge threatens you with jail, "if you don't go to jail you can't purge" you go to jail = you purge a bit, you come back to court, "have you had enough? you say no, you're still in contempt. But there comes a stage when you've been in jail longer than many criminals...
Did the bin tax prisoners purge themselves in court?
or was their prison term considered to have purged them in the eyes of the court?

Any "legal experts" & that means lawyers, academics (we do have some irish law academics online) please not "the garda", have information on the longest prison terms served for contempt in Ireland?

by Shipsea Sat Aug 27, 2005 16:38

Shell have a forum on which, theoretically, you can post comments:

http://www.shell.com/home/tellshell-en/html/iwgen/tell_shell/app_frame_tellshell.html

I registered yesterday and was told I would receive an email confirming the registration after which I would be able to post comments to the site. Still waiting for that email, though...

by Darragh Sat Aug 27, 2005 16:40 darragh25 at hotmail dot com

Al,

As I've said before above several times, the course of action that I'm talking out here, taking a constitutional challenge to the Supreme Court to have the legislation that the CAO was issued under tested for constitutionality, , IT'S NOT AN APPEAL OR ANYTHING TO DO WITH AN APPEAL, IT'S GOT NOTHING TO DO WITH CONTEMPT OF COURT, IT WOULD BE A BRAND NEW CASE, BEFORE A BRAND NEW COURT, WITH BRAND NEW JUDGES!!!

This is my whole point, I'm sick of hearing the same defeatist argument about the fact that the men are in contempt of court and they can't do this and they can't do that. Yes they are in contempt of the High Court, but this does not disqualify them from taking a brand new Supreme Court case, to test the constitutionality of the legislation that Shell went to the High Court to get reinforced.

I've said twice already that the men need to close the door on their experiences in the High Court, chalk it up to experience and move on.

What I'm trying to get across, is that Shell originally used a piece of legislation called The Public Assistance (Acquisition of Land) Act, 1934, to get permission to put this pipe on the mens land. When the men obstructed this, Shell went to the High Court to get the provisions of this legislation reinforced with an injunction. The men disobeyed the injunction, and that leds up to today when they are still in prison.

Now, my point again, (at the risk of repeating myself!!!) is that the men have consitiutional rights regarding private property. (Let's put the 1934 legislation aside for a minute).

The government have a right under the constitution to interfere with these rights regarding private property, only if a certain qualification which is set out in article 43(2)(2) of the constitution is met.

If the government passes laws that allows themselves or a body corporate to interfere with the right to the citizen to unfettered and absolute control over their own property, without first meeting the qualifiaction set out in article 43(2)(2) of the constitution, which is that such interference muct be in the comon good, then that legislation, is repugnant to the constitution. To have the faulty legislation deemed unconstitutional requires a trip to the Supreme Court. You can apply to the Supreme Court to have a case heard if you are in contempt of the High Court, or any other court.

How is it going to look if the men went to the Supreme Court taking a constitutional case against the government, and if the Supreme Court said that the original legislation that Shell used to obtain their CAO was repugnant to the constitution? Are you telling me that Justice Finnegan is going to say, "Look lads, I granted the injunction to strengthen the CAO legislation, which the Supreme Court has just found to be unconstitutional so my injunction was therefore unconstitutional, but you are still in contempt of my court so hard luck!".???

No way, the mens stance would be proven to be correct all along, that the law as it was applied to them was defective and unconstitutional, that the injunction that was then used to reinforce the law, was even more defective and unconstitutional.

It wouldn't even go to this, because the Supreme Court is the one place Shell or the government simply won't go. If Shell or the government thought the Supreme Court was the next forum for getting this matter sorted out, the men would be out of Cloverhill by next weekend!

Folks, please stop telling me that the five men cannot take any further action to get themselves released because they are in contempt of the High Court, because this is simply not true. They cannot take any further action in the High Court, that is true, unless they purge their contempt, but there is another way (and a more effective way!) that they can get themselves released from Cloverhill, they can go to the Supreme Court with the constitution in their hand's, and there is nothing that Justice Finnegan, Shell, or Minister Dempsey can do about it...

I don't know who is giving the five men legal advice but I seriously question whether they have ever been down this particular road before. It looks to me at the moment like Shell are running rings around them...

by Al Sat Aug 27, 2005 17:17

OK fine dont listen to me Darragh but will you listen to the courts themselves?

"The High Court has full jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal. Its jurisdiction also extends to the question of the validity of any law having regard to the provisions of the Constitution" (Courts website)

"Mr Justice Finnegan, President of the High Court, had made it clear that the objectors must purge their contempt before he can hear any further applications on their behalf" (http://archives.tcm.ie/westernpeople/2005/07/27/story26487.asp)

The supreme court:

"The Supreme Court is the court of final appeal in the State"

"The Supreme Court has the power to hear appeals from all decisions of the High Court"

"The Constitution provides that the President of Ireland may refer to the Supreme Court any Bill (or any provision(s) of a Bill) for adjudication as to whether it is repugnant to the Constitution" (all from the courts website)

Darragh,
You cannot simple walk into the supreme court. theres a chain to it. Only the president can go direct to the Supreme court. Everyone else goes to the high court and then can appeal the high court decision in the supreme court. On Monday morning you go to the court office and lodge a request for the supreme court. See how far you get.

However the reality is they are waiting until October for the full hearing before they will even entertain the idea of purging. Thats why their legal team (thats fully trained solicitors and barristers) have not and cannot lodge an appeal into the supreme court.

by Darragh Sat Aug 27, 2005 19:18 darragh25 at hotmail dot com

Al,

You are completely wrong in what you say about there being a chain into the Supreme Court, any person is quite entitled as a citizen to ask the Supreme Court to test the constitutionality of any piece of legislation, whether you are in prison or at liberty, whether you are in contempt of the High Court or not, and this has been done numerous times before. The provision for referral by the president that you mention above is only one route which is probably a better known route, but it is by no means the only one.

This provision you mention allows the President to refer a bill to the Supreme Court after conferring with the Council of State BEFORE he or she decides to sign it into the statute book. At that stage, the document is still a bill as distinct from a legislative act.

Just because you look at the cases on the courts service website and almost everything there is under appeal from the High Court or the Court of Criminal Appeal, this is irrelevant, and you might note that these matters rarely relate to constitutional arguments but rather to points of law.

Of course the jurisdiction of the High Court extends to the question of the validity of any law having regard to the provisions of the Constitution, it has to have this jurisdiction to deal with a matter that is being appealed to the High Court.

For example, Patrica Mc Kenna took a case against the government to the Supreme Court in 1995, alleging that the governments decision to spend public money exclusively promoting a "yes" decision in the divorce referendum of that year was unconstitutional. The Supreme Court agreed with her and since then the government cannot spend taxpayers money promoting their own particular opinions in relation to what answer they want us to give them in a referendum.

There are a few examples (not many) of ctizens taking a case to the Supreme Court directly, and before you post back telling me that Patrica Mc Kenna appealed this case from the High Court, she didn't. She did take a similar case to the High Court in 1992 and was unsucessful, but her case before the Supreme Court in 1995 was not an appeal of her unsucessful case before the High Court case in 1992.

The path I outlined is rarely used, I'll grant you that, but you do not have to be appealing a case from the High Court to take a case to the Supreme Court, not in relation to an argument relating to constitutionality of an act of law. Any citizen can take a case to the Supreme Court alleging that an act of law infringes upon their rights under the constitution. You need a certain amount of money to do it, which is probably why people are not beating down the door to challenge legislation, and it has not been done very often before, but it has happened in the past on several occasions. The Mc Kenna case is one instance of it happening, there are more, the courts service website only holds cases going back to 2001, I'll have to do more research but I'll get back to you with the other cases...

by Al Sat Aug 27, 2005 21:09

She had already been to and failed at the high court she did not go direct to the supreme court. However these 5 men are still in the high court so your wrong no matter what way you look at it.

The courts website along with my own legal documents states what I have said above. Please provide proof of your claims.

You are not in the legal system, you are not qualified in law and you have not provided any proof of your claims.

If you can show me proof of a person going direct to the supreme court without having attempted any other court then I will accept what you say. Why, oh why would 5 men be sitting in prison if what your saying is correct? Are you arrogant enough to believe that you know more than their combined legal teams?

In fact please advise why anything you say should be believed.

For my part, Im off to the pub.

by Shipsea Sun Aug 28, 2005 10:50

I cant help noticing what seem to be crossed wires here, Al. Darragh, I think, is advocating and entirely SEPARATE legal challenge. He is not talking about an appeal of the current legal impasse but about an attack on the main issue from a separate perspective entirely. He has set out what he thinks are a number of optimistic grounds for mounting such a challenge and which would be open to the men precisely because it would not be related to their current legal situation. They are not compromised for a separate challenge. If successful, the outcome could in turn have a bearing on the actions of Shell in taking out an injunction in the first place and Shell's case would begin to fall apart.

by Al Sun Aug 28, 2005 15:20

I appeciate that Ship and I dont disagree however Im merely pointing out that you cannot go direct to the supreme court without first attempting the high court.

the fact that a decision has not been reached in the high court bars the application to the supreme and until they have purged Justice Finnegan wont hear any applications from the men. He is not simple a judge, he is the president of the high court.

Theres only 2 ways to deal with this. A, purge contempt or B, wait until a decision in October which is when the full hearing is scheduled. However its possible they would still have to purge their contempt even after that hearing.

Think about it for a second, if people could go direct to the supreme court how long would the list be? You would have every tom dick and harry walking in with trumped up cases. Add to that every criminal wanting to appeal a case to the supreme court because its their 'constitutional right'. The system is overloaded as it is. It would grond to a halt if that happened.

I think myself and Darragh will just have to agree to disagree and see what happens.

by RUMPOLE Sun Aug 28, 2005 21:22

Besides good legal advice what is required here is common sense.

The Supreme Court is not a court of first instance except where a bill is referred to it by the President of Ireland to test the consitutionality of the draft legislation. Witness the testing and striking down of the Health (Amendment) (No. 2) Bill, 2004.

In relation to the present impasse the Supreme Court must surely be available as a court of appeal from the present order of the High Court ? Is it not that High Court order that retains these men in custody ?

The next problem is to establish the substance of the grounds of appeal. For that they will really need the advice of well experienced senior counsel as I think that they will have their work cut out to make the appeal.

Alternatively, if there were procedural defects in the way that the men were treated by the High Court resulting in their imprisonment that could be challenged by way of the Judicial Review procedure which is available in the High Court.

Given what is going on here - or not going on to be more precise - could these gentlemen not be given heavy duty legal advice as soon as is possible please if it will help to eliminate the undoubted distress that must be resulting for them and their families ?

by Al Mon Aug 29, 2005 01:07

The most recent info about them stated that they were happy enough inside and had no intention of leaving until October which is when the full hearing is scheduled.

Now personally I dont see how 5 people not accustomed to prison could be happy in there especially considering that it is more a remand prison than a sentence one however at the end of the day its their decision.

Im sure their legal teams are looking at every angle but they must go with what the men want regardless of what the best legal angle is.

And how experienced their team is isnt really an issue as they will now have, thanks to publicity, a lot of senior figures pitching in. They will also want a good result as that would be better than any ads.

by Darragh Mon Aug 29, 2005 13:49 darragh25 at hotmail dot com

Al,

I posted this idea of a trip to the Supreme Court to get some healthy debate going here that may be of assistance of the five men, not to have my own background and qualifications dragged into the debate. I don't post comments up here unless I have researced them fully, and in that respect I don't have to rely on the comments that can be found on the courts service website, or on the habits of every Tom, Dick and Harry criminal that you seek to rely upon above.

If you researched the facts as I have, you will find out that you are wrong, I've already given you one example of why you are wrong, and you refuse to accept it. The simple reason why every Tom, Dick and Harry is not testing legislation for constitutionality is that they could not afford to do so, because the Free Legal Aid scheme is only available for a defendant in a criminal action and does not extend to civil actions.

If someone wants to take this route, they have to be in a position to fund it themselves, as I've already said above, which is why you don't see a queue of prisoners outside the Supreme Court every day.

Also, I don't need to consult the courts service website to be in a position to stand over what I say here.

The reason why the five men and their legal team have not elected to take their case to the Supreme Court to get the men released is best discussed with themselves.

In the meantime, I'm putting together a full list of cases that have been brought directly to the Supreme Court to test the constitutionality of an act of legisation, I'll post that up here as soon as I have it finished.

by Gerard Mon Aug 29, 2005 14:04

My friend who is a barrister tells me that everyone in the law Library recognises that there is not a snowballs chance in hell that Shell should drop its injunction. He also says that legally it is the correct course of action for them to take. just passing on the legal view - nothing else

by Al Mon Aug 29, 2005 14:26

Darragh,
Its funny that now you refuse to accept the court services website when it was you that first refered to it.

Its also funny how Rumpole agrees with me isnt it?

Isnt it funny how I showed your 1 case was not direct to the Supreme court. Only the president can go direct.

Even funnier that you dont believe any knowledge, experience or training in the subject is of benefit.

You continue with your research, which you have failed to show, I will continue with my research which is easy enough considering I have books and books on criminal, civil and constitutional law. However we could simple agree to disagree and leave it at that without taking this one on one any further.

Im happy enough to leave it, its dragging on now anyway.

by Al Mon Aug 29, 2005 14:27

Gerard is 100% correct from a tactical and legal point of view. To drop it would be admitting they are wrong and having to go back to square one.

Shell have a moral duty to take such action however they are a business and morals dont come into it.

by Darragh Mon Aug 29, 2005 15:32 darragh25 at hotmail dot com

Al,

At the rate in which you are pedddling incorrect information, you should think about working for the Shell PR Dept. I didn't refer to the courts service website, only insofar as I said there wasn't enough information with regard to case law on the website to prove the point that I was making above. It was yourself who visited the website and copied and pasted the most basic of information avaiable on the website to support what you say. You say that you have "legal documents" that prove what you are saying is correct and that I am incorrect, if you have such documents, please disclose whatever sources you are referring to here on this forum. Anyone can come on here and refer to "books and books on criminal, civil and constitutional law".

If you tell me that these five men are disqualified from bringing a case directly to the Supreme Court, challenging the constitutionality of an act of law, please tell me on this forum exactly where you are getting this information from?

As I said earlier, I'll post up the instances of this having been done before later on today, because this information is not on the internet...

by Al Mon Aug 29, 2005 16:29

"Check it out...
by Darragh Friday, Aug 26 2005, 12:13pm
darragh25@hotmail.com

Just for the avoidance of any doubt, taken from the Irish Courts Service website, speaks for itself...

http://www.courts.ie/courts.ie/Library3.nsf/6556fea313d95d3180256a990052c571/2d2779d5d7a9feab80256d8700504f7b?OpenDocument"

Why tell fibs Darragh?

Out of all the posts here, only you maintain the stance that they can go direct. I say no, Rumpole says no and Siog says no, Fred says no.

My literature is:
1. The Irish constitution (Available in Easons)
2. Criminal Law - Essential Law Text, T.J. McIntyre & Sinéad McMullen, 2001
3. An introduction to Irish law, Conor Hanley 1999.
4. An Garda Siochana reference manual: criminal law. (Not available to the public)

Now add in lectures and notes from my studies that dont have particular names and werent printed for public use.

Now, stop saying your doing it and just do it. How hard is it? I can think of 3 in the last 10 years that have gone as far as the Supreme court.

by Legal Pedant Mon Aug 29, 2005 16:35

"My friend who is a barrister tells me that everyone in the law Library recognises that there is not a snowballs chance in hell that Shell should drop its injunction."

First things first the Law Library has been closed since the 29th July. When did your friend do this straw poll? I doubt that any barrister would use the word 'should' unless they have a vested interest. Perhaps they might have used the word would.

by Darragh Mon Aug 29, 2005 20:38 darragh25 at hotmail dot com

Al,

Please refer to the following cases:

Goulding Chemicals -v- Bolger [1977] IR211, the Supreme Court permitted the respondents to to raise the constitutionality of section 11 of the Trade Union Act, 1941, even though, this matter had not been brought before the High Court.

Doyle -v- The Minister for Education [1946] IR149, the Supreme Court heard a challenge to section 10 of the Childrens Act, 1941, although no constitutional challenge on this basis had been heard before the High Court.

I'm not making this stuff up Al, I posted on this thread so that some creative thinking could be discussed here and debated with a view to it possibly being of some benefit to the five men in Cloverhill. You recirculating the same defeatist argument in here is only wasting everyones time and is probably detracting from the possibility of the five men being released from prison on their own terms. I don't have a problem with you disagreeing with me, but the manner in which you disagree with me, and reduce the discussion to a slagging match is regrettable.

There are occasions (such as the two above), when the Supreme Court will become the court of first instance in relation to a constitutional challenge to a legislative act, it doesn't happen every day, in fact in rarely happens, but it does happen, and you need to accept that it does and let people discuss those occasions here openly and freely without you and your ego trying to force your own defeatist rhetoric on the rest of us.

by Al Tue Aug 30, 2005 02:04

Darragh,
I suggested dropping it twice already. you are the one that went off and spent all day researching purely to keep this little debate alive.

I also think you place too much importance on this thread, like I said before, the men have whole legal teams dedicated to their cause. they dont need us to decide their next action.

As for your two choices.

Doyle was taken prior to the Supreme court being placed in legislation, the rules changed. That doesnt count. you may as well use an example predating the Free state or common law. the current Supreme court only came into effect in 1961 with the remodeling of the Irish court system, interestingly there is debate raging if decisions made in the old supreme court are actually legal. Also note that the supreme court included the high court back then.

having searched for Goulding v Bolger IR 211 I cannot find any case for 1977 in either the supreme court or the High court. It will obviously require further research. Of what I did find, no papers refered to the actual court the decision was reached in.

Now, you have brought up 2 cases. I have proven 1 was not an example of what you say and 2 will require more research than I am prepared to do as it is not listed in the high court or Supreme court listings for 1977. So I will leave you with no less than 6 quotes (and a diagram) all of which you can verify yourself. they come from the court service, the law library and citizens advise bureau.

"The court was to be presided over by a President of the High Court. A Court of Criminal Appeal to hear appeals from the Circuit Court and High Court was also established. Provision was made for a further right of appeal to the Supreme Court on a point of law of exceptional public importance. The Supreme Court was created as the final court of appeal, to be presided over by the Chief Justice." (http://www.courts.ie/courts.ie/Library3.nsf/pagecurrent/8B9125171CFBA78080256DE5004011F8)

"It is primarily an appellate court and therefore its original jurisdiction is very limited. An important part of its original jurisdiction concerns reference of a Bill for determination as to its constitutionality. Article 26 of the Constitution provides a mechanism for reference of Bills by the President to the Supreme Court for its consideration as to whether they are constitutional. All appeals from the High Court to the Supreme Court are on a point of law only as there can be no de novo rehearing. (De novo means full hearing - Al) (http://www.lawlibrary.ie/viewdoc.asp?m=a&fn=/documents/aboutus/civilcourts.htm)

"There is no direct access to the Supreme Court because this only hears cases on appeal that have already been decided in the other courts" (www.staff.ul.ie/greenfordb/ Topic%2011-The%20Irish%20legal%20system.doc, this is a PDF form but you can click 'view as HTML')

"The Supreme Court is the court of final appeal for both civil and criminal cases. It is an appellate court, that is it hears appeals from lower courts." (http://www.lawlibrary.ie/viewdoc.asp?m=a&fn=/documents/aboutus/introduction.htm)

"The President is the only person who can go directly to the Supreme Court" (http://www.cidb.ie/live.nsf/0/802567ca003e043d8025623c004d44b2?OpenDocument)

"you can only go to the Supreme Court if you have already been through other courts and your access to the European Court of Justice is limited as well" (www.cidb.ie/live.nsf/0/ 802567ca003e043d8025623c004d44b0?OpenDocument )

A clear diagram of the court system: http://www.lawlibrary.ie/docimages/CourtsDiagram.gif

thats it Darragh, I cant put my case forward any better than quoting those that now the most and providing website links that you can follow yourself.

I am not discussing this any further, if you insist your right then I suggest we just drop it, agree to disagree and move on because its taking up too much of our time and this thread.

by Darragh Tue Aug 30, 2005 03:29 darragh25 at hotmail dot com

Grand Al you dismiss the caselaw that I have cied here, alleging that you "can't find it", or the only other case that you accept I have cited, you say that, "the Supreme Court didn't exist at that time", I'm not even going to discuss this any further with you, if you can't even do the discussion justice without pretending that you are David Copperfied and that you can make the Supreme Court disappear, or are going to follow the lead of our politicans and "cannot recall", a particular case that you rather did not exist for for your own benefit.

Please have some respect for the five men in custody and stop pretending that this thread is "Garda Patrol". You can't just dismiss case law by deciding that the Supreme Court didn't exist at the time that my cases were decided, or saying that you can't find the other case. Will you pinch yourself and realise that I want to discuss real cases and real determinations. I was hoping to find people here who would be in a position to discuss this substantively, not people who want to quote the garda Siochana Quick reference Guide to criminality, as you have done above.

Thankfully, people who are serious about this issue, who can relate to the situation that the five men are in at this time, who can see beyond their own egotistical need to be right on every occasion, have e-mailed me privately and wish to discuss this matter in another forum, where the facts can be properly and maturily discussed and shared without unbridled ignorance getting in the way, as is the case here, and where people can have a mature conversation without you getting in the way and distorting the facts. It's a pity that an independent media website has become a place that people visit, and then run away from, because they do not feel that opinions can be freely expressed here.

As for yourself, who is still quoting information that any 1st year law student would in a position to dispense, keep chatting away on this thread and trying to rubbish me, but be aware that as long as you persist in being ignorant of the facts and trying to win an argument because you simply belive you are right as distinct from being of any actual benefit to anyone here, by peddling and repeating inaccurate and defeatist information on this forum, you are increasing the chances that the five men will not be released from prison on their own terms, and you are furthering yourself, by virtue of your own ignorance, from the real debate that is taking place in relation to this topic at the moment.

There in only one way by which these men will be released from prison on their own terms without purging their contempt, and this is through the Supreme Court on the basis of them citing their constitutional rights.

by Al Tue Aug 30, 2005 10:34

Ah ha Darragh,
You well and truly trip yourself up. The Supreme court only came into being in 1961 with the passing of the Courts (Establishment and constitution) Act 1961, prior to that the Supreme court and High court acted as 1 and had no actual basis in legislation which renders your argument pointless. Research will back me up on that.
"1.—(1) On the commencement of this Act, the Court of Final Appeal, which in pursuance of Article 34 of the Constitution is to be called An Chúirt Uachtarach (The Supreme Court), shall stand established.

(2) The Supreme Court shall be constituted of the following judges—
( a ) the president thereof, namely, An Príomh-Bhreitheamh (The Chief Justice), and
( b ) such number (not being less than four) of ordinary judges (each of whom shall be styled "Breitheamh den Chúirt Uachtarach" ("Judge of the Supreme Court")) as may from time to time be fixed by Act of the Oireachtas.
(3) The President of the High Court shall be ex officio an additional judge of the Supreme Court.
(4) Where, owing to the illness of a judge of the Supreme Court or for any other reason, a sufficient number of judges of the Supreme Court is not available for the transaction of the business of that Court, the Chief Justice may request any ordinary judge or judges of the High Court to sit on the hearing of any appeal to or other matter cognisable by the Supreme Court, and any judge so requested shall sit on the hearing of such appeal or other matter and be an additional judge of the Supreme Court for such appeal or other matter." (Section 1(1) of said Act) - Funny, that also states that it is a court of appeal. How strange.

The arrogance of a person with no legal training or experience to state that the bar council of Ireland and the court service is wrong.

The arrogance of a person to believe that without his input on this site the 5 are doomed.

The arrogance of a man to disregard written law yet provides no references for his own information.

No Darragh it is you who will continue on when defeated.

And everyone is free to discuss their opinions freely but if I disagree I will say so as you have done here (You started this debate on the Supreme court, not me) thats where my freedom of speech comes into play. Isnt it more accurate to state that you want this site to be free to only those that agree?

However, in the interests of debate lets forget the right and wrong of our arguement and look at it from a position where they can go to the supreme court. Whats the best course of action in your opinion?

by Darragh Tue Aug 30, 2005 11:35 darragh25 at hotmail dot com

Al,

I never said that the five men were doomed without my inputs, I have my own opinion on how this will ultimately end but while you have the answers to hand, how to you think this situation is going to end??? Let me have your thoughts on how you see the five men being released from Cloverhill??? Do you think they will purge their contempt??? Do you think Shell will voluntarily collapse their injunction??? Do you think Justice Finnegan will suddenly change his mind in October???

This all has to end somewhere, if you don't agree with me that it will end in the Supreme Court with the men using their constitutional rights to obtain their freedom, where do you think it will end??? And answer me this, do you accept that the men can take their case to the Supreme Court citing their rights under the constitution???

As for your question regarding what grounds may be argued when they go to the Supreme Court, I've gone into these in detail above...

by Al Tue Aug 30, 2005 11:59

Darragh,
Its true there are many possibilities and Im not going to highlight them all in one post.

At this moment in time the way I see it happening is the men will remain in Cloverhill until October when the full hearing takes place. Now we have 3 directions this can go.

1. The mens arguement is upheld at which point Shell are told to get off their land. The men rejoice, its a victory at last and return to their homes. Shell meantime lick their wounds and go back to the drawing board. Perhaps with the government tagging along.

2. The decision goes with Shell, now the door is opened for the Supreme court. There is an appeal to the Supreme court, possible on constitutional grounds but also possible on health and safety grounds. This in my opinion is a safer bet as it is easier to prove and not considered as big as looking at the constitution. It also allows a constitutional arguement to be kept in reserve.

3. A point of law is sent to the Supreme court which would more than likely be focused on the CAO. As you highlighted, the common good in this scenario appears shaky. I have a few opinions how it could be argued both ways.

Personally I think this case can be won through points 2 and 3. I think 1 is the long shot.

In regards contempt, as the contempt if for refusing to stay away from Shell until the hearing this is now null and void. Possible the Judge could insist that they actually purge their contempt by way of apology however its more realistic to believe he will consider time served to be adequate, especially considering the media spotlight on this case. As a result the men will, one way or the other, walk out of court free men. The question now is will it be walking to the Supreme court or home?

by Legal Pedant Tue Aug 30, 2005 12:28

"Doyle was taken prior to the Supreme court being placed in legislation, the rules changed. That doesnt count. you may as well use an example predating the Free state or common law. the current Supreme court only came into effect in 1961 with the remodeling of the Irish court system, interestingly there is debate raging if decisions made in the old supreme court are actually legal. Also note that the supreme court included the high court back then."

So the mention of the Supreme Court in Articles 34 (3) and (4) are a figment of my imagination. (That would be the 1937 constititution) The courts were reestablished in 1961.

From your own source:
'In January 1923 the Judiciary Committee, chaired by former Lord Chancellor Lord Glenavy, was appointed to advise the Executive Council (Cabinet) on the establishment of a new court system. The Committee's recommendations were substantially adopted in The Courts of Justice Act, 1924. It created a District Court to replace the court of petty sessions and the Justice of the Peace. The Justices of the District Court were professional judges and had jurisdiction over minor civil and criminal matters. The Circuit Court had jurisdiction in more serious civil and criminal matters. On the civil side, it replaced the county court, and on the criminal side, it assumed the former jurisdiction of the court of assize. It had appellate jurisdiction over District Court cases. A High Court exercising the same jurisdiction as that proposed under the 1920 Act was created. On the criminal side, the most serious offences, such as murder, were reserved to it. The court was to be presided over by a President of the High Court. A Court of Criminal Appeal to hear appeals from the Circuit Court and High Court was also established. Provision was made for a further right of appeal to the Supreme Court on a point of law of exceptional public importance. The Supreme Court was created as the final court of appeal, to be presided over by the Chief Justice.

'This structure was replicated in the 1937 Constitution and again when the courts were re-established in 1961 (which was necessitated by the enactment of a new Constitution in 1937), and remains the same today. As to the status of the existing law upon the establishment of the Free State, the effect was that pre-1922 statute and common law remained in force to the extent that they were consistent with the Constitution.'

"having searched for Goulding v Bolger IR 211 I cannot find any case for 1977 in either the supreme court or the High court. It will obviously require further research. Of what I did find, no papers refered to the actual court the decision was reached in."

Lazy, lazy Al. He even gives you the reference. It's 1977 Irish Reports Page 21, if you find citations difficult to read. And it's a Supreme Court case.

by Boycotter Tue Aug 30, 2005 12:45

Liamy McNally and Tim O'Brien

The five Mayo men imprisoned for contempt of court in connection with their opposition to the proposed Corrib gas pipeline have accused Shell of "vindictiveness and spite" in not facilitating their release from prison.

The five said the refusal by Shell to withdraw a temporary injunction was hindering their ability to prepare for a full hearing of the case scheduled for October.

In turning down a request from Mayo County Council to with-draw the restraining injunction against the men, Shell said such a move would undermine the entire legal basis for the onshore pipeline. A Shell spokesman said yesterday that setting aside the injunction was not a realistic option.

In response, the men, who have been in Cloverhill Prison for the last 63 days, said that as Shell had suspended work on the pipeline, the injunction not to interfere with such work made little sense.

Micheál Ó Sheighín, one of the jailed men, said Shell had at all times been only willing to communicate its own agenda "by bullhorn", and was "not in the least bit interested in dialogue".

"There has never been any indication that Shell has, in any way, been interested in dialogue.

"We cannot and will not give up our right to protect or turn our backs on our obligation to defend ourselves, our families and communities. This obligation is all the greater where the State refuses to do so.

"The only direct function the injunction now serves is to keep us in jail. No work is being done on the ground or will be done for the remainder of 2005.

"We cannot hinder work that is not being done."

Last week, the cathaoirleach of Mayo County Council, Henry Kenny (FG), and party colleague Paddy McGuinness visited the men in prison, and afterwards publicly requested that Shell withdraw the injunction to enable the men to purge their contempt and allow face-to-face talks.

Mr McGuinness said Shell's decision was a matter of great disappointment.

"We were hopeful that Shell would lift the injunction. This news is a great disappointment but we will not wash our hands.

"We are meeting with the council executive within the next 24 hours to examine further options. We cannot walk away. This is too serious."

Dr Mark Garavan, spokesman for the Shell To Sea campaign, said the impasse "has nothing to do with the law but with Shell's strategy. These men were targeted by Shell".

He accused Shell of adopting a hardline position in contrast to the moderate approach of the men and their families, who want to see the matter resolved.

Bellanaboy/Leenamore residents, who live beside Shell's proposed Corrib refinery about five miles from Rossport, also issued an open letter yesterday calling on the company to withdraw the injunction.

The letter, signed by Jacinta Healy, reminds Shell that in their five-year battle opposing the refinery the residents had always treated Shell personnel "with respect, courtesy and dignity at all times".

It has also emerged that Advantica, the company appointed by the Government to carry out the latest safety review on the Corrib upstream pipeline, is a sister company of Transco, the British gas transportation company fined £15 million last week for causing the deaths of four members of a Scottish family in 1999 due to health and safety negligence.

© The Irish Times

by Al Tue Aug 30, 2005 12:45

Legal,
Are we getting back into this? Because if we are I can prove you wrong but myself and Darragh moved on.

by L P Tue Aug 30, 2005 12:54

Just using your sources Al the Courts Services website, the 1937 Bunreacht and Courts (Establishment And Constitution) Act 1961.
Don't smoke and mirrors me with your "are we getting back into this" and prove me wrong act. Put up or shut up. The '61 act was only an act or reestablishment and not as you claimed something new.
I suppose the High Court didn't exist before S2 of the 61 act using your logic.

by Boycotter Tue Aug 30, 2005 12:58

(Sorry if these articles get in the way of know-it-Al)
One of the myths propagated by left-wing agitators is that the development of the Corrib gas field off the Mayo coast will not benefit the ordinary citizen. This is wildly inaccurate, argues Fintan O'Toole.

The truth is that huge profit from the exploitation of this Irish natural resource will flow into the exchequer.

Over the next 15 years or so, hundreds of millions of euro will be generated for the public finances. The money will pay for better health services, for improved education facilities, for the alleviation of poverty, for investment in vital infrastructure. The people of north Mayo may have to endure some environmental degradation and to live with justified anxieties about their own safety. But the lives of millions of ordinary people will be made better as a result.

The bad news is that all of those ordinary people are Norwegian. The maths are simple enough. The plain people of Norway own just over 71 per cent of Statoil. Statoil has a 36.5 per cent stake in the development of the Corrib field. (Shell has 45 per cent and Marathon 18.5 per cent.) That means that the citizens of Norway effectively own 25.5 per cent of the gas from the Corrib field. Which is precisely 25.5 per cent more than the citizens of Ireland do. A resource that lies 70 kilometres off the Mullet peninsula in Co Mayo will benefit Erik and Elsa Soap in Bergen far more than it will benefit Joe and Josephine Soap in Belmullet.

In an almost comically absurd expression of our addiction to misgovernment, we will buy our own gas at commercial rates from, among others, the Norwegian people. Last year, 67 per cent of Statoil's profits were taken by the state in the form of taxes, boosting the exchequer in Oslo by around €5.7 billion. If these tax rates continue to apply, that means that for every €100 worth of profit that is made from Irish people buying our own Corrib gas over the next 15 years or so, around €17 will go into the Norwegian exchequer. Most of it, presumably, will go into the vast Government Petroleum Fund, which the Norwegian state is storing up against the day when its own oil runs out. So Irish gas will be helping to pay the pensions of Sami deer-herders in Lapland in 2050.

While Irish kids take trips to see Santa Claus in Lapland, the Laps will be writing letters to Santa in Ireland.

This may be the largest transfer of resources from Ireland to Scandinavia since the Vikings raided our monasteries in the eighth and ninth centuries and nabbed the chalices and crucifixes. The big difference, of course, is that this time the transfer is, on our part, entirely voluntary. Even as oil prices hit $70 a barrel, we are in the business of giving away our energy resources for nothing - no public stake, no royalties and very little taxation. It is not Norway's fault that our Government continues to volunteer us for the role of "ragged trousered philanthropists", sending money to Tromso and Trondheim when it is badly needed in Leitrim and Longford.

The Norwegians have had the intelligence and self-respect to ensure that their natural resources are used to fund the country's social and economic development. Norwegian government policy is that the first aim of oil and gas development is that "the whole population should benefit from the depletion of these resources. This implies that our petroleum revenues must be managed with the view of improving the welfare of present and future citizens of Norway." The share of the profits from the Corrib field that will go to the Norwegian state will undoubtedly benefit far more people than will the portions going to the shareholders of Shell and Marathon, and we can hardly begrudge them the fruits of their far-sightedness.

There is nevertheless an irony in Statoil's involvement in the Corrib project. As an arm of a progressive, liberal state which takes its social responsibilities seriously, Statoil would never dream of treating Norwegians the way it is treating the Rossport community in Mayo. In Norway, Statoil regards the local communities affected by its pipelines and refineries with tender concern. It puts large amounts of money into affected areas to compensate for the inconveniences. It pays way over the odds for property that has to be compulsorily purchased.

And Statoil's operations in underdeveloped countries are also run with considerable sensitivity. According to the company's social responsibility manager, Natalja Altermark: "A country manager's top priority is to secure the reputation of the Statoil operation in that country, while being wary about how this operation affects Statoil's corporate reputation in Norway." In Norway or Nigeria, Statoil wouldn't dream of having members of a local community affected by the company's operations locked up in prison for a peaceful protest. The Norwegian citizens wouldn't tolerate it and the Norwegian government would be mortified by the international opprobrium. But in Ireland, Statoil seems to feel no such responsibility, presumably because it imagines itself to be operating in a modern democracy where the State will stand up for the citizens.

How could you even begin to explain to rational, enlightened people such as the Norwegians how far-fetched an assumption this is?

© The Irish Times

by Darragh Tue Aug 30, 2005 13:25 darragh25 at hotmail dot com

In my opinion, what the men are suffering, it is not illegality as everyone keeps saying, "this is illegal and that is illegal, and Shell did this wrong and the government did that wrong..." The men have had legislation applied to them, it is their constitutional rights that are being tampered with by way of the application of that legislation. I haven't heard any mention whatsoever of this simple fact in the media or anywhere else. All I keep hearing about is that what Shell is doing is wrong, yes, we all know it is, and that it is immoral, yes, we all know that too. I think there is a particular focus missing on what exactly is wrong here. I'm not saying that we should all staple the constitution to our banners next time we march, but from where I'm standing, there is a clear disconnect between what Shell is trying to do here, and how it affects us all, not just the Rosport Five, in terms of no common good whatsoever being served with regard to this project, and why it is so important that there is a common good being served, because it is only when there is a common good being served, that the state can move to take land from a citizen.

The Supreme Court is the only place where the government can actually be held to account on this issue, besides at the ballot box, and I don't care what anyone says, it wouldn't be that much different if we had an FG/Labour coalition, or any other flavour of government, we'd have the same cozy arrangements in place, because this is how these multinationals operate, they lick up to the government and glad hand and high roll them.

There has to come a day of reckoning in this case, the government has to be held to account, otherwise we may just as well accept that we are living in a Banana Republic, we may as well ask Robert Mugabe to come over and run the place for us.

by Al Tue Aug 30, 2005 13:56

"The present courts were set up by the Courts (Establishment and Constitution) Act 1961 pursuant to Article 34 of the Constitution adopted by the people in 1937." (http://www.courts.ie/courts.ie/Library3.nsf/6556fea313d95d3180256a990052c571/3782cdc7996c6b9480256d8700505221?OpenDocument)

"A decision of the full Supreme Court (be it the pre 1961 or the post 1961 Court), " (http://www.lawyer.ie/cases/case2.htm)

“The establishment of the present High Court in 1961 was followed by the provisions of s. 14, sub-s. 2, of the Courts (Supplemental Provisions) Act, 1961, and by the coming into force of the Rules of the Superior Courts, 1962, on the 1st January, 1963. The Constitution conferred upon the High Court established in 1961 a universal original jurisdiction in all matters and questions whether the law or fact, civil or criminal (http://www.courts.ie/judgments.nsf/0/3e367d8b318014cb80256e94003f9aaf?OpenDocument)

I wasnt suggesting that prior to 1961 no courts existed however they were not the current court system we have. On gaining independence the old system remained and the inital actions within the syetem was removing the Dail courts.

Now, I moved on from the courts and stated what I think is the most probable way forward for the 5. Wuld you care to post your thoughts?

by Darragh Tue Aug 30, 2005 13:57 darragh25 at hotmail dot com

Al,

I've only dropped the matter because if the State Solicitor came in here and told you were wrong, you'd still argue with him! I'm entirely correct in what I have said above, however the debate needs to move on, the discussion of the possibility of a Supreme Court case has moved from here to another forum more suitable for this complex topic. I've no time for debate that isn't based on fact, or for dissent solely for the sake of dissent.

by L P Tue Aug 30, 2005 14:03

If you are setting the criteria for debate as in:

"Now, I moved on from the courts and stated what I think is the most probable way forward for the 5."

Can't see a way of answering you without mentioning the courts.
Your understanding of the courts system if you would care to look over your own posts was wrong that is why you are 'moving on'.

by Al Tue Aug 30, 2005 14:06

In other words you werent winning so you went off to sulk and brought the ball with you.

I have proved my point multiple times and I posted on what i believe are the ways of dealing with this situation but as you can see, no one responded, why? because Im right.

Again I say it, you dont want debate, you want yes men. And if thats the case then stop sulking, here you can have the thread for yourself and your friends....

by Fed up Tue Aug 30, 2005 14:56

The law locked them up illegally. The law can be used to get them out.
MAYO MEN

I’M FED UP WITH THE CONTINUED LOCK-UP OF THE MAYO MEN

The Mayo men were locked up because they blocked the work of shell and refused to give an undertaking to the court that they would not block future work.

The original case presupposed that the work that shell were doing was legal and had full planning permission.

This was not the case.

They did not have planning permission.

Therefore, the men should never have been in court as they could not be charged with putting a stop to something illegal.

Can this not be appealed to a higher court?

Fed up.

by Darargh Tue Aug 30, 2005 14:59 darragh25 at hotmail dot com

Not at all Al, rational and sensible debate is only possible with rational and sensible people. No proper debate is possible when you insist on frustrating meaningful discussion with utter bullshit.

by S Tue Aug 30, 2005 15:03

Darragh ....now you know how frustrating it is to debate with this Shell to Sea crowd!!

by Darragh Tue Aug 30, 2005 15:04 darragh25 at hotmail dot com

Al, the reason people are no longer discussing it here is because the matter is being seriously discussed somewhere else now, where you are not able to undermine the complex discussion that is taking place, and not because as you say above, that you have won your argument on this thread.

It was an oversight on my part bringing up the topic of constitutionality on this thread.

by Dryder Tue Aug 30, 2005 15:09

Your argument is quite true, but an application to the suprme court would take at least six months. We need a short term solution! October 1st has to be it!

Good article in the Irish times today page 2, its about time too!

by Archivist Tue Aug 30, 2005 15:10

Al was quite simply wrong when he said:
"Ah ha Darragh,
You well and truly trip yourself up. The Supreme court only came into being in 1961 with the passing of the Courts (Establishment and constitution) Act 1961, prior to that the Supreme court and High court acted as 1 and had no actual basis in legislation which renders your argument pointless. Research will back me up on that."

Care to show your research here's mine:

Society for the Protection of the Unborn Child v. Grogan [1997] IESC 4; [1989] IR 753 (6th March, 1997)
"A decision of the full Supreme Court (be it the pre-1961 or the post-1961 Court), given in a fully-argued case and on a consideration of all the relevant materials, should not normally be overruled merely because a later Court inclines to a different conclusion. Of course, if possible, error should not be reinforced by repetition or affirmation, and the desirability of achieving certainty, stability, and predictability should yield to the demands of justice. However, a balance has to be struck between rigidity and vacillation, and to achieve that balance the later Court must, at the least, be clearly of opinion that the earlier decision was erroneous. In Attorney General v Ryan's Car Hire Ltd the judgment of the Court gave examples of what it called exceptional cases, the decisions in which might be overruled if a later Court thought them to be clearly wrong. While it was made clear that the examples given were not intended to close the category of exceptional cases, it is implicit from the use in that judgment of expressions such as 'convinced' and 'for compelling reasons' and 'clearly of opinion that the earlier decision was erroneous' that the mere fact that a later Court, particularly a majority of the members of a later Court, might prefer a different conclusion is not in itself sufficient to justify overruling the earlier decision. Even if the later Court is clearly of opinion that the earlier decision was wrong, it may decide in the interests of justice not to overrule it if it has become inveterate and if, in a widespread or fundamental way, people have acted on the basis of its correctness to such an extent that greater harm would result from overruling it than from allowing it to stand. In such cases the maxim communis error facit jus applies . . ."

Bottom line for those who care. The Supreme Court was set up in 1924, enshrined in the Constitution in 1937 and reestablished in 1961. Back to the books for you Al.

by Brian M Tue Aug 30, 2005 15:12

Can I suggest that people just ignore these trolls. They have nothing to offer.

by Darragh Tue Aug 30, 2005 15:18 darragh25 at hotmail dot com

S, we were trying to discuss the possibility of success of a Supreme Court case based on the potential unconstitutionality of the PUBLIC ASSISTANCE (ACQUISITION OF LAND) ACT, 1934. Mr. Al here thought he could best contribute to the debate by quoting from his "An Garda Siochana reference manual: criminal law".

All I wanted to discuss here was, "Is there a possibility that the five men can obtain their freedom by petitioning the Supreme Court on the basis that PUBLIC ASSISTANCE (ACQUISITION OF LAND) ACT, 1934, is regugant to the constitution, because it fails to evaluate the common good in respect of the states right to take land from a citizen, or in this case, to issue the CAO, a key requirement of the constitution, as stated in article 43(2)(2)...

by Arthur Tue Aug 30, 2005 15:24

Some people are a little confused. Shell has the planning permission for a terminal. It had the consent necessary to carry out preparatory work on the lands that the objectors were obstructing. They are the facts and are indiputable.

Now watch all bile and purile remarks and posts come my way. Whatever - the facts remain.

by Darragh Tue Aug 30, 2005 15:32 darragh25 at hotmail dot com

Well its quite simple, Shell do not have plannng permission for their pipeline, they do not need planning permission for this structure, they need ministerial consent.

The state can only take property (including privately owned land), from the citizen if there if the common good for the nation is best served by doing so. This is required in the constitution. Where is the common good being served here??? The only people I can see getting any common good out of this transaction are the people of Norway.

No bile, just simple facts!

by Padraig Tue Aug 30, 2005 15:50

from all the legal stuff posted by Darragh and Al which was interesting for a while but now boring, I think in the best interests of the campaign (which I must state I am not part of) the men should come out immediately

the campaign is losing its impact due to current stalemate and people like myself have all but forgotten about it, its not being covered by the media to anywhere near the extent of their first few weeks inside

by Tom Tue Aug 30, 2005 16:10

yes padraig, I agree and I have stated this here before. the men missed the boat and should have come out of jail when their national sympathy was at its height. There is no work being done on the project, there is a safety review - come out for gods sake

by Darragh Tue Aug 30, 2005 17:40 darragh25 at hotmail dot com

I think the campaign is still very strong, but needs more high exposure demonstrations like the last one in the capital.

There seems to be this sense of foreboding in the air that something is going to give soon, either the men will purge, or Shell will collapse the injunction, and I don't think that either is going to happen in the near future.

I still think that the five men could take their case to the Supreme Court immediately, and claim that the original legistaion that was used by Shell to gain access to their property is unconstitutional, and therefore the injunction that was obtained by Shell is also unconstitutional.

With regard to how much time this course of action might take, the extract below from Kieron Woods (BL) website might shed some light on the issue: http://indigo.ie/~kwood/

"In Capital Radio Productions v Radio 2000, unreported, 26 May 1998, the Supreme Court held that it had an obligation to give priority to any matter that required urgent attention, such as family law matters or habeas corpus applications. It said there could be crisis situations which required the Court to drop everything and attend to the matter."

It might not take as long as it seems, it appears that there are options, hence why we should discuss them here...

by Poster Tue Aug 30, 2005 17:51

"It might not take as long as it seems, it appears that there are options, hence why we should discuss them here..."

Please don't encourage know-it-Al

by Darragh Wed Aug 31, 2005 20:16 darragh25 at hotmail dot com

I was thinking about something recently with all the discussion on the Rossport 5, and also on Rip Off Republic.

I think the level of dissatisfaction out there at the moment with this government is so high, its the topic of conversation on the street now, I was thinking what would happen if there was a general election next week, what would the people say???

Its all very well saying that the current administration is utterly useless, but speaking for myself here, I'd be afraid to vote for any other party, FG, Labour, Greens, SF, for fear I'd only be making matters substantially worse. Look at the topics that people are unhappy with, its been so long since I've seen Enda Kenny on the TV, I've forgotten what he looks like, and all our TD's take a minimistic view of their jobs, it is obvious they are in it for the salary, expenses and their own ego.

I think there is so much dissatisfaction out there that if we had a general election in the morning and a credible alternative for a government (not like the last time where we had the opposition offering to compensate anyone who would vote for them, Eircom shareholders, Taxi drivers, people who fell out of the wrong side the their beds).

I men a real credible government, like a government that consisted of people like ourselves, who know what the cost of living is, who would not be afraid to get a decent deal for the Irish people when dealing with our state assets.

People who would not be afraid to bring back chain gangs (forget about ASBO's!), for little shitheads that go around robbing cars and making life unbearable for people in their community.

People who would stand up to the vested interests all over this country, RGDATA, The Insurance Federation of Ireland, IBEC, the multinationals, land developers, etc, and say out loud and clear, "you guys didn't elect us, so you come second, we might be able to help you, but we have to make sure we do the right thing by the people who put us here first"

What I'm asking is, if we were to design a new government from the bottom up, a clean sheet approach, (forget about coalitions with Labour, FG, the PD's and SF and all of that shite. Say we wanted to design a new government, a new party (I dont even like using the word party because even that word has been tainted by the politics in this country), say a new organisation, what would we want it to be like, what ethos would we want it to have??? What would be our program for government??? What kind of people would we want to be attracting to our new organisation??? How would we improve the quality of life of Irish people??? How would we make sure that we did what we said we would do, and improve the quality of life for people who live here???

I'd love some discussion on this, because I reckon that the level of unhappiness with the government is so high out there, that if someone could join up the dots and harness this, give it an identity, a set of beliefs, a whole new movement could be created, and take this incompetent bunch of clowns off their pedestal like a bolt of lightening out of the blue!

by CYNIC Wed Aug 31, 2005 23:31

What the Supreme Court regards as a crisis and what you regard as a crisis may well not coincide !

by Darragh Thu Sep 01, 2005 01:39

Well what do you think qualifies to be a crisis???

by Al Thu Sep 01, 2005 03:14

Thats a bit off topic isnt it Darragh?

That very question was asked in another thread about 3 weeks ago. Very few people answered straight but those that did said they were voting independent next time round.

The thread was called 'inside the mind of a Fianna fail voter' or something like that.

by Darragh Thu Sep 01, 2005 03:30

Yeah, I wandered off the topic a bit, couldn't work out how to start a new thread! Just food for thought...

by Boycotter Thu Sep 01, 2005 13:30

James Fitzgerald

The five Mayo men jailed for contempt of court over the Corrib gas pipeline have asked the Taoiseach to intervene and resolve the situation.

During a meeting with six TDs and an MEP in Dublin's Cloverhill Prison yesterday, where the men have been held for the last 65 days, the men dismissed a suggested solution from Labour Party leader Pat Rabbitte.

Tony Gregory TD said the only way the men would now be released was if the Shell oil company lifted its injunction restraining the men from interfering with work on the pipeline.

"Arising from our visit we have been asked by the men to request a meeting with the Taoiseach and with the Norwegian ambassador on the basis of the Norwegian company Statoil's involvement in the project, and the fact that the Norwegian state will make more out of Corrib than the Irish State," said Mr Gregory.

On Tuesday, Mr Rabbitte suggested that the men could be freed if they apologised to the court, while Shell simultaneously withdrew the injunction. He added that the Government needed to appoint an agreed negotiator to report on issues of concern to the men.

"I'm afraid the men didn't think much of Rabbitte's suggestion," said Mr Gregory. "We specifically asked them about it and they dismissed it out of hand . . . they say that considering work on the project is halted and will probably remain so until the end of the year, the only purpose the injunction serves is to keep them in prison," he said.

A spokesman for the five men confirmed their wish for the seven politicians to meet with Mr Ahern and the Norwegian ambassador. He described Mr Rabbitte's suggestions as "redundant" and "not practical".

"The first step has to be for Shell to lift the injunction," he said. "The men cannot enter into dialogue while in captivity. They are prepared to purge their contempt, but not while the injunction is in place.

"Appointing a negotiator would be redundant because this is a dispute about safety and safety is not something that can be negotiated in principle . . . the men are happy to talk direct to Shell on this, but the injunction must be lifted," he said.

Mr Gregory, who visited the men with TDs Jerry Cowley, Joe Higgins, Finian McGrath, Catherine Murphy, Séamus Healy and MEP Marian Harkin, said that despite spending more than two months behind bars, the men were more determined than ever.

Mr Gregory criticised Mr Rabbitte and Fine Gael leader Enda Kenny who, he said, had "let the Government off the hook".

A spokesman for Shell repeated last night that lifting the injunction would undermine the company's legal position.

© The Irish Times

by Brian Thu Sep 01, 2005 14:21

Madam, - Fintan O'Toole's column of August 30th ("Giving our Resources to Norway") is absurd. It shows no understanding of the basic economics of oil and gas exploration and development, and a cavalier disregard for the historical facts of Irish hydrocarbon exploration.

His position is that the State should be taxing the development of offshore natural oil and gas resources at similar levels to the Norwegian state. This in fact was State policy in Ireland from 1975 until 1992. The high levels of royalty, taxation and state participation in our original 1975 Oil & Gas law, combined with the very low level of success in Irish exploration drilling, had led to our offshore waters being effectively unexplored.

The number of exploration wells drilled annually had fallen from a high point of 15 in 1978 to just one in 1991. The reason was that until the discovery of the Corrib gas field in 1996, only one economic discovery had been made off Ireland - Marathon's Kinsale Head gas field. At this time the statistics were one success in 125 exploration and appraisal wells drilled, probably the poorest drilling success rate in the world.

At the same point in Norwegian exploration history, over 2,000 wells had been drilled, with an average success rate of one in two. Not even the most inveterate gambler would continue to throw money away on 125/1 outsiders, no matter how favourably taxed, when one in two risk opportunities exist in the country next door. If the new exploration terms of 1992 had not been introduced, Enterprise Oil would not have been attracted to explore in Ireland, and we would not have the Corrib gas field today.

Enterprise Oil, Marathon, Statoil and, more recently, Shell have since invested hundreds of millions of euro in the appraisal and development of the Corrib gas field, with no revenue to show to date. The State's inability to keep its side of the bargain, and to deliver due process to the developers of this asset, allowing them to develop it in a timely fashion, augurs extremely badly for the future of Irish offshore oil and gas exploration.

I cannot imagine that Dell or Intel would be keen to invest in Ireland if approval process for a new factory was subject to the same degree of arbitrary process, ad-hoc policy making and the invention of additional hoops through which prospective developers have to jump - which has been the fate of the Corrib gas field's developers over the past few years.

Perhaps this is why, at a time of record oil and gas prices, and when competition rates for access to new exploration acreage have never been higher in areas such as Norway, Nigeria and Libya, there were effectively no new applicants for the recent 2005 offshore Ireland licencing round.

If our current oil and gas tax policies were really the fantastic giveaway of our national hydrocarbon resources implied by Fintan O'Toole's column, the Department of the Marine, Communications and Natural Resources should have been inundated with applications from the acreage-hungry oil and gas companies of the world. In fact we had almost no applications. The international oil and gas industry views Ireland as an exploration graveyard, rather than the bonanza implied by Mr O'Toole's argument.

We will not have an oil and gas industry unless we encourage investment. The State needs to encourage the development of an offshore oil and gas industry to effectively assess the levels of reserves which exist. With any degree of success it may well be possible to increase taxation on that success, but only for new licence agreements. To seek retrospectively to further tax an oil and gas investment which has been so far disastrous to the parties involved would certainly kill off whatever small chances remain for future exploration off our coasts.

The Irish State is not willing to bear the risks which the Norwegian state has by creating and funding a national oil company to explore for oil and gas. Without private sector investment, we would not have an offshore natural hydrocarbon resource.

If we wish to have even the possibility of diversity of supply in natural gas - which, as the cheapest and most efficient current source of electricity, will supply the vast majority of our future power - we must encourage new exploration. This implies, at least until some degree of economic success is proven, that the current fiscal policies should continue to be at least as attractive as they are, if not more so.

To suggest, as Mr O'Toole does, that we should implement Norwegian levels of taxation, without Norwegian levels of success and inward investment, is economic madness. - Yours, etc,

BRIAN Ó CATHÁIN, Former Managing Director, Enterprise Energy Ireland, Kenilworth Square, Rathgar, Dublin 6.

by Shipsea Thu Sep 01, 2005 14:47

Mr O Cathain addresses financial arguments exclusively in his reply to Fintan O Toole. What seems to be implied, however, is that the safety concerns of the Rossport 5 should be swept aside because of the relative financial risk involved for the oil companies who drill/explore around Ireland. Do we need to beat ourselves up because we dont have as much oil as, say, Norway? If anything, Mr O Cathain makes explicit the rationale for the supineness of the Irish government in its dealings with Shell. We should learn, it seems, to be obsequious in our gratitude for their attentions. And the safety of a few farmers is really an inconsequential thing in the circumstances. Suppose the oil companies should be displeased! Heaven forbid! Let them build their facilites on our heads if they want to. Yes please! And be grateful for it.

Im having trouble with feeling the recommended empathy for the difficulties of Shell and Statoil who, I reckon, are pretty much quids in when all is said and done. They are here as commercial exploiters of our natural resources for nothing other than profit. Had they gone about their business in a manner respectful of the concerns of local people and been prepared to take sensible precautions to ensure their safety, in all probability they would have been able to proceed unhindered. Instead, they have railroaded and bullied innocent local people who are raising legitimate conerns about the manner in which the project is being conducted.

by in favour Thu Sep 01, 2005 14:52

I posted this in the wrong place earlier....

...Shell have been through the ringer on this project for over 5 or 6 years and been through countless examinations and hoops to get approvals and consents. Thats hardly bulldozing is it? I am in favour of the gas pipeline. We need to see this type of infrastructural development in the west. this will halp attract industry and modernise a neglected area.

I am sure there are genuine safety conerns but these can be addressed and dealt with through dialogue and the safety review. have you ever seen one of the pipes that this gas will be going through? Put it this way, i would be far happier about this not rupturing than one of the less thicker BGE pipelines that run all over the country and outside peoples homes. These BGE pipes are also much more likely to be interfered with by external forces like diggers and the like.

I have sympathy for the Rossport 5 but believe them to be blinkered and unaccomodating. they should come out of prison and start talking.

by CYNIC Thu Sep 01, 2005 20:32

QUESTION

" Well what do you think qualifies to be a crisis??? "

ANSWER.

A Constitutional crisis in the government of the country.

An imminent threat to property.

An impending threat to the safety or life of a person that requires urgent intervention..

A threat to public order.

The list could go on forever.

I am not decrying your essential point.

What I am trying to get across to you is that whilst a situation may well be serious - as it is here - the Supreme Court would probably need to be convinced that there was also some urgency. I doubt that you could ground that argument on the present facts.

by Shipsea Thu Sep 01, 2005 20:37

..all of those grounds are more than satisfied.

by Duine Fri Sep 02, 2005 13:29

Gach gníomh, téann sé i bhfeidhm ar an gcroí!

by Shipsea Fri Sep 02, 2005 13:39

An gaeilge anseo - tuigim go bfhuil se terrible (nil fhios agam an focal) ach ba mhaith lion tuigim cad a duirt tu. An bhfuil aon chance go deanaidh tusa an translation?
Gabh mo leath sceal about the gaeilge. Is doigh liom go mbeidh se helpful to a lan duine an bhfuil attempting to learn an gaeilge.
Posts as Gaeilge agus as English le cheile?

by Connacht Fri Sep 02, 2005 14:59

Yes, believe it or not, we live in a bilingual country. Have to say that I think it's great to see people posting in both languages.

by in favour Fri Sep 02, 2005 15:43

Hey at last ....something I do agree with you on Connacht!!

by Shipsea Fri Sep 02, 2005 15:54

I did post in both languages!!!

by Connacht Fri Sep 02, 2005 19:01

Don't mean to change the topic on this thread to the Gaeilge question, but have to come back and commend Shipsea on his/her posting in Irish - I missed your point earlier about posting in both languages to make it more accessible to readers.

Is deas gan mé féin agus "Ar Son" (~In Favour) a bheith ar mhalairt intinne i gcónaí ach oiread! Maith thú.

by CYNIC Sun Sep 04, 2005 22:56

AU CONTRAIRE WROTE " ..all of those grounds are more than satisfied. "

Do me a flavour.

Could you please explain how the hell all of the example grounds are satisfied by reference to the facts of the case ?

If you do not know the answer please have the decency not to bother replying in preference to giving us an inane waffle as argument of that quality does nothing for this campaign.