Reference has already been made to the significance to be attached to the word “accordingly” appearing in Article 43.2.2. It is therefore only where the State is pursuing a social justice principle that it may as occasion requires delimit the exercise of property rights with a view to reconciling their exercise with the exigencies of the common good.

It is worth noting also the phrase "as occasion requires" appearing in Article 43.2.2 of the Constitution. Such delimitation of property rights by the State when pursuing a principle of social justice, must therefore at the relevant time (i.e. the hearing of these proceedings) be ‘required’ for the purpose of reconciling their exercise with the exigencies of the common good. Not only does the phrase suggest that the legislative measures may have a certain in-built obsolescence, since the ‘requirement’ for same could disappear after a passage of time, but it would seem also to feed into the concept of proportionality in the sense that while a particular measure may well assist or have assisted in reconciling the exercise of certain property rights with the exigencies of the common good while in pursuit of a social justice principle, it may not be ‘required’ in order to do so. That is consistent with the proportionality argument that constitutional rights should be interfered with, restricted or delimited as little as is necessary for the attainment of the desired social justice objective. However I will come to the question of proportionality as such in due course.

It is important to reach a conclusion as to the meaning to be given to the words “exigencies of the common good”. The plaintiffs accept as they must that it is for them to rebut the presumption that the scheme is reconcilable with the exigencies of the common good. They submit that there is nothing within the text of the relevant legislation to indicate what legislative objective consistent with anything which can be described as a common good is being pursued. They say also that in so far as the State may argue that a common good is achieved by the social justice principle behind the transfer of property from one class of persons to another, this is negated by the circumstances of the present case where the recipients are themselves very wealthy and prosperous business people. They rely on the absence of any identifiable need in respect of business tenants in the Ground Rent Commission’s report referred to already. These arguments in my view are predicated on a meaning being attached to the word “exigencies” which equates to something like absolute necessity. That would be going too far in my view, and a meaning far short of absolute necessity would be adequate, since otherwise the legislature would be under such a strict requirement of proof of absolute necessity in every instance where they wish to amend the law in relation to delimiting property rights that the situation would become impossible. Of course the Courts enjoy an ultimate supervisory role in ensuring that legislation passed by the Oireachtas is constitutional, but the Courts should be slow to in any way substitute its own view of what may or may not be required in order to reconcile the exercise of property rights with the exigencies of the common good. Until some point of absolute extremity is reached where legislation is patently and manifestly not in pursuit of any possible common good exigency, the Court should abstain from interfering with the role of the legislature in deciding what measures are needed. The present case is not such a situation. The Oireachtas can be seen over many decades by now as having in mind a social justice objective in the area of the relationship between landlord and tenant. The fact that a measure or a series of measures as part of an overall scheme has a consequence in some cases, such as the present one and other Shirley properties, where some persons already prosperous and even wealthy, are entitled to purchase at a fair price the residual interest of the landlord, as well as poorer persons, does not take the scheme outside of a common good exigency. I certainly have received no evidence to suggest that in anything like a very large number of cases, not to mention even the majority of cases, such a situation arises. The common good does not mean the good of all in the sense of every person without exception. In other words, the fact that some anomaly is thrown up by the scheme, such as where the first named defendant is a wealthy entity, does not mean that the legislation does not meet the exigencies of the common good in a broad sense.

It is also apparent that the Oireachtas have been of the view over decades that legislation of this kind, although each piece is individually distinct, is consistent with the exigencies of the common good. In relation to some such pieces of legislation the plaintiffs make no challenge. Their focus is on the later pieces to which they have referred. Their contention is really that with the passage of time the exigencies seen to exist many decades ago are no longer exigencies in a situation where many tenants are no longer impoverished and in need of a law which requires a landlord to hand over to the tenant his freehold in the property at what the landlord sees as an undervalue far removed from any real market value for the property. But that is not to say that the legislation no longer meets the exigencies of the common good overall. A passage from the judgment of Finlay C.J. in Tuohy v. Courtney [1994] 3 I.R. 1 appearing at p.47 is apt, where the learned Chief Justice states:

“The Court is satisfied that in a challenge to the constitutional validity of any statute in the enactment of which the Oireachtas has been engaged in such a balancing function, the role of the courts is not to impose their view of the correct or desirable balance in substitution for the view of the legislature as displayed in their legislation but rather to determine from an objective stance whether the balance contained in the impugned legislation is so contrary to reason and fairness as to constitute an unjust attack on some individual’s constitutional rights.”

There is an overlap with issues of proportionality in the passage quoted, but it is also relevant to the extent to which this Court should attempt to interfere in the exercise by the Oireachtas of its un doubted discretion in the matter of when it shall intervene legislatively in the interests or exigencies of the common good. A large measure of appreciation and deference must be allowed by the Courts in such an area. I have already referred to the judgment of the ECHR in James v. United Kingdom and I have set out some of the conclusions and have included some quotation. Even though that Court was looking at the legislative intention and policies pursued by the UK from the viewpoint of an international Court and for that reason was stating that these matters are largely matters for the local legislature to determine, this Court sees no reason not to do the same given the fact that the Oireachtas is uniquely positioned to determine what is or is not meeting a common good exigency in the broad sense contended for, and in so far as I am required to have regard to the case law of the ECHR in reaching my conclusions, I gladly do so in this instance, and am also of the view that the James case in large measure accords in any event with the jurisprudence of the Irish courts, albeit that the James case, as mentioned by Mr Fitzsimons, dealt with only residential tenancies, and not business tenancies.

I am satisfied that the impugned statutory scheme is one which must be seen as intended to reconcile the exercise of the plaintiffs’ property rights with the exigencies of the common good, and I am not satisfied that the presumption of constitutionality which attaches to the legislative scheme in that regard has been rebutted. For the reasons set forth at some length already I am satisfied that a social justice principle lies behind the legislation, even one that endures still, and it would be difficult to demonstrate in that situation that nonetheless the legislation does not meet the exigencies of the common good, by saying that there has not been shown to exist a particular need on the part of the first named defendant to have the benefit of the scheme. While the issue of proportionality and that involving the concept of the common good are somewhat overlapping, it is necessary to address the proportionality issue separately.

The test of proportionality nowadays is generally accepted as being properly expressed by Costello J. (as he then was) in Heaney v. Ireland [1994] 3 I.R. 593 at p. 607, where the learned judge stated:

“In consideration whether a restriction on the exercise of rights is permitted by the Constitution, the Courts in this country and elsewhere have found it helpful to apply the test of proportionality, a test which contains the notions of minimal restraint in the exercise of protected rights, and of the exigencies of the common good in a democratic society. This is a test frequently adopted by the European Court of Human Rights (see for example Times Newspapers Ltd v United Kingdom [1979] 2 EHRR 245) and has recently been formulated by the Supreme Court of Canada in the following terms. The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means must pass a proportionality test. They must:-

(a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations;
(b) impair the right as little as possible; and be such that their effects on rights are proportional to the objective: Chaulk v, R [1990] 3 SCR 1303 at pages 1335 and 1336.”