Judgment
Title: | C -v- Minister for Social Protection & anor |
Neutral Citation: | [2018] IESC 57 |
Supreme Court Record Number: | 89 & 98/16 |
High Court Record Number: | 2013 6753 P |
Date of Delivery: | 11/28/2018 |
Court: | Supreme Court |
Composition of Court: | Clarke C.J., O'Donnell Donal J., McKechnie J., MacMenamin J., O'Malley Iseult J. |
Judgment by: | Clarke C.J. |
Status: | Approved |
Result: | Other |
Details: | Judgment also by McKechnie J. |
| Judgments by | Link to Judgment | Concurring | Clarke C.J. | | O'Malley Iseult J. | O'Donnell Donal J. | | Clarke C.J., McKechnie J., O'Malley Iseult J. | MacMenamin J. | | | |
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THE SUPREME COURTRecord No: 89/2016
Clarke C.J.
O’Donnell J.
McKechnie J.
MacMenamin J.
O’Malley J.
Between/C
Appellant
And
The Minister for Social Protection, Ireland and the Attorney General
Respondents
Judgment of Mr. Justice Clarke, Chief Justice, delivered the 28th of November 2018
1. I agree with the judgment of O’Donnell J. both as to the conclusions reached and as to the reasoning leading to those conclusions.
1.2 I also agree with the observations made by McKechnie J. in his concurring judgment as to:-
(a) The exceptionality of the circumstances in which it would not be appropriate to make an immediate declaration of unconstitutionality and the reasons why a declaration should be made in this case today;
(b) The undesirability of a Minister, either directly or indirectly, seeking to engage with the Court on the form of legislation which might be proposed in circumstances where a declaration of inconsistency with the Constitution either has been made on a deferred basis or is due to be made after an adjourned period following on from the delivery of a judgment determining such inconsistency; and
(c) The fact that it may be necessary, in an appropriate case, to explore in greater detail the proper approach to be adopted in cases such as Murphy v. The Attorney General (1982) IR 241 and, indeed, this case where part of a statute is declared inconsistent with the Constitution, thus giving rise to a situation where the remainder of the statute is in force but in a form which was not contemplated by the Oireachtas.
1.3 It certainly does not follow that the constitutional justice of cases such as those mentioned at (c) above necessarily requires that a person be entitled to the full benefit of a statute in a form which might never have been enacted (or at least enacted in the same way) had the impugned provision been known to be inconsistent with the Constitution at the time of the passage of the legislation concerned. Such an approach underlies the view expressed by O’Donnell J. in his judgment, with which I concur, that persons who have not challenged the provision in question cannot expect to obtain a windfall gain because it happens to be struck down in part. But it also follows that a court may have to do the best it can in fashioning a just solution in all the circumstances of the case.
1.4 It would be wrong, for the reasons identified by McKechnie J. in his judgment, to attempt to second guess the precise measures which the Oireachtas might have introduced had it been aware that the provision now struck down was inconsistent with the Constitution less still to engage with the question of the measures which the Oireachtas might now consider putting in place given the declaration of inconsistency with the Constitution which is to be made today.
1.5 However, it is sufficient for present purposes to acknowledge that there are a wide range of potential measures which might have been or might now be introduced which would fall short of conferring on Mr. C the entitlement to obtain a full pension. To hold that he is retrospectively entitled to a full pension as a consequence of the declaration of inconsistency with the Constitution being made today would, therefore, be to confer a windfall gain on him.
1.6 Against that background I am in agreement that the sum of €10,000 proposed in the judgment of O’Donnell J. meets the justice of this case but, like McKechnie J., I would reserve the right to revisit the precise approach which may be appropriate in cases such as this should that question arise again.