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: | O'Donnell Donal 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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AN CHÚIRT UACHTARACH
THE SUPREME COURT
89/2016
Clarke C.J.
O’Donnell J.
McKechnie J.
MacMenamin J.
O’Malley J.
P.C.
Appellant
AND
The Minister for Social Protection, Ireland and the
Attorney General
Respondents
Judgment of O’Donnell J. delivered the 28th day of November 2018
Introduction
1 On 27 July 2017, this court delivered a judgment (MacMenamin J.; Denham C.J., McKechnie, Clarke and O’Malley JJ. concurring) on the substantive appeal from the decision of the High Court, which had refused to dismiss the challenge to the non-payment of State pension (contributory) to the appellant pursuant to s. 249(1) of the Social Welfare (Consolidation) Act 2005 (“the 2005 Act”). The judgment of MacMenamin J. at para. 65 concluded that “the State may not operate a disqualification regime that applies only to convicted prisoners and, thereby, constitutes an additional punishment not imposed by a court dealing with an offender”. However, the court did not immediately proceed to make a declaration of invalidity in relation to s. 249(1), or any portion thereof. Instead, adopting a course which had been recently applied in the decision of N.H.V. v. Minister for Justice and Equality [2017] IESC 35, [2018] 1 I.R. 246 and discussed in Persona Digital Telephone Ltd. v. Minister for Public Enterprise [2017] IESC 27, (Unreported, Supreme Court, 23 May 2017), the court adjourned the matter for a limited period to allow the parties to make submissions on the question of the remedy, on the facts of the particular case.
2 While this development has been described as a “suspended declaration”, which is a term applied to a technique adopted in some jurisdictions, it is apparent that the approach of the court in the cases mentioned has been rather more tentative. A suspended declaration involves the making of a declaration of invalidity but directing that it shall not come into effect for a given period. In these cases, the court has not made a declaration, but rather has adjourned the question of determination of the appropriate remedy (which may include a declaration of invalidity). Indeed, in theory it may be open to the court to now declare that s. 249(1) was invalid and of no effect from the date of its passage into law, and did not authorise or permit any step taken after the delivery of the judgment. Nevertheless, the practical effect of the order made in this case is to indicate an unconstitutionality, but to leave in place the legislative provision, permitting prima facie the continued operation of a law considered to be inconsistent with the Constitution for the period between the delivery of the judgment and the making of any formal order. Viewed in that way, the order raises many of the issues involved in the making of suspended declarations of invalidity, and has been discussed in this case by reference to the scholarly debate in this jurisdiction and elsewhere on the appropriateness of making such orders, which is helpfully considered in the judgment MacMenamin J. delivers today.
3 The court took the course of adjourning consideration of the appropriate order to make in this case because, not alone were the provisions of statute themselves somewhat complex and the subject of repeated amendment and adjustment, but much of the argument in the case focussed upon the effect of the interaction between the provisions of the 2005 Act (as amended), and regulations made pursuant to the Act and contemplated by s. 249. Furthermore, the precise basis of the inconsistency with the Constitution identified in the judgment was itself rather nuanced. It is necessary, therefore, to touch briefly on those issues once again, to set out the issue to be determined in this judgment.
4 Section 249 of the 2005 Act can be traced back to the early days of a modern welfare state, and indeed to the provisions of the Old Age Pensions Act 1908. In effect, s. 249 provides for the disqualification from identified social welfare benefits of certain classes of persons, which prima facie disqualification was, however, subject to regulations which could be made under the Act. In broad terms, s. 249(1) provides for the disqualification of persons outside the State, and those undergoing imprisonment or detained in lawful custody, from receiving benefits under Part 2 of the 2005 Act. Section 249(2) makes similar provision in relation to any portion of benefit payable to a person in respect of a spouse where that spouse is either absent from the State or undergoing imprisonment or detained in legal custody. Similarly, s. 249(6) makes provision in respect of unemployment assistance, pre-retirement allowance and disability allowance while a person is resident temporarily or permanently outside the State, or once again, undergoing imprisonment or detention in legal custody. Section 249(1) was the operative provision in this case, and accordingly the one to which attention was focussed, but it is plain that the reasoning of the court is equally applicable to other disqualifications from benefits. Section 249(1) (as amended) provides, so far as is relevant:
5 However, regulations made under the 2005 Act have cut down the sweep of the statutory disqualifications provided for under ss. 249(1), (2) and (6). It can be said that this outcome was contemplated by the opening words of s. 249(1): “[e]xcept where regulations otherwise provide”. Neither the power to make such regulations, nor the terms of the regulations themselves, were, however, challenged in these proceedings. Instead, the existence of the regulations and their terms was an important linchpin of the appellant’s case. It is sufficient for present purposes to refer to Article 218 of S.I. 142/2007 – Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (“the 2007 Regulations”). That provides that s. 249 shall not operate so as to disqualify a person for receiving a series of benefits where a person is lawfully detained in any institution for the treatment of mental illness or infectious disease, with the exception of a person whose detention is consequent upon a finding of not guilty by reason of insanity under the provisions of the Criminal Law (Insanity) Act 2006. Furthermore, s. 249 does not apply where a person was detained in lawful custody in respect of his or her being charged with a criminal offence, and the charge is subsequently withdrawn or he or she is acquitted. Finally, even in a case where detention is consequent upon a conviction, the disqualification in respect of certain benefits does not apply if the imprisonment is undergone as an alternative to payment of a fine. The clear thrust of the regulations, therefore, was to cut down the sweep of the disqualification under s. 249 and, in broad terms at least, to limit it to the case of a person convicted and sentenced to imprisonment for a criminal offence, or tried for a crime and found not guilty by reason of insanity. Since, however, such persons were not disqualified for disability allowance by virtue of the provisions of s.249(1A)(c) of the 2005 Act, the practical consequences of the exemptions contained in the regulations appears to be that the only persons to whom the s. 249 disqualification provision applied were those sentenced to imprisonment by a court following lawful conviction.
6 It becomes apparent, on consideration of the somewhat complex provisions of the 2005 Act and the 2007 Regulations, that, since most of the benefits are contributory and in the nature of a pension, that the class of person likely to be affected will be a person of such an age as to otherwise be entitled to receive such benefits, who has sufficient history of employment to accumulate such benefits, but who has nevertheless been found guilty of a crime of sufficient seriousness to require a significant jail sentence. In this case, the appellant was convicted on a number of counts relating to serious offences committed against a family member. He was sentenced to a lengthy term of imprisonment, and his anticipated release date is in 2020.
7 The appellant challenged the provisions on a number of grounds, but significantly for present purposes, the court did not hold for the appellant on the wider grounds asserted, but rather determined that the effect of the narrowing of the disqualification by the 2007 Regulations was to render the disqualification a further punishment for a criminal offence. This, the court concluded, was an interference with the administration of justice, since the process of trial, adjudication and sentence are integral aspects of the administration of justice in criminal matters, consigned by the Constitution to the courts, and which cannot be conferred upon any other body. It followed from this reasoning that if the disqualification had not been limited to persons convicted, but if, for example, it included other persons lawfully detained by the State, and whose accommodation and upkeep was therefore paid for by the State, or if the disqualification was imposed by the court at the sentencing stage rather than by statute, then such provisions might pass constitutional muster. On this reasoning, there was nothing per se offensive to the Constitution in the State excluding payment of (at least some) benefit to a person whose detention was provided for by statute, and equally nothing offensive in the idea that in the case of persons convicted and sentenced to imprisonment, such an order could in an appropriate case be made by a sentencing court. Furthermore, since the unconstitutionality identified was located in the interaction of the regulations and the statute, questions necessarily arose as to how any determination of the inconsistency of the resulting situation with the Constitution could or should be remedied. For these reasons and others, it was understandable that the court adopted the course of adjourning consideration of the appropriate order to be made.
Submissions of the parties
8 This court has now had the benefit of detailed submissions by the parties as to the appropriate orders to be made. Full submissions have addressed the jurisdiction to suspend any declaration of invalidity, or to make a determination of inconsistency with the Constitution, but adjourn the making of a declaration of invalidity. It is useful, therefore, to address that question first.
9 The appellant’s starting position is that, although the catalyst for the finding of unconstitutionality is to be found in the terms of the 2007 Regulations, there is no basis for declaring invalid only those portions of the regulations which limited the statutory disqualification. That would be to penalise persons not before the court and who had never had the opportunity of addressing argument on the issue. The focus of the case before the court should be on the provisions of s. 249(1), or more precisely that portion which imposed a disqualification in the case of imprisonment on conviction. Whatever its effect when enacted, it now applied only to convicted persons, and once that was acknowledged, the court should proceed immediately to declare the section invalid, or at least make a declaration of invalidity in respect of that portion applicable to imprisonment, since no issue arose in this case in relation to disqualification where a person was outside the State. The appellant also says that it follows, then, that he is entitled to receive damages including, but not limited to, the amount of the pension unpaid.
10 The appellant points out that the Constitution says nothing about suspending declarations of invalidity. Insomuch as the Constitution addresses the consequences of any judicial finding of invalidity, it does so in the terms of Article 15.4, which provides in the first place a prohibition on the enactment by the Oireachtas of any legislation which is in any respect repugnant to the Constitution. Article 15.4.2° then provides:
“Every law enacted by the Oireachtas which is in any respect repugnant to this Constitution or to any provision thereof, shall, but to the extent only of such repugnancy, be invalid.”
11 The appellant accepts that techniques for suspending a declaration of invalidity have been adopted in other jurisdictions such as South Africa and Canada. In the case of South Africa, the power is expressly conferred by the Constitution itself. While there is no such express provision in the Canadian Charter of Rights and Freedoms, the appellant argues that the constitutional order in that jurisdiction is so different from that obtaining here that it cannot be a guide for an Irish jurisprudence. Instead, it is said that the Irish courts have always adopted the simple and, I think it is implied, principled clarity of the immediate declaration of invalidity, and that there was no reason to depart from that position. On this view, s. 249(1)(b) was invalid, and indeed ought to have been declared invalid as of 27 July 2017, and should in any event be immediately declared invalid.
12 I agree that this matter must be approached as a matter of interpretation of the Irish Constitution. Nevertheless, the Canadian experience in particular is useful in identifying the type of cases in which it has been thought, at least in that jurisdiction and others, to give rise to a type of problem where an immediate declaration of invalidity would cause substantial difficulty. Some of the issues were reviewed in Schachter v. Canada [1992] 2 S.C.R. 679. There, a male parent who intended to stay at home to care for his new-born child contended that legislation unlawfully discriminated against him in that it only permitted maternity leave payments to be made available to a mother, while at the same time a similar benefit was available (under a separate and later statutory provision) to adoptive parents on a gender neutral basis. In that case, the leave could be shared between the parties as they saw fit. This raised a problem which is often encountered in equality claims, and in particular those in which it is suggested that the constitutional infirmity lies not in the specific provision, or the grant of a benefit granted by it, but rather by the fact that it is under-inclusive, in that the benefit does not extend to all the people who are similarly situated and who therefore as a matter of equality should be entitled to it. However, to merely strike down the provision would not benefit the excluded persons, but rather would penalise the persons who already received and were entitled to receive the benefit. A variant of this issue arises in this case in relation to the argument that the provisions of the 2007 Regulations, which reduced the scope of the statutory disqualification, should be struck down, as opposed to striking down the disqualification contained in the 2005 Act. This would broaden the disqualification outside the case of convicted prisoners, and thus arguably remove the source of the unconstitutionality identified, but at the price of disqualifying persons who hitherto had been entitled to receive social welfare, which is, to say the least, an unattractive outcome. In Schachter, a similar problem could be identified: if the statute was struck down, then no natural parents would be entitled to maternity benefit. Hence, it became necessary to consider whether that was the only possible order a court could make in the light of its findings that the failure to extend the benefit to natural fathers was incompatible with the Charter.
13 The Supreme Court of Canada held that it could not declare that natural parents were entitled to benefit on the same basis as adoptive parents. That would be to encroach on the sphere of the legislature and to do something that the legislature could have done but did not do. The only remedy available was to declare the invalidity of the provision. However, the majority of the court considered that the court was entitled to suspend that declaration of invalidity to allow parliament to amend the legislation in a manner consistent with the obligations of the Charter as interpreted by the court. It is important to recognise that this suspension of the declaration had the effect of allowing a situation, determined to be incompatible with the Charter, to continue and to have effect for a limited time. Natural parents could only obtain maternity benefits for the female partner. In effect, it was considered that that situation, determined by the court to be inconsistent with the Charter, was preferable in the short term to wholesale removal of benefits from parties entitled to it, even though such removal, though brutal, would not be inconsistent with the Charter obligation of equality. All natural parents would be treated equally, though equally badly. In deciding instead to suspend the declaration of incompatibility, the Canadian Supreme Court was extending a technique adopted in previous cases where the striking down of the provision posed a potential danger to the public. One example given has resonances in recent Irish litigation. In R v. Swain [1991] 1 S.C.R. 933, the court struck down provisions for the automatic detention of a person acquitted by reason of insanity because of the failure to provide for some sort of hearing for consideration of whether such detention was necessary in any individual case. However, to have removed the only statutory provision permitting detention of all individuals found not guilty by reason of insanity would have posed a clear danger to the public. Accordingly, the court suspended the declaration of invalidity to permit remedial legislation. A further category in which this technique had been considered applicable was where the striking down of the legislation would pose a threat to the rule of law. Here, reference was made to the decision in Re Manitoba Language Rights [1985] 1 S.C.R. 721. In that case, it had been found that the failure to translate legislation in Manitoba into French was a breach of the Manitoba Act 1870, and, furthermore, that such breach meant that no such legislation was in force and effect. Faced with the prospect that the logical consequence of the determination was to render all legislation enacted in this way ineffective, the court made a declaration of invalidity, but suspended it and allowed a quite generous period of time to remedy the issue.
14 These categories are not fixed, and the jurisprudence has developed. There are other circumstances in which the Canadian court will make a suspended declaration. As discussed in the judgment of MacMenamin J., the technique as applied in Canada is now arguably the norm rather than the exception. It is noted in Hogg, Constitutional Law of Canada, Vol. 2 (5th edn., Carswell, 2007) at p.187 that, “while s. 52(1) [of the Constitution Act 1982] requires a court to hold that an unconstitutional statute is invalid, the courts have assumed the power to postpone the operation of a declaration of invalidity. When a court exercises this power, the effect is to grant a period of temporary validity to an unconstitutional statute, because the statute will remain in force until the expiry of the period of postponement”. However, Hogg notes that the law has developed beyond the category of cases contemplated in Schachter v. Canada [1992] 2 S.C.R. 679 to a more general position of ‘dialogue’ in which the court prefers the legislature to design an appropriate remedy. It is observed however “this is not an abdication of responsibility by the court, because if the legislature chooses to take no action during the period of suspension, the court’s declaration of invalidity will take effect. But the period of suspension gives to the legislature the first opportunity to remedy the constitutional wrong”. It is not necessary to consider whether such a development would be possible or desirable in the Irish context. What is involved in this case, while perhaps relatively uncharted territory in this jurisdiction, is minimal in comparison to developments in other jurisdictions, the merits of which in an Irish context would require much thought. These cases are enough however to illustrate the problem to which the suspended declaration is addressed, and which are replicated in other jurisdictions with a system of judicial review of legislation. They are all examples of pressing situations where there were strong countervailing considerations, and where the grant of a declaration with immediate effect would cause a very serious problem, which might be considered to be more damaging, at least in the short term, than the unconstitutionality identified.
15 Even more extreme circumstances could be envisaged and have arisen in other jurisdictions. One example is where the flaw relates to the election, or legal constitution, of a legislature, and where immediate invalidity might be simply incapable of remedy, or worse, might remove the only mechanism for remedying the flaw. But the fact that the solution proposed, of suspending the declaration of unconstitutionality in such circumstances in other jurisdictions seems reasonable and sensible, even necessary, does not mean it is constitutionally permissible under the Irish Constitution. Indeed, it is argued here that what is sensible and reasonable must give way to principle, no matter how inconvenient the result. It would not be fair to dismiss this argument as merely a narrow and inflexible absolutism. Part of the appeal of constitutional guarantees of rights is the belief that they contain enduring truths which cannot and should not be compromised. This is indeed a familiar argument for the rule of law: justice must be done whatever the consequences. But that in turn only leads to a deeper question as to what the doing of justice entails. This may be a particularly troublesome question where the issue involves not just the resolution of litigation between the parties but where the outcome may directly affect many others not before the court.
16 It is interesting, if no more, that the terms of s. 52 of the Canadian Constitution Act 1982 bear resemblance to Article 15.4.2° of the Constitution, although Art 15.4.2° is, if anything, in stronger terms. Section 52(1) provides:-
“The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.”
It is apparent that the Canadian courts have interpreted this provision as authorising the making of suspended declarations in particular cases. However, it cannot be asserted that the text of s. 52 leads inevitably to the conclusion that the courts of Canada had a jurisdiction to suspend a declaration of invalidity, and still less does it follow that Article 15.4.2° must be read to lead to the same result. It is clear that there is scope for differing approaches, and the issue must be approached by reference to principle, the terms of the Constitution and the legal order which it establishes, and in that context with such assistance as may be gained from developments elsewhere.
17 N.H.V. v. Minister for Justice and Equality [2017] IESC 35, [2018] 1 I.R. 246 was itself an unusual case. The unconstitutionality identified in the judgment related not to a particular provision standing alone but to the interaction of two different statutory provisions, neither of which was per se offensive to the Constitution. Asylum seekers were prohibited from working while their case was being processed through the refugee system. There was no time limit on the asylum process for the determination of applications. Neither provision was itself necessarily offensive, but the combined effect was that the ban on work on asylum seekers was unlimited, and this, the court concluded, was inconsistent with the Constitution. It followed, from the reasoning of the court, that the unconstitutionality could be addressed either by imposing some qualification or limitation on the employment ban, or by maintaining an absolute ban while a case was in the asylum system, but limiting the period for that process. The incompatibility with the Constitution could be addressed in theory by removing one or other provision. While the court’s jurisdiction was simply to make an order and to ensure that the aspect of the legislative machinery found inconsistent with the Constitution was removed, that could be done in a number of different ways. If, for example, the executive and legislative branches had decided to limit the period for processing refugee applications, it would not have been necessary to make a formal declaration of invalidity of legislation. There was therefore some logic, and it was arguably consistent with the separation of powers, to allow some time for the other branches of government to choose the method by which the law could be brought into conformity with the Constitution, since the underlying policy choice is not in principle a matter for the courts, but rather for the executive and legislative branches. Where two or more provisions of legislation, standing alone are unobjectionable, but which in combination exceed what is constitutionally permissible, it does not seem inappropriate, to allow the legislature the opportunity of choosing which provision should fall. It is of course a step further to allow an opportunity to amend one or other piece of legislation to bring the overall situation into conformity with the court’s judgment. In a clear and simple case, this may be straightforward. The amendment may be obvious to all concerned. But it must be recognised that in more complex situations, there is a temptation for the legislative and executive branches to seek to put forward an amendment and seek the courts’ approval of it. It is however not normally a function of the court, or any part of the litigation process, to address the compatibility with the Constitution of some new proposed piece of legislation (which has not been the subject of any challenge) and it may be that the appropriate course for a court to take in such circumstances is to adopt a default position that, unless it is demonstrable that the course adopted makes it unnecessary, the court should proceed to declare the provisions invalid, and to make a straightforward declaration to this effect.
18 It is apparent therefore, that to date the Court has acted cautiously in this regard and that N.H.V. v. Minister for Justice and Equality [2017] IESC 35, [2018] 1 I.R. 246 is not itself authority for more ambitious use of the technique. The presumptive approach is that other than in cases of references pursuant to Article 26, the manner in which courts exercise jurisdiction to ensure that legislation post enactment with the Constitution is compatible with it, is through inter partes litigation. It is for the appellant in the first place to identify the provision challenged, and for the court to determine in light of argument whether that challenge or any modification thereof is sustained. If the challenge is upheld, then the normal outcome will be the invalidation of the provision identified by the appellant and no more. This indeed was set out in the further ruling delivered by Clarke C.J., when the matter in N.H.V. returned to this court. In an ex tempore judgment on 30 November 2017, Clarke C.J. pointed out the exceptional nature of the adjournment and continued: -
“Exceptionally the Court did not take the normal course of immediately declaring the relevant legislative provisions to be unconstitutional thus rendering them of no continuing legal effect. Rather, the Court in its judgment recognised that there were choices to be made as to how the difficulty which had been identified by the Court in its judgment was to be addressed and that at least the first port of call in making those choices rested with the legislature.
3. It does have to be strongly emphasised that the general rule must be that, on finding a measure of legislation to be unconstitutional, the Court should immediately declare it to be so and thereby render it inoperative under the terms of the Constitution. While the Court has not as yet had the opportunity to consider in any detail the parameters of any exceptional circumstances which might allow the Court to depart from that general proposition, nonetheless it must be made clear that the circumstances in which it would be appropriate for the Court not to follow the general rule must necessarily be exceptional. The Court has identified this case as one in which such exceptional circumstances did arise.
4. However, in the Court’s view, there are significant limitations on the appropriate scope of further interaction between the Court and the parties. I appreciate that it has not been sought on the part of the State that the Court should involve itself in any approval or discussion as to the merits of the choices which the State has now made or the choices which were available to the State at the time when the Court gave judgment. But nonetheless, it is important to emphasise that the whole point of the affording of a period of time to the State was to allow the Legislature to make the decisions which it has to make. It must be emphasised the Court has no role in those matters.”
In the circumstances, the court indicated simply that it would sit again on Friday 9 February 2018 to make the declaration of invalidity sought by the applicant, and in the event did so.
19 While therefore it is apparent that what occurred in N.H.V. v. Minister for Justice and Equality [2017] IESC 35, [2018] 1 I.R. 246 is at perhaps the furthest end of the spectrum from the type of suspended declaration and so-called constitutional dialogue contemplated by some authors and authorities, it nevertheless must be accepted that stripped to its essence, even the limited development in N.H.V. has some of the features of the suspended declaration which has given rise to legitimate questions of principle. This issue arises because constitutional litigation, while conducted inter partes, has effect erga omnes. As it happened, the plaintiff in N.H.V was no longer an asylum seeker by the time of the court’s decision, and indeed had been employed, and accordingly a declaration of invalidity would have conferred no direct benefit upon the only plaintiff before the court. On the other hand, others in the system would have benefitted from an immediate declaration of invalidity. Therefore, those persons, some at least of whom could have asserted the unconstitutionality as successfully as N.H.V., since their situation may have been just as extreme, and others, who although their personal situation would not necessarily have grounded a challenge, would nevertheless have benefitted from the invalidity of the legislative ban, were all deprived of that benefit by the fact that the court had adjourned the making of the order declaring the provision invalid. The statutory ban on employment remained in place for that period. The threshold question arises as to whether even this relatively minimal step is consistent with the Constitution. The appellant in this case asserts that it is not.
20 The language of Article 15.4.2° does not put the issue beyond doubt, but it does perhaps offer some guidance. While it requires the invalidity of any legislative provision found repugnant to the Constitution, it also seems to require that the remedy be precisely tailored to exercise the offending element and no more. Thus the provision may be invalid “but to the extent only of such repugnancy” (emphasis added). This is a clear direction to match the remedy to the wrong. Furthermore, the jurisdiction to determine repugnancy of post–1937 legislation and the inconsistency of legislation prior to that date is conferred upon the ordinary courts of law, and not for example on a special constitutional court or administrative body not necessarily composed of lawyers. The function of those ordinary courts is to administer justice, in most cases by litigation inter partes. The administration of justice between parties, is extended by the 1937 Constitution to matters of constitutional validity. Thus it is provided that the High Court, by Article 34.3.1° shall have “full and original jurisdiction” to determine all matters whether in law or fact, civil or criminal. By the following subsection, it is provided that jurisdiction “shall extend” to the question of the validity of any law having regard to the provisions of the Constitution. It follows therefore, that the Constitution contemplates that the issue of constitutional validity will be determined in the courts of justice and by implication, by reference to the procedures, techniques and approaches adopted over years in the administration of disputes, whether of private or public law. It is true therefore that the Constitution shall not expressly provide for the suspension of any declaration of invalidity, but in fact the Constitution says nothing about the making of a declaration, at all. A declaration is a discretionary relief in law or equity, the availability of which has been extended and adapted both by legislative and judicial developments: see for example the observations of Walsh J. in Transport Salaried Staff’s Association v. CIE [1965] I.R. 180 at p. 202. While, therefore the Constitution by Article 34.3.2° does explicitly restrict to the Superior Courts the jurisdiction in constitutional challenges to validity of legislation, it says nothing about the proceedings in which such challenges may be mounted or about the rules for such proceedings, whether general or specific, such as the principles relating to the establishment of locus standi, mootness, the rule of double construction, or the approach that requires the court to resolve a constitutional issue last. All of these matters, and others, are features of the administration of justice, and developments which have been made incrementally, sometimes with the benefits of considering developments in other jurisdictions. Human experience throws up an endless variety of situations, and not all of them can be expected to arise for the first time in this jurisdiction. It is, however, not unknown for the discretionary remedies in equity to be tailored to the specific circumstances to ensure that justice is done in the particular case, sometimes by reference to the rights and interests of parties not before the court. This, in principle, can apply with greater effect, when in inter partes litigation, an order is sought with the effect erga omnes, rendering invalid a piece of legislation of general application. Sometimes a breach of a private law right is established but an injunction is withheld. In other cases, the making of a final order may be adjourned for a period to allow arrangements to be made to avoid an unduly harsh outcome. I see no reason why in an appropriate case, where justice requires a measured response, and a step such as adjournment of a final order, which is available to the court, that such a step could be regarded as impermissible in constitutional matters alone. An analogy can perhaps be drawn with the treatment of illness and disease. There are many conditions which are terminal, or which can only be dealt with by radical amputation, but that is no reason to refuse to consider surgery, or less invasive therapies if appropriate. If the legal problem is complex, there is no reason why the remedy should not be nuanced. If that is the position in private law, it cannot be excluded in public law, where the issues may be more difficult and the consequences more far-reaching.
21 The objection that flexibility of a remedy in constitutional challenges offends against principle therefore, is not in my view persuasive. Experience of litigation and disputes more generally, suggests that some cases may not provide the clear cut innocent victim/malicious wrongdoer narrative, more regularly encountered in popular entertainment. More realistically, the system of administration of justice goes to some length to seek to remove unnecessary issues and isolate clear cut issues to which definitive answers can be given. Justice permits, and indeed may require, that a very clear cut decision be rendered in such cases. But it would be foolish not to recognise that there are many situations where the issues require complex and measured solutions. The reason natural justice requires adherence to the rule of audi alteram partem is not procedural formalism: it is because often the other side will have something to be said in their favour, which must be heard, considered, and factored into the decision. Justice is traditionally represented as bearing scales, suggesting that justice is both balanced and measured. I recognise that the force of the argument that the suspension of a declaration of invalidity has the effect of permitting a situation of unconstitutionality, identified and determined by the only body empowered to do so, to continue and have effect. But the fact that litigation determined inter partes has effect erga omnes may mean that the court should take all such matters into account. The system established by the Constitution, as judicially interpreted, is a balanced one, which recognises other values as well as the identification of legislation in some respect repugnant to, or inconsistent with, the Constitution. Thus for example, a provision may be in theory unconstitutional, but if not challenged in a properly constituted proceedings by a party entitled to do so, and before a court vested with the jurisdiction in that regard, a court, although established under the Constitution and bound to uphold it, is not empowered to do anything about it no matter how patent the unconstitutionality. The rules of locus standi, and the requirement to reach constitutional issues last, and to a lesser extent, the double construction rule, all necessarily involve the judgment that the striking down of an unconstitutional provision must be balanced against, and sometimes outweighed by, other countervailing factors. The obligation to render invalid any offending provision of legislation, which is determined to be repugnant to or inconsistent with the Constitution is, a function of the highest importance. As emphasised by Clarke C.J. in the ruling in N.H.V., the normal remedy when unconstitutionality is identified would be the consequential declaration of invalidity of the provision with immediate effect, and that is the position from which the court should be slow to depart, and against which any other remedy should be measured and justified. But I see no justification for an a priori rule that this is the only remedy available. In this regard, I agree with the observations of MacMenamin J. The precise circumstances in which it is appropriate to make any other order, and in particular to suspend a declaration of invalidity, is however, a matter to be considered carefully, cautiously, and on a case by case basis, and will be exceptional. I would, however, reject the argument that it is in principle impermissible for a court to make any other order other than one of an immediate declaration of invalidity.
22 However, it becomes apparent that this discussion is somewhat beside the point in this case, although, as it transpires, it is a useful entry point for analysis of the issue which is to be determined here. The problem in this case, if there is one, will not be addressed by deferring the determination of invalidity: no legislation taking effect prospectively can now address the fact that while imprisoned the appellant was disqualified from receiving benefit in circumstances which offended the Constitution, because of the effective limitation of the provision to convicted persons, and where the application of that disqualification was not a component of a sentence imposed by the court, with jurisdiction to try and sentence him. The problem, latent in this case, is, however, the closely related question of the impact of any declaration of invalidity (whenever that might be made) on the disqualification from benefit of the appellant pursuant to the invalidated section while it was in force.
The provision to be declared invalid
23 Before addressing that question, it is necessary to address an argument raised as to the nature of the declaration to be made, and in particular whether the declaration of invalidity should be made in relation to s. 249(1)(b) or that portion thereof relating to imprisonment, or alternatively, a declaration of invalidity of those parts of the 2007 Regulations which had the effect of reducing the scope of the disqualification established by s. 249 to convicted persons, or those broadly subject to detention as a result of a verdict in respect of a criminal trial. If I was persuaded that the court had no option but make a declaration of invalidity operating in an indiscriminate fashion as contended for, so that the fairness of the constitutional process was to be found only in the fact that a remedy operated randomly and indiscriminately, I would have given serious consideration to this question, or at least to the question of whether, if the appellant had been unwilling to challenge the primary source of unconstitutionality, a court would be justified in refusing a declaration of invalidity of provisions, the constitutional frailty of which flowed only from provisions which the appellant had not challenged. However, taking the view I do of the flexibility of the approach which is available to the court, I consider it is appropriate in this case to make a declaration of invalidity of that portion of s. 249(1)(b) which disqualifies the appellant and persons in the same position from benefits while serving a lawful term of imprisonment in respect of a sentence imposed upon them, having regard to Articles 34 and 38.1 of the Constitution. This is the provision challenged by the appellant in these proceedings. Having succeeded in his argument, the most appropriate remedy for the appellant should be the declaration of invalidity of the particular subsection which applies to him.
Damages
24 The next issue, however, is what follows from such a declaration. The appellant seemed to assume that it necessarily follows that he is entitled to damages as an inevitable consequence of the making of a declaration of invalidity. But that raises a very important issue. Damages are normally available for a civil wrong. Certainly the violation, by agents of the State, or persons for whom the State is responsible, of the personal rights of the citizens, such as bodily integrity, privacy or otherwise, will give rise to and has given rise to actions for damages. But here, it is not asserted that there is a fundamental right involved. There is no personal right to the passage by the Oireachtas of legislation which may later be found unconstitutional by a future court. It may be said to be the entitlement of every citizen (having standing to do so) to challenge legislation, but that does not mean that the passage of such legislation, without more, gives rise to an actionable claim for damages.
25 As a matter of historical fact, the declaration of invalidity has not normally led, without more, to an award of damages. To take only a few examples, the well-known case of Blake v. Attorney General [1982] I.R. 117, discussed in the judgment of MacMenamin J., resulted in the striking down of parts II and IV of the Rent Restrictions Act 1960. However, owners of properties affected by the legislation, and whose rights it breached, did not thereby, or at all, obtain an entitlement to award of damages for the loss, which ex hypothesi they had suffered. Other examples are the landmark decisions in McGee v. Attorney General [1974] I.R. 284 and De Burca v. Attorney General [1976] I.R. 38. Mrs McGee and many other citizens were adversely affected by the prohibition on importation of contraceptives and many others were convicted by juries composed in accordance with the Juries Act 1927, but no one obtained damages. This issue was helpfully discussed in the judgment of Budd J. in An Blascaod Mór Teo. v. Commissioner of Public Works (No. 4) [2000] 3 I.R. 565. There, the High Court held that the provisions of An Blascaod Mór National Historic Park Act 1989 were unconstitutional, and this conclusion was upheld by the Supreme Court. Thereafter, the plaintiffs claimed consequential damages. Budd J. held that the passage of legislation subsequently found invalid, without more, did not amount to the tort of misfeasance of public office, and although the Oireachtas could not be given absolute immunity from claim, there were valid public policy reasons why damages did not automatically flow from a finding of invalidity. Thus, at p. 581 of the report, he said:-
“There is therefore little justification for a regime of strict liability for infringement of a constitutional right where such rights are competing and in conflict. In such circumstances "ubi ius, ibi remedium" is too simple a formula and strict liability would in many cases be too low and easy a threshold to reach.”
At pp. 583 to 584 he considered the closely related question of the liability of a Minister for an invalid administrative action, and quoted the judgment of Henchy J. in Pine Valley Developments v. Minister for the Environment [1987] I.R. 23:-
“I consider that the exemption of the State from liability in damages for the Minister's invalid planning permission is not alone not an unconstitutionality but is in harmony with the due operation of the organs of government established under the Constitution”.
Budd J. concluded:-
“If the Minister enjoys a quasi-immunity in respect of administrative acts, it seems that only in exceptional circumstances could the State be made liable for damages in respect of invalid legislation where the legislature is involved in the balancing of the protection of the right of private property against other obligations arising from the common good.”
26 The discussion was comprehensive, and I cannot therefore treat that case as decided solely on the grounds that damages were not shown to flow directly from the legislation. In any event the matter is one for this court, and I find the reasoning helpful. The position tentatively arrived at in that case was observed to be consistent with the approach of the law of the European Union. Interestingly, although not cited in that case, the same conclusion was arrived at in Canada. Thus, in Schachter v. Canada [1992] 2 S.C.R 679 at p.720, Lamer C.J. concluded that:-
“An individual remedy under s.24(1) of the Charter [which established and permitted a personal claim for damages] will rarely be available in conjunction with action under s.52 of the Constitution Act, 1982. Ordinarily, where a provision is declared unconstitutional and immediately struck down pursuant to s.52, that will be the end of the matter.”
As the formulation in both the Irish and Canadian cases suggest, this is a general rule, but it is not necessary here to consider the circumstances in which a court may depart from it. I am satisfied that the general principle that the mere finding of unconstitutionality does not give rise per se to a claim for damages, is applicable here, and accordingly the appellant’s claim for damages, made on that basis, must fail. It should be noted that the High Court did award nominal damages arising from a finding of unconstitutionality in Redmond v. Minister for Environment (No.2) [2006] 3 I.R. 1, but that decision was not considered by the Supreme Court, which dismissed an appeal in limine, and I would not regard it as setting a standard of an automatic entitlement to damages. Indeed, as set out above, I consider the opposite to be the rule, albeit subject to possible exceptions. Since the principle is a general one, it follows that there may be circumstances in which a court can consider that justice requires that the interests affected can only be properly weighed, and any wrong remedied, by the award of damages. I do not think it useful to speculate on the circumstances in which an award of damages might be made, since that issue was not canvassed in argument, and the facts giving rise to such a situation may be diverse. It is sufficient to record that the argument advanced was that damages arose automatically on a finding of invalidity, a contention which I consider erroneous. My conclusion that damages should not be awarded might be enough to resolve this case, since the appellant’s claim was for damages consequent upon the alleged invalidity, without more. In this respect, I agree with the judgment of my colleague MacMenamin J. However, in the course of argument, other possible bases for a claim were canvassed, and in the interests of completeness it is necessary to address them.
Claim to the statutory benefit
27 A related contention, canvassed in argument, is that while the declaration of invalidity to be made by this court does not itself give rise to a claim for damages, nevertheless the consequence of the declaration is to remove what was the only legislative prohibition on receipt of the benefit. The argument is that the structure of the 2005 Act is to confer a general benefit on members of the population who can satisfy certain criteria of age, employment, marital status or illness. The appellant in this case comes within the relevant group but was disqualified by the provisions of s. 249(1)(b), now however declared invalid and of no effect. Therefore, it is suggested that the appellant should be entitled to recover the sum, not as damages but rather as benefit to which he was entitled, and which was wrongly withheld from him, the only justification for such disqualification now having been removed. In terms of pleadings, this might involve the appellant claiming an entitlement to a benefit, the Minister defending that refusal of benefit by reference to s. 249(1)(b), and the appellant in reply asserting the invalidity of the provision. The outcome of the case, on this argument, would be that the appellant would become entitled to recover the benefits which had not been paid.
28 It is not, I think, unduly punctilious to point out that the case was not pleaded, or put, in this way. Instead, the appellant simply claimed consequential damages, to which, for the reasons and on the authority set out above, I consider they have no entitlement. In the circumstances of this case, and the blunt and absolutist basis of the appellant’s claim, it would not perhaps be unjust to dismiss the appellant’s claim for damages as pleaded, and leave any possible claim to entitlement to benefit to be explored, if at all, in further proceedings by the appellant, and any other person. However, the matter has been addressed in argument, and given the rather torturous course this litigation has taken, it is desirable the matter be resolved, if possible. The argument is closely related to the issues which have been debated at length. In any event the question of an entitlement to a person, disqualified from benefit pursuant to s.249(1)(b), is a matter which would inevitably come before this court, and is, moreover, not dependent on evidence of further argument. There will be a proliferation of claims, and the likelihood of confusion if there is a protracted period before the issue would be definitively resolved. Considerations of efficiency therefore suggest it should be addressed now.
29 I observe immediately that this type of claim is dependent on the quirk of the drafting technique adopted where legislation is found to be under-inclusive in that the capacity to obtain the benefit may depend on how the legislature, and more realistically the drafter, approached the legislation. Legislation may be framed as a general entitlement subject to a limitation subsequently impugned (everyone except X), but may just as readily have been drafted by conferring the benefit positively on only those intended to benefit (only those who are not X). In mathematical terms, 6 minus three produces the same result as 2 plus 1, but on this approach to invalidity, one outcome could be 6 (the limitation being struck down) or 0 if the entire provision falls, although the calculations produce the same result and the added factor (invalidity for excluding X) is common. There are those who say that such randomness of outcome is simply a by-product of the nature of the judicial function, and the limitations on it, but it is at a minimum a noteworthy feature of this area of law and perhaps a reason to be flexible in its application.
30 The question of the theoretical justification of suspending any declaration of invalidity is a useful introduction to this issue because the argument made against the suspended declaration is very similar to that advanced in favour of the determination of entitlement to benefit. It is argued that the declaration of invalidity means invalidity ab initio, that is, in this case, from the date of enactment, or in the case of pre –1937 legislation, from the period of coming into force of the Constitution. As a matter of law, therefore, it is argued that the particular provision, however well–established and acted upon, and irrespective of the nature of the invalidity, whether serious or more minor, must be treated as if it never existed, and as if on the making of the declaration of invalidity, the provisions somehow magically disappeared from the statute book. This, indeed, was the view articulated in the 19th century in the US by Field J. In Norton v. Shelby County (1886) 118 U.S. 425 at p. 426, he said:-
“An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection, it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.”
This approach has the undoubted virtue of clarity and indeed simplicity. But as Einstein is said to have observed, everything should be made as simple as possible, but not simpler. This discussion can however be short–circuited somewhat, since the issue has been addressed in a series of important decisions of the Irish courts, which are not sought to be challenged in this case, and which accordingly set much of the background for the consideration of this case. In essence, it is clear that a declaration of invalidity operates as a matter of law to establish the nullity of the provision from the date of enactment or the passage of the Constitution, as appropriate. That however does not establish per se the invalidity of actions taken on foot of such legislation at any time before its invalidity was determined by the court. As Chief Justice Charles Evan Hughes said in Chicot County Drainage District v. Baxter State Bank (1940) 308 U.S. 371, at p. 374:-
“The courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged decree. . . It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects, with respect to particular relations, individual and corporate, and particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are among the most difficult of those which have engaged the attention of courts, state and federal, and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified.”
31 In a number of important cases, this court has held that while the general rule is that a declaration of invalidity will also render null and void actions taken on foot of the impugned provision, the declaration of invalidity did not always necessarily nullify transactions or steps taken or even convictions arrived at on the basis of, or pursuant to procedures established, by legislation subsequently declared invalid.
32 In theory, the issue could have arisen in those cases in which important provisions of electoral law were found to be repugnant to, or inconsistent with the Constitution. On the facts, the issue did not precisely arise in O’Donovan v. The Attorney General [1961] I.R. 114, and the issue does not appear to have been recognised in that case. It was adverted to in the case of McMahon v. The Attorney General [1972] I.R. 69, where it was determined that the system of voting established by legislation enacted in 1923 was inconsistent with the constitutional guarantee of secrecy of the ballot. One issue raised in the dissenting judgment was the fact that such a finding could raise an issue as to the validity of all elections and by–elections since 1923, and it might be said a further question arose as to the capacity of the Oireachtas, itself elected under the now invalid procedure, to enact any curing legislation (or indeed any other legislation). The issue was touched on in the majority judgment, where it was noted that the plaintiff had not argued that there was any consequential invalidity. However, this might be thought to be a less than comprehensive answer to a difficult problem which had arisen in other jurisdictions. Notably, in Germany, the Bundesverfassungsgericht held, in 1963, in a case that has close points of comparison to the issue in the almost contemporaneous decision in O’Donovan, that the 1949 Electoral Law “had become” unconstitutional because it no longer corresponded to up to date demographic figures. However, the Bundesverfassungsgericht refused to annul the 1961 election on the ground, considering that the unconstitutionality “was not so evident” as to invalidate the previous apportionment: see the Second Apportionment Case (1963) 16 BVerfGE 130. Later, the High Court of Australia had to confront the same problem in Western Australia v. Commonwealth (1975) 134 C.L.R. 201, where the legality of the dissolution of the Houses of Parliament was challenged and established, but the court concluded that, “what had happened now could not be undone”. Previously, in Simpson v. Attorney General [1955] N.Z.L.R. 271, the New Zealand Court of Appeal had simply refused to set aside a parliamentary dissolution on grounds of “manifest public inconvenience”.
33 The issue arose much more clearly in the landmark case of De Burca v. Attorney General [1976] I.R. 38. It was decided in that case that the provisions of the Juries Act 1927 were unconstitutional. It is important to recall that while the case is most often associated with the removal of the gender discrimination contained in that Act, the decision also invalidated the property qualification established by the Juries Act. The extent of the unconstitutionality identified was extensive, and it followed, therefore, that the incompatibility of any juries selected under that provision with what had been held to be the requirements of a trial in due course of law, was neither insignificant nor trivial. Did this, however, mean that any conviction recorded by juries empanelled since 1927 must be treated as invalid, and were relevant persons released from custody, and those who had served sentences compensated? The court in De Burca had to address this question, not because it was a consequential claim of the plaintiffs (who had yet to be tried) but because it was invoked by the defendant as a ground for resisting the challenge. The court gave different reasons for rejecting the argument. O’Higgins C.J. asserted bluntly that such a prospect would not be permitted, consistent with the “overriding requirements of an ordered society”. Walsh J. offered the ingenious resolution that since no person who was disqualified from membership of a jury had sat on any jury, there was no constitutional infirmity in any subsequent conviction, while at the same time asserting that if the argument had not been rather fortuitously available, he would have preferred to follow the argument to its logical conclusion and invalidate all prior convictions, if that followed from the court’s decision.
34 In State (Byrne) v. Frawley [1978] I.R. 326, one such conviction was challenged. The court rejected the challenge, but divided on the reasons. Henchy J. addressed the argument that no member of the jury in Byrne’s case had been disqualified from participation and that therefore his conviction was not a consequential nullity. He considered that that argument was not persuasive, since the constitutional flaw identified in De Burca v. Attorney General [1976] I.R. 38 was not the presence of any such person on a jury but rather the fact that the jury would be drawn from a pool which was insufficiently representative of the population at large. Taking this approach, Henchy J. had then to address, in a very direct way, the claim that a consequence of the finding of invalidity in De Burca’s case meant that the conviction of Byrne by a jury empanelled under the 1927 Act must be treated as a nullity. Henchy J. pointed out that the trial had been underway at the precise time the De Burca case had been decided, and was indeed adjourned to consider the position. The applicant had elected to proceed with the trial. This conduct he considered precluded him from now asserting any invalidity. Byrne’s case presented particularly strong facts, but if the principle was limited to such facts, it would be of very little application. However, the court went on to observe that the same result would follow in any case, even if the trial and conviction occurred before the decision in De Burca was delivered. The case therefore established an important and more broad–ranging, principle. Although a person convicted must be able to challenge a conviction on the grounds of the unconstitutionality of the legislation creating the offence, or controlling the mode of trial, and if successful the conviction would be quashed. It did not follow that such a conclusion must be reached in all cases for all those affected, even those whose factual circumstances may be identical to those of the successful claimant. This was a far-reaching decision, the implications of which were not necessarily recognised at the time.
35 Although the decision that any person convicted by a jury empanelled under the 1927 Act could not challenge their conviction might now sit comfortably with the well-known decision of this court in A. v. Governor of Arbour Hill Prison [2006] IESC 45, [2006] 4 I.R. 88, that final convictions cannot be challenged on the basis of a subsequent determination of invalidity of a legislative provision, it is important to recognise it was not decided on that basis. Instead, it was treated as a case where the plaintiff was precluded from asserting, and could not benefit from, the invalidity even when such invalidity had already been established by the same court. It is notable that the proceedings in State (Byrne) v. Frawley [1978] I.R. 326 were State-side proceedings seeking an order of certiorari quashing the conviction, but that the conviction itself was separately under appeal. The decision of the court suggests emphatically, however, that if the point had been raised on the appeal, it would not have availed the applicant there either, even though the proceedings had not been concluded, and the conviction could not be treated as final, and thus falling within the principle established by A. v. Governor of Arbour Hill Prison. The decision of the Supreme Court in State (Byrne) v. Frawley is therefore clear authority that there is no absolute rule that once the constitutional invalidity of legislation is established, that all steps taken under it must be treated as a nullity.
36 The decision in A. v. Governor of Arbour Hill Prison [2006] IESC 45, [2006] 4 I.R. 88, discussed in more detail in the judgment of MacMenamin J., is a more elaborate treatment of the issue generally. That case established that even in the area of criminal law, the finding that a criminal offence, in that case created by the Criminal Law (Amendment) Act 1935, was inconsistent with the Constitution, did not mean that a person imprisoned on the basis of the conviction for that offence, could assert the nullity of the conviction, and claim release.
37 These cases are very important, since they establish beyond question that there is no automatic rule of consequential invalidity, and that certain matters, such as the finality of a conviction, or the failure to take a challenge, may preclude reliance on any invalidity subsequently established. However, both these cases occurred in the field of criminal law and involved attempts by a third party to claim the benefits of an invalidity established in other proceedings. Here, it is the appellant who has succeeded, and who claims for what he contends is consequential relief in the self- same proceedings, which are civil in nature. This, therefore raises slightly different issues.
38 The most relevant authority in this regard is Murphy v. Attorney General [1982] I.R. 241. It is well known that the decision of the Supreme Court in that case, upholding the decision of the High Court, was to the effect that the provisions of the Income Tax Act 1967, which required joint assessment of married couples, were repugnant to the Constitution. Subsequent to the decision, there was, unusually, a further comprehensive hearing on the consequences of that determination both for the plaintiffs, and for all other married couples in the State. The potential financial consequences for the State were obvious, and the uncertainty over the State’s budgetary position justified the step of hearing argument on the question of the entitlement of the plaintiffs in that case, and more importantly all other married couples, to recover any excess tax paid under the provisions found invalid.
39 The State sought to argue that the court could adopt an approach adopted in some common law countries known as prospective overruling, where a court, in overruling an earlier precedent and thus changing the law governing a particular area, could determine the date from which the new law established by the decision could take effect. This is closely related to an approach adopted in some jurisdictions in public law matters of providing that any invalidity of legislation will only take effect as ex nunc (from the date of decision) rather than ex tunc, (from the date of the enactment or other provision found invalid). In simple terms, it would involve determination that any invalidity would be prospective only. O’Higgins C.J. was prepared to adopt this course. However, the majority of the court took a different view. In an extensive judgment, Henchy J. analysed the text of the Constitution in both official languages. First, he pointed out that the Irish Constitution contained an express jurisdiction under Article 34 to declare the invalidity of legislation. It was not something deduced from the Constitution or implied, as in other jurisdictions. He approached the issue firstly by considering the position in relation to pre-1937 legislation. Article 50 of the Constitution provided for the continuation and enforcement of the laws of Saorstát Éireann, “to the extent which they are not inconsistent with” the Constitution. It followed, he considered, that where inconsistency with the Constitution was established, the impugned legislation must be declared to have ceased to have effect on the coming into force of the Constitution. In a vivid phrase, he described such a declaration as a “judicial death certificate with a date of death stated as the date when the Constitution came into operation”.
40 The next step in the reasoning was to consider the provisions of the Constitution dealing with post-1937 legislation, where such legislation was found to be repugnant to the Constitution. Henchy J. considered that the Constitution adopted the normal approach to an ultra vires Act by branding the enactment as invalid. Both in the consideration of authority and perhaps more importantly, consideration of the true nature of the constitutional limitation on the legislative power, an Act found repugnant to the Constitution was to be held to “be” (and not “become”) invalid, ultra vires and therefore “void ab initio”. This conclusion was, he considered, reinforced by the Irish text, which referred to invalidity in Article 15.4 by using the term “gan bhail” which was to be rendered in English as “worthless, void or ineffective”. Consequently, a statutory provision, once declared invalid, had invalidity attached from the date of enactment if post-1937, and from the date of the Constitution coming into force, if the statute predated it. He considered that it was not possible or permissible to seek to assert that such invalidity only attached as and from a particular date such as the date of delivery of judgment in a case. Furthermore, normally such a void Act would provide no legal justification for any acts done or left undone, or for transactions undertaken in pursuance of, and the person damnified by the operation of the invalid provision would normally be accorded by the courts all permitted and necessary redress.
41 This was a very clear rejection of the argument that the Irish Constitution permitted the court to make ex nunc declarations of invalidity in the same fashion as was permissible in the CJEU (see the Opinion of Advocate General Stix-Hackl of 17 March 2005, Banco Popolare di Cremona, C-475/03, EU:C:2005:183, paras. 135 to 150), and the European Court of Human Rights (see Marckx v. Belgium (App. No. 6833/74) (1979-80) 2 E.H.R.R. 330) and indeed other European jurisdictions (see, for example, Verstraelen, ‘The temporal limitation of judicial decisions: the need for flexibility versus the quest for uniformity’ (2013) 14 German Law Journal 1687). That conclusion was not challenged in this case, and is well established. For that reason, I do not consider that the important considerations raised by MacMenamin J. can arise for determination in this case, but they will no doubt stimulate more thoughtful consideration of this difficult area. However, of greater importance for present purposes is that that clear conclusion did not lead to the plaintiffs, and any other taxpayer, becoming entitled to the repayment of monies which they had been required by law to pay under a provision now determined to be invalid.
42 The invalidity of the legislative provision did not automatically lead to the invalidity of all acts and steps taken on foot of it. “There may be transcendent considerations which make such a course undesirable impractical or impossible” and it might be added, unjust. Taking examples from the field of civil law where cases are overruled, but actions taken on foot of an earlier decision are not set aside, and from the areas of estoppel and acquiescence, Henchy J. pointed out, that the law did not always require the setting aside of steps taken on the basis of a provision subsequently held to be invalid or otherwise ineffective:-
“For a variety of reasons, the law recognizes that in certain circumstances, no matter how unfounded in law certain conduct may have been, no matter how unwarranted its operation in a particular case, what has happened has happened and cannot, or should not, be undone. The irreversible progressions and bye-products of time, the compulsion of public order and of the common good, the aversion of the law from giving a hearing to those who have slept on their rights, the quality of legality – even irreversibility – that tends to attach to what has become inveterate or has been widely accepted or acted upon, the recognition that even in the short term the accomplished fact may sometimes acquire an inviolable sacredness, these and other factors may convert what has been done under an unconstitutional, or otherwise void, law into an acceptable part of the corpus juris. This trend represents an inexorable process that is not peculiar to the law, for in a wide variety of other contexts it is either foolish or impossible to attempt to turn back the hands of the clock.”
43 Murphy v. The Attorney General [1982] I.R. 241 was a case which addressed the tax collection function which was fundamental to the running of the State. The State’s accounts are managed on an annual basis. Absent a challenge, the State was entitled to proceed on the basis that it could spend the money it collected. Even though the plaintiffs complained about the collection of taxes from them from the year 1976 onwards, it was held that they were only entitled to the recovery of taxes from the year 1978 to 1979, being the first year in which they had effectively objected to the flow of those taxes into the defendants’ central funds by the issuance of a plenary summons:-
“Up to that year the State was entitled, in the absence of any claim of unconstitutionality, to act on the assumption that the taxes in question were validly imposed, they were properly transmissible into the central fund, and that from there they were liable to be expended, according to the will of Parliament, for the multiplicity of purposes for which drawings are made on the central fund of the State. Equally, every taxpayer whose income tax was deducted from his earnings throughout a particular tax year, no matter how grudgingly or unwillingly he allowed the deductions to be made from his weekly or monthly income, could not avoid having imputed to him the knowledge that the tax he was paying was liable to be immediately spent by the State.”
This meant that, in effect, the plaintiffs were entitled to a modest recoupment covering two years excess tax. But more importantly for present purposes, no other person was entitled to recover, or at least any person who had not issued proceedings:-
“In the absence of special circumstances (which have not been shown to exist in this case), payment of PAYE taxes during the whole of a tax year, without instituting proceedings to have the taxes invalidated on the ground of unconstitutionality, should be held to defeat a claim made later to recover the taxes paid during that year.”
44 It is important to recognise the breadth of this ruling. The practical result was that the invalidity identified as operating ex tunc took effect, so far as almost everyone was concerned, ex nunc. Although examples were drawn from the areas of civil law such as estoppel or acquiescence and laches, I agree with MacMenamin J. that the case cannot be seen as an application of purely private law principles. Instead I consider that the examples were used to support a broad principle applicable in the area of public law, and in particular of constitutional law. The doctrines of laches, acquiescence and estoppel, as encountered in private law, normally require knowledge of the potential claim, or positive conduct on the part of the party which makes it unfair to rely on what has been determined to be their legal rights, or both. In the case of a person paying tax, it could not be said that they had, or should have had, knowledge of an invalidity which had only later been established by proceedings. Furthermore, the limiting of the plaintiffs’ claim to the period from the commencement of the proceedings is not determined by principle so much as the identification of a convenient point which appears to best balance the rights of the plaintiffs and in this case the State. Normally a person issuing proceedings is entitled to recover damages or receive an entitlement established in those proceedings, for the period prior to commencement of the process, subject only to any relevant provisions of the statute of limitations. The ‘transcendent considerations’ identified in Murphy v. Attorney General [1982] I.R. 241, therefore, led to a broad conclusion that justice is served by declaring the invalidity of the provision, and both limiting the consequential recovery to the plaintiff, and, following the pattern of the decision in State (Byrne) v. Frawley [1978] I.R. 326, indicating that any claim seeking to piggyback upon the decision would be unlikely to succeed. I would add that I do not read these judgments as merely an invocation of some broad public policy considerations to avoid the inconvenience which otherwise might follow from invalidation. Instead, in my view these decisions reflect an important principle derived from the nature of public law adjudication through the medium of private litigation.
45 The further hearing and ruling in that case was prompted by the very substantial liability, coupled with the enormous administrative task, that would have ensued had it been held that all tax overpaid by all married couples in the State should be returned, subject only to any possible limitation under the statute of limitations, if applicable. But the decision should not be represented, or indeed misrepresented, as establishing a somewhat dubious principle that size is determinative and that in substantial cases the law will not insist on what is required in smaller claims. Instead, cases with far reaching consequences like Murphy v. Attorney General [1982] I.R. 241 can illustrate a difficulty which is more easily detected than in more modest claims: that is, that justice, both inter partes, and more importantly to all those who are affected by and bound by the outcome of the litigation, may require a more nuanced remedy. A blanket invalidity of all things done on foot of legislation, may be recognised as conferring an unjustified windfall on some parties, and imposing a corresponding unfair burden on others.
46 There are indeed other circumstances where blanket consequential invalidity might offend justice. Since the Constitution has endured for eighty years, and a broadly similar constitutional order has been in place for nearly one hundred, it has been recognised, that there can be instances of creeping unconstitutionality, that is where a provision unobjectionable when enacted becomes unconstitutional because of a substantial change in the underlying factual situation: see for example Brennan v. Attorney General [1983] I.L.R.M. 449 (H.C.), [1984] I.L.R.M. 355 (S.C.). A different situation, traces of which can be seen in this case, occurs when an Act is within constitutional limitations, but when combined with a later piece of legislation, itself also permissible, gives rise to a situation which can be determined to be inconsistent with the requirements of the Constitution. A further instance is where it is recognised that the understanding of constitutionally mandated requirements of fairness, equality, justice and other broad-textured constitutional guarantees may develop over time. For example and most clearly, it was recognised in State (Healy) v. Donoghue [1976] I.R. 325, and more recently in Carmody v. Minister for Justice, Equality and Law Reform [2009] IESC 71, [2010] 1 IR 635 that what was required in the nature of legal assistance to comply with the guarantee of a trial in due course of law under Article 38 has continually developed over time, and the nature of representation permissible in the early days of the constitutional order would not be considered sufficient in more modern times. It is not necessary to consider in any detail the idea of the Constitution as a living tree, to borrow the metaphor of Lord Sankey in Edwards v. Attorney General of Canada [1930] A.C. 124, with the significant qualification suggested by Lord Bingham in Brown v. Stott [2003] 1 A.C. 681 at p. 703. It is enough, I think, for these purposes, to repeat the observations of Walsh J. in McGee v. Attorney General [1974] I.R. 284 that the prevailing ideas of the constitutional virtues of prudence, justice and charity, by reference to which the Constitution should be interpreted, are conditioned by the passage of time, and that no interpretation of the Constitution is intended to be final for all time. The application of that observation in any given case recognises that what was done at certain times or circumstances was once consistent with the Constitution, but is no longer. It would border on the perverse to insist nevertheless that the invalidity of all actions done on foot of the impugned law should attach from the moment of enactment of that legislation, or the coming into force of the Constitution. A different situation may arise where a legislative provision is declared unconstitutional by the High Court in exercise of its jurisdiction under Article 34. The law is stated, and takes effect as of the date of that decision. It is the only guide to conduct and every person must act in accordance with it. What then is the position if it is overturned on appeal or indeed that appeal in turn reversed, or as discussed in Murphy v. Attorney General [1982] I.R. 241, binding authority is later overruled? It seems difficult to treat as a nullity, and perhaps a civil wrong, something done that was compelled by, or at least in accordance with, what was then the law. As Dr. David Kenny points out in ‘Grounding constitutional remedies in reality: the case for as-applied constitutional challenges in Ireland’ (2014) 37(1) D.U.L.J. 53, there is a curious lack of symmetry between the development of rules limiting the nature and sweep of constitutional challenges, and the relative absence of any rules governing the consequences of any invalidity once identified. Yet the terms of Article 15.4.2° seem to permit, if not indeed require, that a remedy is measured precisely to fit the repugnancy identified, and no more. In the allied field of administrative law, the same idea is found in addressing questions of remedy. In the judgment of Clarke J. (as he then was) in Tristor v. Minister for Environment [2010] IEHC 454 (Unreported, High Court, Clarke J., 10 December 2010), an overriding principle was identified that any remedy in the field of civil litigation could and should attempt in as clinical a way as possible, to undo the consequences of any wrongful or invalid act, but not more. Repugnancy in the Constitution does not come in one standard size, and the remedy for it must be capable of recognising that once invalidity of the legislation is established, it remains a separate and difficult question as to the effect of that invalidity on actions done on faith of that law, or indeed in obedience to it, which, as O’Flaherty J. suggested in McDonnell v. Ireland [1998] 1 I.R. 134 at p. 143, is itself an obligation of all citizens:-
“Members of society are given no discretion to disobey such law on the ground that it might later transpire that the law is invalid having regard to the provisions of the Constitution”
In my view, the administration of justice under the Constitution may require a court to recognise the wisdom of Hughes C.J.’s observation in Chicot County Drainage District v. Baxter State Bank (1940) 308 U.S. 371 that the actual existence of the statute is an operative fact, which may have consequences which cannot justly be ignored. The past cannot, and I would add should not, always be erased by a new judicial declaration.
Conclusion
47 Turning to this case in conclusion, it appears to bear some comparison with the facts of Murphy v. Attorney General [1982] I.R. 241: indeed, the payment of social welfare payments pursuant to the 2005 Act is the other side of the State’s accounting process from the collection of taxes considered in Murphy. In one respect at least this case may present a stronger case for a limitation of the effect of a declaration of invalidity. The outcome of Murphy was that it was never permissible to insist upon a single assessment of married couples. Here, however, the decision of this court is not so clear cut. It seems conceivable that it would be entirely permissible to make at least some adjustment to the entitlement to social welfare of persons detained by the State and whose expenses are reduced by that fact, although not necessarily extending to the blanket removal effected by s. 249(1)(b). There was no time in which a person in the position of the appellant could contend that they were entitled to receive payments while imprisoned, nor was there any legislative judgment that the appellant was so entitled. Indeed, to treat the appellant and anyone in the same position as fully entitled to payments under the 2005 Act, would be to create a new form of legislative entitlement to benefit, and moreover one which not only was not approved by the Oireachtas but, moreover, plainly runs counter to the legislative intention. Just as the court will not sever a provision if the result will be to create legislation inconsistent with the legislative intention as apparent from the Act, the court should be slow to permit a declaration of invalidity to create by default a form of legislation of general application, which it is plain the Oireachtas would not have enacted, and which, moreover, would extend the financial burden on the State and its citizens without sanction of the Dáil. Furthermore, the theory of any claim in litigation is that a person is forced to bring proceedings because the defendant wrongfully withholds something which the plaintiff claims. The failure of the defendant to provide the benefit or pay the damages justifies the commencement of proceedings and the awarding of costs against the defendant. But here, the Minister for Social Welfare could never lawfully have paid the benefit to the appellant. The Minister was bound by the law to apply s. 249(1)(b) and had no entitlement to treat it as invalid or a nullity: that was solely within the jurisdiction of the Superior Courts pursuant to Article 34 of the Constitution. All of these factors point, in my view, to an obligation to fashion an appropriate remedy in this case, rather than adopt the general approach of consequential invalidity.
48 The invalidation of s. 249(1)(b) will require that the Oireachtas now address the question in a comprehensive, and, I hope, humane way, and produce an outcome consistent with the Constitution. That may yet yield benefits for prisoners and others detained by the State. In terms, however, of the recovery of benefits unpaid for the period while the 2005 Act, and more specifically s. 249(1) was in force, I would follow the broad approach in Murphy v. Attorney General [1982] I.R. 241, and would be prepared to hold that this appellant would be entitled to be paid benefits, but limited to a period approximating to the time taken in these proceedings. That must be subject of some rough estimation, since it cannot be that dilatory proceedings would increase the amount recovered. In fact he has already been paid a sum of €7,500 on account of damages by the State authorities. There has been no precise quantification of the amount of the claim made by the appellant under this heading by reference to the progress of the case. Taking a broad and admittedly unscientific approach, I would accordingly order that the appellant is entitled to receive €10,000, in this regard, €7,500 of which has already been paid. The fact that a claim was not intimated earlier means, as in Murphy, that the State was entitled to maintain its accounts on the assumption that the disqualification contained in s. 249 was valid and effective. No person who had not issued proceedings would be entitled to claim any entitlement. Where proceedings have been issued and not advanced, it will be necessary to consider carefully if any entitlement to any benefit is appropriate. However, that issue is not one which arises in this case.