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: | MacMenamin 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 COURT
[Record No. 89/2016]
Clarke C.J.
O’Donnell J.
McKechnie J.
MacMenamin J.
O’Malley J.
PC
APPELLANT
AND
THE MINISTER FOR SOCIAL PROTECTION, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS
Judgment of Mr. Justice John MacMenamin dated the 28th day of November, 2018
Introduction
1. In what is referred to hereafter as the “principal judgment”, already delivered in this appeal [2017] IESC 63; [2017] 2 I.L.R.M. 369, the Court indicated that it would not make an immediate declaration concerning the constitutional invalidity of s.249(1) of the Social Welfare (Consolidation) Act, 2005 (“the 2005 Act”), and instead invited further submissions on the precise form such a declaration should take. This was a simple counsel of prudence, reflecting a course of action previously adopted in the recent judgment of this Court in NVH v. The Minister for Justice [2017] IESC 35; [2017] 1 ILRM 105 (O’Donnell J.). The statutory complexity said to arise in this case is described later in the judgment. Counsel for the parties have made comprehensive oral and written submissions for this part of the appeal. The Court is indebted to them for this assistance. Section 249(1)(b) addresses the disqualification of prisoners, the issue in this case.
2. This judgment makes a number of preliminary observations on the procedures involved in the appeal; examines the basis for deferred or suspended declarations of invalidity; makes some obiter observations as to the consequences of such a declaration on the issue of damages in the light of recent jurisprudence of this Court; identifies a wording of the declaration to be made in the case to give effect to the principal judgment; and, finally, addresses the issue of redress and damages sought by the appellant.
3. The various aspects of the law considered here are in varying rates of evolution. Thus, while this judgment contains observations in relation to the issues just mentioned, these are to be seen as arising insofar as material to this appeal. The time has not yet come when it is possible to say that the law is definitively settled. As always, it develops incrementally. There are substantial areas of agreement between this judgment and that delivered today by O’Donnell J.
Preliminary Observations
4. The Court has already held that s.249 is constitutionally flawed because it imposes an automatic punitive sanction on prisoners when such function lies only within the power of the judiciary under Articles 34 and 38.1 of the Constitution. What is in question here is, simply, “facial” invalidity, with the effect that upon a declaration being made, the section will be held to contravene Article 15.4.1 of the Constitution, which provides that the Oireachtas shall not enact any law which is, in any respect, repugnant to this Constitution or any provision thereof.
5. A number of features in the principal judgment require reiteration. First, the declaration to be made will not affect the validity of the custodial part of the appellant’s sentence. That is not in question. Next, the principal judgment holds that ss. 108 and 109 of the Act of 2005 contain a simple legal entitlement, on foot of which, subject to compliance with certain statutory conditions, an eligible person may be entitled to the State Pension Contributory (“SPC”). Eligibility is contingent, therefore, upon the fulfilment of these statutory conditions. As the Court pointed out, the appellant does not hold any constitutionally cognisable property right in the pension. The appellant’s interest in the pension is, therefore, limited in this way. The issues of redress, as aspects of in their private and public law, can only be considered in that context. Additionally, I would emphasise that the Court did not find that s.249 offended against the guarantee of equality before the law contained in Article 40.1 of the Constitution. The question of over-inclusivity, or under-inclusivity, did not arise in the case of this appellant - a sentenced prisoner. Finally, the principal judgment does not have regard in its ratio to s.249(1)(A) of the Act or the regulations made under the Act.
6. The legal principles discussed in this judgment give rise to a further, more general, observation. Amongst the values espoused in the Preamble to the Constitution are dignity, freedom of the individual and the attainment of “true social order”. These are overarching constitutional values. The term “true social order” can, of course, be interpreted malignly, as having anti-libertarian connotations. But, it must always be understood in the context of the application of the rule of law which protects the citizen against abuse of State power. Insofar as it arises here, the value is to be seen as part of the primary function of the Constitution, that is, the attainment of a democratic social order. Each provision of the Constitution is to be read and applied harmoniously with all others. To decontextualise, or select one constitutional provision in isolation from all others, creates the risk of leading to a false conclusion or interpretation.
7. This judgment also touches on a further theme related to those just mentioned. A declaration of constitutional invalidity ab initio can have disruptive consequences on social order. What status or recognition is to be given to acts done in good faith, under a law subsequently invalidated? But the courts are under a duty to vindicate fundamental rights, where necessary by the invalidation of an unconstitutional provision. That will be what is called the “primary redress”. The judgment considers the extent to which ab initio declarations of invalidity can be reconciled with the attainment of true social order. Invalidation of a provision ab initio accords with the obligations of the State under Article 40.3 of the Constitution to defend and vindicate the rights of citizens insofar as is “practicable”.
8. The judgment must look at the question of entitlement to redress, to be seen in the context of the declaration based on the conclusions in the principal judgment. Certain obiter observations are made in the context of developments in the law, the effect of which is that, in general, declarations of invalidity should be prospective, rather than retrospective.
9. Is the appellant entitled to an award of damages because the provision impugned here violates Articles 34 and 38.1 of the Constitution? To what extent, if at all, should qualified statutory entitlements of the appellant be vindicated where no personal constitutional right of the appellant was infringed? These all fall for consideration. First, it is necessary to make some observations on suspended or deferred declarations of invalidity.
Suspended or Deferred Declarations of Invalidity
10. Any consideration of how these two concepts of suspension and deferral have evolved must begin with the constitutional provisions which directly address validity in the context of the power of judicial review vested in the courts. Article 50.1 provides:
“Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in Saorstát Éireann immediately prior to the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas.”
But such laws do not enjoy a presumption of constitutionality. Article 15.4 of the Constitution of 1937, in turn, addresses legislation passed after the enactment of the Constitution, which enjoys a presumption of constitutionality. The validity of legislation may be challenged only in the Superior Courts (Article 34.3.2). When the validity of such legislation is tested, the analysis takes place in the context of the Constitution, seen as an entire text. As well as prohibiting the enactment of any law which is in any respect repugnant to the Constitution under Article 15.4.1, Article 15.4.2 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.”
This Article, section and paragraph is, like Article 50.1, phrased in the present tense. The precise text of those two Articles is relevant to the consideration of deferred and suspended declarations, as well as the question of retrospectivity. These are the constitutional boundary lines for the consideration of deferred and suspended declarations.
11. As provided under Article 25.4.1 of the Constitution, all extant legislation shall become and be law as and from the date of signature by the President, unless the contrary intention appears in that law. From the date of signature forward therefore, the legislation has the force of law. On judicial review of such law, the duty of the Court is not limited, but is qualified: it is to ascertain “the extent only of such repugnancy”.
Background to Deferral and Suspension of Declarations
12. Discussion of these two concepts may conveniently begin with the well-known decision of this Court in Byrne v. Ireland [1972] I.R. 241. In that decision, this Court held that the royal prerogative, previously thought to confer immunity on the State in actions in tort did not survive the enactment of the Constitution. But one unusual event in that case is not described in the Irish Reports. It can be established on unimpeachable testimony, as it is described in the judgment of Barrington J. in McDonnell v. Ireland [1998] I.R. 134. It will be remembered that it was Mr. Donal Barrington, S.C., who appeared as counsel for the successful plaintiff in Byrne.
13. During the appeal in Byrne, this Court, having determined it would reverse the High Court decision of Murnaghan J., expressed the preliminary view that the prerogative had not survived the enactment of the 1937 Constitution. The court offered to adjourn the appeal if counsel for the State would give an undertaking to introduce legislation regulating the citizen’s right to sue the State. The court only proceeded to deliver its far-reaching judgment when no such undertaking was forthcoming. It is not unfair to describe the court’s decision to adjourn in Byrne as, in effect, a form of “deferral” of a declaration on the principle of sovereign immunity, recognising that such an evolution in the law might have had the potential to adversely affect the social and legal order, as a result of the removal of the defence of State immunity.
14. In Blake v. The Attorney General [1982] I.R. 117 there were similar considerations. The Court held that Parts II and IV of the Rent Restrictions Act, 1960 were repugnant to the Constitution. But O’Higgins C.J. pointed out that a range of persons might primarily have relied upon the invalid legislation for protection of their tenancies. As a result of the declaration, such persons would no longer have this protection, thereby depriving them of rights they could previously have availed of in legal proceedings. Speaking for this Court the Chief Justice made clear that it was assumed that the matter would receive the immediate attention of the Oireachtas. But he also indicated what was to happen in relation to pending cases in which the invalid provisions might have provided a defence. Where justice required the courts were either to adjourn, or grant a decree for possession with such stay as might appear proper in the circumstances. This approach can also be seen as, in effect, imparting a suspensory effect to the declaration of invalidity. It was again informed by concerns regarding the social order of the State and its citizens. In Murphy v. Attorney General [1982] I.R. 241, the Court adopted a similar “phased” approach to the complex issues.
15. The two concepts of suspension and deferral, amongst others discussed later, came into clearer focus in the judgments of this Court in A v. Governor of Arbour Hill Prison [2006] IESC 45; [2006] 4 I.R. 88. As is well known, the appellant, A, pleaded guilty to unlawful carnal knowledge contrary to s.1(1) of the Criminal Law Amendment Act, 1935. He was sentenced to a term of imprisonment. Subsequent to his conviction and sentencing, this Court held in CC v. Ireland [2006] IESC 33; [2006] 4 I.R. 1 that s.1(1) of the 1935 Act was invalid, having regard to the Constitution. The declaration made by this Court in CC was phrased in the present tense, to the effect that s.1(1) is inconsistent with the terms of the Constitution. In the case, the appellant, A, successfully challenged his conviction in the High Court, claiming that he was detained under what the courts had held to be a constitutionally invalid provision. There was much public concern that other such convicted prisoners might be released. (For background, see Rossa Fanning, ‘Hard Case; Bad Law? The Supreme Court Decision in A. v The Governor of Arbour Hill Prison’ (2005) 40(1) The Irish Jurist 188, and the footnotes describing contemporary media coverage). The High Court judgment was appealed to this Court. For present purposes, it is necessary only to consider the important, albeit obiter, discussion on the issues of deferred and suspended declarations in one judgment in A.
16. Denham J. pointed out the obvious similarities in phraseology between Article 50.1 and Article 15.4.2 of the Constitution, quoted earlier, and the terms of s.52 of the Canadian Constitution Act, 1982. The 1982 Canadian Act provided that the 1982 Constitution was the supreme law of Canada, and that “any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect”.
17. Denham J. outlined the development of Canadian jurisprudence on deferred and suspended declarations. The judgment made clear that, in this State, consideration of such declarations should only arise in extreme circumstances. But it described the rationale for a “suspended declaration” approach as being fundamental to, and derived from, the exercise of the constitutional power of judicial review, thereby facilitating the task of the Court in making decisions upon invalidity. I respectfully agree.
18. Of course, neither the Canadian provision, nor the subsequent jurisprudence, are precisely comparable to our own. The Canadian case law may not be legally persuasive in our courts. However, this judicial consideration, and later Canadian commentary, helps to illustrate the manner in which a not dissimilar jurisprudence developed in a way consistent with a modern democracy. (See, for comparison purposes, Ailbhe O’Neill, ‘Invalidity and Retrospectivity under the Irish and Canadian Constitutions’ (2006) 15(13) Constitutional Forum constitutionnel 147). Some academic commentary is also addressed in O’Donnell J.’s judgment.
19. These developments, and the broader issue of constitutional remedies, have been considered in a series of illuminating essays and commentaries by eminent Irish scholars, both judicial and non-judicial. This ground-breaking work can fairly be described as part of a fruitful dialogue between the courts and the academy. This is a debt which should be acknowledged. As well as lighting the way, this writing contains a useful critique of some of the hazards in this form of declaration.
20. I turn to a brief outline of the manner in which the Canadian law developed. The seminal case is Schachter v. Canada [1992] 2 S.C.R. 679, where, on the facts of that discrimination case, Lamer C.J. at p.719(c)-(f) identified three situations where a suspended declaration should be used. These were, first, where an immediate invalidation would pose a danger to the public; where there might be a threat to the rule of law; or where unintended or broader declaration would deprive deserving individuals of benefits to which they were entitled. This might arise where a law was invalidated for being under-inclusive, or depriving others of benefits which should be theirs. (See more recently Carter and Ors v. Attorney General of Canada [2016] 1 R.C.S. 13).
21. Lamer C.J. identified arguments in favour as including that deferred or suspended declarations allow legislative complexities to be resolved; diminished the risk of unforeseen consequences; and served to eliminate or alleviate disruption of the social order consequent on declarations of invalidity. But, against this, as Lamer C.J. pointed out in Schachter, a delayed declaration can allow the persistence of a state of affairs which has been found to violate standards expressed in the Canadian Charter (At pp. 716(e) – 717(b)). He observed that Canadian jurisprudence allowed for “reading in” words to a statute. Such an interpretive process is not, of course, available in our courts. (At p. 716(h) – (i)). He mentioned the further objection that a delay in nullification in fact forced the matter back into the legislative domain at a time which was not of the legislature’s choosing, and which set temporal limits which a legislature would not normally countenance. Thus, in that sense, such declarations could themselves be portrayed as an “interference” with a legislature, which normally might consider a difficult issue in its own time, and take whatever action it wished. (At pp. 717(e) – 718(j)). Ironically, in view of what happened subsequently, Lamer C.J. pointed out that such form of declarations should be deployed only sparingly. This is not what occurred.
22. Some Canadian academic commentary outlines other concerns. It is suggested that such declarations are a “weak form” judicial review, and that they “dilute” the rights of applicants. At a level of theory, it was suggested delaying a declaration does not entirely remove its retrospective effect, in the sense that, if legislation is later struck down, then the very act of deferral itself creates a degree of retrospection. (See Robert Leckey, ‘The Harms of Remedial Discretion’ (2016) 14(3) International Journal of Constitutional Law 504). Professor Leckey wrote that while delayed declarations were initially an exception, they became the norm, or preferred form of remedy. They were made in a range of circumstances, such as challenges to benefit schemes, declarations regarding fundamental institutions of the State, such as marriage, and other areas where a complex intersection of rights might be readily foreseeable. (See Choudhry and Roach, ‘Putting the Past Behind Us? Prospective Judicial and Legislative Constitutional Remedies’ (2003) 21 S.C.L.R. (2d) 205). There are divergent views in Canada as to how, in such declarations, the rights of individual litigants should be measured against the public interest in the maintenance of legal order. Much consideration is given to the question of the risks and benefits of constitutional dialogue.
An Observation Regarding Case Management in this Case
23. In fact, some of these Canadian concerns are not at all theoretical. What happened in case management after the “invalidity hearing”, prior to the “remedies hearing”, is proof of this. This appeal was divided into two parts. The first was the “invalidity” hearing, the second, a “remedies” hearing. Between the two hearings there were case management hearings, which show some of the hazards of such dialogue. Even when a court is receiving bona fide legal submissions as to remedy, separation of powers concerns can arise. The State may seek to describe the legislative responses in contemplation. A court of law will not always appreciate the extent to which the cogs and mill-wheels of government and legislature move at different rates. There may be multiple different interfaces with different offices and departments of State. Policy issues are considered; consultations take place; inter-departmental committees are formed, and various stakeholders express views on the form remedial legislation may take. Proposals for that legislation may come from sources entirely removed from a court situation. A proposed policy may not precisely, or at all, reflect the manner in which a court has addressed the nature of an invalidity issue in its judgment. There is a risk that in this courts might unwittingly be lured into being asked to consider intended remedial legislation when this is not the business of the courts.
24. There is, too, another hazard. While not on precisely the same point, experience in other common law jurisdictions has shown that incremental application of complex and far-reaching judicial decisions on constitutional issues can be interminable and take up much judicial time in lower courts. Thus, while there is much to be said in favour of the two concepts, one must be award of the hazards.
NVH v. The Minister for Justice
25. The judgment of this Court delivered in NVH, decided on the 30th May, 2017 (O’Donnell J.) mentions one of the strongest factors favouring the exceptional use of deferred declarations. The unanimous judgment held that, where there was no temporal limit on the asylum process, an absolute prohibition on asylum seekers seeking employment contained in s.94 of the Refugee Act, 1996, and largely re-enacted in s.16(3)(b) of the International Protection Act, 2015, infringed on the appellant’s constitutional right to seek employment. The judgment went on to adjourn consideration of the order for six months, since the situation described arose due to the intersection of a number of statutory provisions, and could arguably be met by an alteration of someone or other of them. Such choices were primarily a matter for executive and legislative judgment. The Court invited counsel for the parties to make submissions in the form of the order, in the light of the circumstances by then pertaining. (At para. 21).
26. At the adjourned hearing six months later, Clarke C.J., speaking on behalf of this Court, explained in explicit terms that, exceptionally in that appeal, the Court had not taken the “normal course” of immediately declaring the relevant legislative provision to be unconstitutional, thereby rendering the provisions of no continuing legal effect. He observed that the Court recognised that there were legislative choices to be made as to how the issues might be addressed, and that the first “port of call” in making such choices rested with the legislature. ([2017] IESC 82, para. 2). However, Clarke C.J. went on to point out that it had to be “strongly emphasised” that the “general rule” must be that, in finding a legislative measure to be unconstitutional, the Court should immediately declare it to be so, thereby rendering it inoperative under the terms of the Constitution. He pointed out that the circumstances in which the Court would not follow this general rule would necessarily be exceptional, and that there should be “significant limitations” on the appropriate scope of further interaction between the Court and the parties following a finding of invalidity. Thus, he warned when giving judgment on remedy, the Court should not involve itself in any approval or discussion as to the merits of the choices which the State has to make, or the choices available. He emphasised that the Court has “no role in those matters”. The Court directed that the declaration of invalidity would take place from a date stipulated. The Court sat on that date, but purely for the purposes of making the declaration. The declaration in NVH was, therefore, first “deferred” and subsequently “suspended” until the operative date.
27. I mention also what might be characterised as an “admonitory” approach is to be found in Judge McMenamin v. Ireland [1996] 3 I.R. 100, where the Court found that reduction in the plaintiff’s pension arrangements amounted to a breach of Article 35.5 of the Constitution, guaranteeing the remuneration of judges during their continuance in office. In that highly unusual circumstance involving separation of powers considerations, the Court declined to grant declaratory relief, instead expressing the view that, once the government had been made aware of the situation in respect of the constitutional injustice, it would take steps to remedy the matter without the need to make any further mandatory order.
28. In summary then, the courts have adopted a relatively flexible approach to declarations when questions of complexity of the social order arise. The power of deferral or suspension of a declaration of invalidity should be “exceptional”, not the rule. The approaches should not be permitted to evolve into being a rule of universal exceptionality. The courts, the legislature and the Executive, must each recognise that their powers and functions are separate, but operate differently under the Constitution. Declarations of these categories are to be seen as integral to the maintenance of overarching principles of legal and social order. In A.C. v Cork University Hospital and Ors. [2018] IECA 217, Hogan J., in the Court of Appeal, suspended a declaration concerning the constitutional validity of powers exercised by the HSE under mental health legislation, where the consequence of an immediate declaration might well be detrimental both to the rights and interests of the persons concerned and the social order generally.
The Consequence of a Declaration of Invalidity
29. Discussion may then move from the future form of some declarations to the past. It is necessary to consider the temporal scope of retrospectivity and retroactivity. A wide-ranging ab initio declaration of invalidity has the potential to cause disruption to social order. It could render void many acts and transactions back to the date of the enactment of the invalid provision. An erga omnes declaration, affecting all persons, can pose unforeseen threats.
30. There is undoubtedly room for argument that the provisions of the Constitution might permit findings of “as applied” declarations of invalidity confined to particular persons or situations.
31. The difficulties with retrospectivity and retroactivity are not confined to any one State, even those without a written constitution. (See Cadder v. Her Majesty’s Advocate [2010] UKSC 43, in the immediately neighbouring jurisdiction). But brief consideration of two cases drawn from United States jurisprudence illustrates something of the “spectrum” of temporal retrospectivity, running from absolute nullification to qualified recognition. Each raises the question as to the extent to which a court will recognise the validity of actions taken on foot of legislation found to be invalid. One must, of course, bear in mind that the constitutional remedies in the United States jurisprudence operate differently from those under the 1937 Constitution.
32. Norton v. Shelby County, 118 U.S. 425 [1886], later cited in Murphy v. Attorney General [1982] I.R. 241, is an example of a more “absolute” approach. The breadth of the principle enunciated in the judgment is predicated upon its own remarkable facts. The plaintiff sought declarations as to the validity of bonds to the value of $1,000 each, said to have been issued by Shelby County, Tennessee. The bonds were issued by what were termed “de facto Commissioners”, appointed on foot of legislation for that purpose. In fact, legislation creating the Commissioners had been impugned from the very beginning. The Courts of Tennessee had already held that their existence was based on a “usurpation” of the historic role of “county justices”, who had previously been charged under law with such function. On appeal, the Supreme Court of the United States held that the status of these commissioners had never been lawful, either on a de jure or de facto basis. Speaking for the court, Field J. expressed a trenchant view:
“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.” (At p. 426).
33. Based on this statement, the courts should treat an impugned law, or measure taken on foot of it, as if it had never taken place; as non-existent, or a nullity. But, whilst much quoted, the judgment is in fact more nuanced than might first appear. The judgment does consider other later authorities where recognition was given to actions taken on foot of impugned law. The passage quoted above, frequently de-contextualised, is now sometimes deployed by political extremists as legitimising disobedience to the legal order, or a specific enactment.
34. Many decades later, in Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371 [1940], the same court had to consider a situation rather different from that in Norton. A bankruptcy court had approved the making of a composition with creditors. But, thereafter, the statute vesting the bankruptcy court with jurisdiction had been declared “inapplicable” under the constitutional law of the United States. The judgment delivered by Chief Justice Hughes, a judge with the wide political as well as legal experience, observed that the courts below had proceeded on the basis of what he referred to pointedly as their “theory” that, having been found to be unconstitutional, the Act of Congress under challenge was not a law; that it was inoperative; conferred no rights, and imposed no duties, therefore affording no basis for the challenged decree. The reference to “theory” was to the judgment in Norton. However, Hughes C.J. went on to point out that such broad statements must be taken with qualifications. He instanced the fact that the “actual existence of a statute, prior to such a determination, [was] an operative fact, and may have consequences which cannot justly be ignored”. He pointed out the fundamental pragmatic truth that the past could not always be erased by a new judicial declaration, and the effect of a subsequent ruling as to invalidity fell to be considered in various aspects with regard to particular relations, both individual and corporate, and particular conduct, both private and official. He continued “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.” Conceding that the questions are amongst the most difficult of those which engage the attention of courts, he pointed out that it was manifest from numerous decisions that an “all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified.” (At p. 374).
35. An over-simplistic analysis might conclude that the distinction between the approaches in two cases was merely fact-based and contextual. But the difference is profound in its consequence. In Norton none of the acts purportedly carried out under the purported “form” of law were susceptible to legal justification, on the basis of de facto “substance”; what had occurred was a “usurpation” of law, which had been immediately challenged by proceedings at State level. It could not be said that reliance on the purported law could have been warranted on a “bona fide good faith” basis. The situation in Chicot County was, however, quite distinct. The bankruptcy law which for many years had been applied both in substance and good faith, was held ultimately to be constitutionally invalid. But the court was prepared to impart recognition to what had been done under that law. Thus, the United States Supreme Court concluded a principle of absolute retroactive invalidity could not be justified. In fact, Chicot County was one of the first decisions where the United States Supreme Court was prepared to consider a prospective declaration of invalidity.
36. In hindsight, the usage of the word “theory” in the Chicot County judgment is highly significant. It relates to how one sees the law. The courts must consider both theory and practicality in the vindication of rights. The Constitution so provides. The integration of constitutional theory and practicalities lies at the centre of the issues discussed here. How far can the courts undo or reshape the facts of history, when, as Henchy J., quoting an eminent historian, put the problem: “The statue has taken shape and never go back to the quarry”. (Murphy v. Attorney General [1982] I.R. 241, at 315). In the application of the law, the courts must deploy a form of praxis based in principle but applied within a constitutional framework on an engagement with facts and application of such principles in a manner which has regard to consequences, and a hierarchy of values including true social order. Part of such consideration involves an awareness of the fact that judgments can have real and unforeseen social consequences.
The Earlier Jurisprudence of the Superior Courts
37. An investigation of our Superior Court’s approach to retrospecitity and retroactivity begins with the judgment of this Court in McMahon v. The Attorney General [1972] I.R. 69. McMahon was an Article 50 case. It was a small harbinger of things to come. In McMahon, this Court declared provisions of the 1923 Electoral Acts constitutionally invalid as they insufficiently protected the secrecy of the ballot. In theory, this might have placed the validity of all elections post-1923 in question. But while applying the declaration retrospectively in theory, the Court, in fact, consciously eschewed a broad application of that theory. It is not clear that the question of retrospectivity was ever argued in McMahon. However, towards the conclusion of his judgment, O’Dalaigh C.J. pointed out that constitutional rights are declared “not alone because of bitter memories of the past but no less because of the improbable, but not-to-be-overlooked, perils of the future.” He expressly pointed out that it had been no part of the plaintiff’s case in McMahon that the validity of the last, or any previous election, had been, or could be, effected by the irregular voting procedures of which he complained. (At pp. 111-112). Fitzgerald J., in the sole dissenting judgment, pointed out that in fact the plaintiff had not advanced any argument as to the possible consequences of a finding of the procedure being unconstitutional, but he added that, a finding such as that of the majority in the case “raises or could raise” the issue as to whether all elections since 1923 were unconstitutional. (At p. 113). No such challenges were ever initiated subsequently. But the judgments nonetheless show awareness as to the potential disruptive effects of absolutism. O’Dalaigh C.J. consciously limited the majority judgment as to avoid any such risk of unforeseen consequences. It is not without significance, however, that in McMahon the order of the Court stated, again in the present tense, that the impugned provisions “are not consistent with the Constitution”, and “are not continued by Article 50 of the Constitution”. As O’Higgins C.J. pointed out in his judgment in Murphy, a declaration of invalidity under that provision necessarily entails a degree of retrospectivity.
38. It is necessary to refer to two cases only briefly, as O’Donnell J. deals with them more extensively. In de Burca & Another v. Attorney General [1976], the plaintiffs impugned provisions of the Juries Act, 1927, which they submitted improperly had regard to a property qualification for membership of juries. This qualification was held to be invalid, having regard to Article 40.1 of the Constitution. The question arose as to the validity of thousands of previous jury trials which had taken place before questionably constituted jury panels previously. In de Burca, O’Higgins C.J. concluded that the issue could be addressed having regard to the fact that it could not be shown that no one who had served on such juries had been ineligible, and that, consequently, it could not be shown that the trials were constitutionally flawed. Walsh J., on the other hand, was prepared to countenance the possibility that jury verdicts would be invalid, but he, too, was of the view that it could not be shown that ineligible persons had served on juries. I add here that, in Canada, in R v. Bain [1992] 1 SCR 91, this issue was addressed by a suspended declaration to facilitate the enactment of legislation.
39. In State (Byrne) v. Frawley [1978] I.R. 326, a challenge was made to the validity of a trial which had been conducted after the decision of this Court in de Burca. There, the majority of the Court (Henchy, Griffin and Parke JJ.), O’Higgins C.J. and Kenny J. dissenting, concluded that the decision to proceed with the trial had taken place in the knowledge of the de Burca decision. Thus, as a consequence, the appellant was estopped from raising this as a ground claiming invalidity.
Murphy v. The Attorney General – Considered in More Detail
40. The discussion of Murphy v. The Attorney General which follows must be more detailed. As will be seen, the majority and minority of this Court in Murphy approached the question of invalidity from two different theoretical viewpoints. But what is significant was the limited practical retroactive effect even of the majority judgment which, while declaring the provision challenged as being void ab initio, adopted a practical and policy-based approach in qualifying any entitlement to damages or redress. The Court declared that married couples paid significantly more tax than single persons living together. The plaintiffs, a married couple, sought the refund of the money they had overpaid. Self-evidently, the consequences of such a declaration of invalidity, erga omnes and ab initio, could have had cataclysmic effects on the State’s financial arrangements.
41. In the minority, O’Higgins C.J. pointed out that Article 25.4.1 of the Constitution declared that every bill became and remained law on the signature by the President. Thus, he reasoned, any subsequent declaration of invalidity could not be seen as relating back to the moment of enactment; rather, it took effect only on the date of such finding by the court. He instanced the possibility that such declarations might potentially interfere with vested constitutional rights; prosecutions. convictions and punishment of citizens; challenges to expenditure of public monies; and the risk that innocent people might be discouraged from entering into obligations or accept liabilities of a permanent nature; and that actions undertaken in good faith might retrospectively become serious wrongs. In my view, these are weighty considerations in favour of prospectivity, provided the text of Constitution does not indicate to the contrary. Having referred to the potential for “turmoil and chaos” arising from such declarations, O’Higgins C.J. concluded:
“… that under the Constitution a declaration as to the invalidity of a law or any provision thereof can only operate from the moment such invalidity is declared in the High Court or in the Supreme Court. I have been able to arrive at this conclusion from an examination and interpretation of the express provisions of the Constitution. However, even if this had not been possible, the requirements of an ordered society would have inclined my mind to such a conclusion. It would appear to me to be unthinkable that a people, who adopted a Constitution in the interests, inter alia, of achieving a "true social order" (see Preamble) should have intended that, under that Constitution, laws, formally passed, which went into operation and which were respected and obeyed, could, years after their enactment, be declared never to have had the force of law. Such an interpretation of the Constitution would provide for our people the very antithesis of a true social order - an uneasy existence fraught with legal and constitutional uncertainty.”
Clearly, O’Higgins C.J. had in mind here cases such as de Burca & Anderson v. Attorney General [1976] I.R. 38, and The State (Byrne) v. Frawley [1978] I.R. 326, which illustrated precisely the difficulties with retrospectivity.
42. The conclusions of the majority in Murphy were set out in the judgment of Henchy J. He espoused the view that when the impugned provision was declared invalid, the legislation had been, at all times, null and void; and that to reach any other conclusion would, he felt, be to fail to recognise the true nature of the constitutional limitations of the legislative power vested in the Oireachtas. It would distort the meaning that should be given to “invalid” in the constitutional context; and would fly in the face of what he referred to as an “unbroken” line of judicial decisions, which expressly, or by necessary implication, pointed to the date of enactment as being the date from which invalidity was to attach to the measure which had been struck down because of its unconstitutionality.
43. The only Supreme Court authority directly cited by Henchy J. was, in fact, the judgment of this Court in McMahon. The manner in which the Court qualified the retrospective potential in the Article 50 case of McMahon has been described. Henchy J. also cited two High Court judgments to which he referred as part of the unbroken line of authority. These were O’Brien v. Keogh [1972] I.R. 144 and M v. An Bord Uchtála [1975] I.R. 81. The facts of both High Court cases did indeed require, by necessary implication, that to give effect to the judgments they be given some limited retrospective effect. But the approach differed from McMahon, in that, there is no indication that the issue of retrospectivity, prospectivity, or damages, was ever raised or considered in those High Court cases. It is difficult to understand either case as part of an unbroken line of authority.
44. In Murphy, Henchy J. nonetheless drew a clear distinction between the theory and the qualified practical effect of the judgment when it came to damages. He expressed the view that a declaration of invalidity took place ab initio, that it was a “judicial death certificate”. But the judgments of the majority, while based on an ab initio theory, actually show the careful manner in which, even then, the effects of the theory were qualified and limited, where the practical issue of damages arose. Based on the equitable principle of restitution, the plaintiffs’ relief was confined to a period between the date of their effective objection to payment, and the date of the judgment. (p.318) This might be seen as a classical application of restitutionary principles of payment under objection or challenge. Relief was restricted only to that small category of persons who had actually raised the issue in correspondence. Insofar as other taxpayers were concerned, the State could rely on the restitutionary defence of alteration of position, that is to say, that even having regard to the fact that the tax had been exacted by the State in its official guise, such conduct had not been challenged by other taxpayers, and the State had altered its position, and structured its fiscal arrangements in the expectation of tax receipts premised on the impugned taxation regime. Thus, the State was entitled to rely upon the restitutionary defence of alteration of position.
45. Whether seen as an issue of public law, or private law, one might ponder the question of what the reaction of the State should have been to the plaintiff’s initiating letters raising objection? Part of the complexity in Murphy is that it arose from a finding that a constitutional right of the plaintiffs, under Article 41.2, as members of a constitutional family, had been breached, in that the taxation provision did not protect the plaintiffs’ family with “special care”, in the words of that Article. The finding of this personal right had potentially wide constitutional scope however. The duty of the State was to uphold and apply the law. It is difficult to see what steps the State might have taken in the realm of public law, or even in private law, to allow its conduct or reduce its exposure in response to a claim in restitution or to address the issue of imputed invalidity. Seen as a matter of pure logic, not tempered by overarching considerations of social order, a declaration might, in theory, have encompassed all taxpayers back to the date of the enactment. Financial chaos would inevitably have resulted from the application of the theory in its absolute form.
46. The rationale to be found in ss. VIII to XI of Henchy J.’s judgment has relevance to this case. It is necessary to look at the steps in the judge’s reasoning. The judge pointed out that, insofar as the case was, in equity, based upon the proposition that the State was unjustly enriched by receipt of the taxes exacted colore officii, in fact, tens of thousands of married couples who came within “the sweep” of the income tax collected. He held that any taxpayer who failed to object was guilty of laches. (At pp. 318 and 319). But he also took into account the fact that the tax had been paid in good faith, and in reliance on the presumption that the “now-condemned sections were favoured with constitutionality”. (At pp. 319 and 320). He pointed out the practical difficulties in respect of restitution, in that different groups of taxpayers paid taxes in each year, if only because of the debts of some taxpayers, and the accession of new persons to the lists of taxpayers. (At p. 320). He observed that the primary purpose of an order of restitution is to restore the status quo, insofar as the repayment of money could do so. But he then went on to cite considerations of impracticality:
“But when, as happened here, the State was led to believe, by the protracted absence of a claim to the contrary, that it was legally and constitutionally proper to spend the money thus collected, the position had become so altered, the logistics of reparation so weighted and distorted by factors such as inflation and interest, the prima facie right of the taxpayers to be recouped so devalued by the fact that, as members of the community, and more particularly as married couples, they had benefited from the taxes thus collected, that it would be inequitable, unjust and unreal to expect the State to make full restitution.” (At p. 320).
47. It is necessary then to pause to consider a passage in Henchy J.’s judgment, which might give rise to misunderstanding. It begins, at page 321:
“The conclusion that the plaintiffs are entitled only to limited recoupment is supported by comparable decisions in other jurisdictions.
For example, the United States Supreme Court, unencumbered as it is by any constitutional imperative such as is contained in Article 50 or Article 15, s. 4, sub-s. 1, of our Constitution, has varied in its rulings as to whether its condemnation of a statute as unconstitutional should be given effect to prospectively only or with some degree of retroactivity. However, even in cases where the statute has been declared to have been invalid ab initio (as is the position in the present case), it has come to recognize that legal transactions that took place under the void statute did not necessarily suffer retrospective invalidity with the fall of the statute. The difficulty, if not impossibility, of laying down a general rule on the matter was dealt with by Hughes C.J. in delivering the opinion of the court in Chicot County Drainage District v. Baxter State Bank 37 at p. 374 of the report.” (Emphasis added)
He then quotes the passage from Hughes C.J. Having done so, Henchy J. commented:
“In other words, it has been found that considerations of economic necessity, practical convenience, public policy, the equity of the case, and suchlike matters, may require that force and effect be given in certain cases to transactions carried out under the void statute.” (At p. 322).
48. But it is important that Henchy J.’s citation of that passage should not be misunderstood. The reference to a statute having been declared invalid ab initio, “as in the present case”, should not be understood as referring to the statute which was in question in Chicot County Drainage District. There is, in fact, a certain irony in the citation of the passage from Hughes C.J.
49. In fact, Griffin J.’s judgment explains a great deal. Like O’Higgins C.J., Geoghegan J. cited the judgment of Cardozo J. in Great Northern Railway Company v. Sunburst Oil & Refining Company [1932] 287 US 358, as being the first occasion when the technique of overruling was evolved to limit the retrospective effects of a decision of a court, when it overruled one of its own previous decisions. At page 326 of the Irish Reports, Griffin J. quotes Cardozo J., at page 364 of Sunburst, as follows:
“This is a case where a court has refused to make its ruling retroactive, and the novel stand is taken that the Constitution of the United States is infringed by that refusal. We think the Federal Constitution has no voice upon the subject. A state in defining the limits of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward. It may say that decisions of its highest court, though later overruled, are law none the less for intermediate transactions.”
On this, Griffin J. commented that the expressed reasons stated by Cardozo J. for giving cases prospective effect was that it may do so wherever injustice or hardship will thereby be avoided. Griffin J. went on:
“The Sunburst case permitted prospectivity in relation to judicial decisions. But in 1939, the Supreme Court of the United States extended the right of the court to include prospectivity in respect of the overruling of statutes.”
Thereafter, the Irish Report states:
“The judge here referred to Chicot County Drainage District v. Baxter State Bank, and quoted the passage from Hughes C.J. appearing at pp.321-2 supra.”
One must bear in mind, therefore, that, while Henchy J. cited Chicot County in Murphy, it was, in fact, a judgment where the Federal Supreme Court countenanced prospective overruling, and refrained from making an order having ab initio retroactive invalidity effect. It was, therefore, one of those cases which illustrated that the United States Supreme Court had, as Henchy J. wrote, “varied” its rulings as to whether its condemnation of a statute as unconstitutional should be given effect to prospectively, or only with some degree of retroactivity. The Chicot County judgment was, perhaps more contextually, relied upon and cited in the judgments of this Court in A v. Governor of Arbour Hill Prison [2006] I.R. There the Court questioned the validity of an absolute ab initio theory of invalidity.
50. Henchy J.’s reference to “public policy” defences or limitations can only be characterised as belonging more in the realm of public law. The judgment instances examples of a similar approach in EEC law. (Defrenne v. Sabena (Case C-43/75) [1976] ECR 456). There, the then EEC court, having declared the principle that men and women should receive equal pay for work, thereafter placed limitations on the judgment restricting relief to Ms. Defrenne, and not to other potential claimants. Henchy J. commented:
“In other words, it has been found that considerations of economic necessity, practical convenience, public policy, the equity of the case and such like matters may require that force and effect be given in certain cases to transactions carried out under the void statute”.
He instanced this as “an example from a different judicial metier of the subrogation of abstract principle, and the symmetry of logic to the compulsion of economic, or practical demands of society”.
51. Henchy J. wrote that Defrenne had to be seen in light of the possible catastrophic economic consequences that might have resulted from applying the relevant treaty provisions to the full. But, in a short passage which again can only be viewed as belonging far more in the realm of public law rather than the private law of restitution, he went on to say:
“Nevertheless, it [the Defrenne judgment] stands as a cogent example of the principle that what has been done or left undone under a constitutionally invalid law may, in certain events, such as the evolution of a set of circumstances which it would be impossible, or unjust, or contrary to the common good, to attempt to reverse or undo, have to be left beyond the reach of full redressive legal proceedings and have to be treated as an exemplification of the maxim “communis error facit ius.”” (At p.324).
The references to the “constitutionally invalid law”; and “contrary to the common good”; and the usage of the Latin maxim referring to public error making law, are not usually found in private law jurisprudence. One cannot avoid the conclusion that the practical effect of this passage is that, even a constitutionally invalid provision continues to have a subsisting “force of law”, at least until a declaration by a court. The phrase “force of law” has a resonance with the judgment of O’Flaherty J. in McDonnell v. Ireland [1998] I.R. 134, considered later.
52. The judgments of this Court in Murphy, and also those in A v. The Governor of Arbour Hill Prison, evince a shared concern that an unqualified application of the theory of invalidity ab initio is simply not consistent with a fundamental premise of the Constitution, that is, the attainment and maintenance of an ordered society under the rule of law. In the post-Murphy cases of Muckley v. Attorney General [1985] I.R. 472, at 482, and O’Rourke v. Revenue Commissioners [1996] 2 ILRM 17, the courts had clear regard to the potential chaos caused by persons making restitutionary claims on foot of the previous tax system. I do not think it necessary to go into either of these judgments in detail however.
53. There are, however, critical factors to bear in mind regarding the judgment in Murphy. The court held that the unequal treatment, for the purposes both of the assessment of taxable income, and of the collection of tax from income, of a married couple, living together, as compared to the treatment of two single persons also living together, was not prohibited by Article 40.1 of the Constitution, being justified by the difference of social function between the married couple and the two single persons. But it then went on to hold that the consequent imposition in certain circumstances of tax on the married couple at a higher rate than would have been imposed on two single persons enjoying identical incomes, did constitute a breach by the State of its undertaking by s.3 of Article 41, to guard with special care the institution of marriage, and to protect it against attack. The entire basis of the judgment in Murphy was that there was an infringement of the plaintiffs’ personal constitutional rights. The Court has not made any such finding in this case. The Court did conclude that the plaintiff held a statutory entitlement to the SPC. But the Court stopped short of holding that this was a constitutional entitlement. The statutory entitlement was, itself, subject to conditions set out in the statute itself. This statutory entitlement cannot be converted into a constitutional entitlement for the purposes of imputing a constitutional entitlement.
Cox v. Ireland and McDonnell v. Ireland
54. In Cox v. Ireland [1992] 2 I.R. 503; this Court invalidated s.34 of the Offences Against the State Act, 1939. That provision laid down serious sanctions, including automatic forfeiture of a State pension and disqualification from holding an office or employment under the State, for a period of 7 years for a person convicted of a scheduled offence before the Special Criminal Court. By contrast to the instant appeal, this Court held that Mr. Cox held a constitutional right to the pension. The Court held the State was entitled to provide for the imposition of onerous penalties and forfeitures to deter the commission of crime threatening public order and State authority. Against this, however, the Court considered that the State also had a continuing obligation to protect the constitutional rights of its citizens, including the plaintiff. The Court held that the indiscriminate and over-broad nature of s.34, which provided for such forfeiture and disqualification, was over-broad, and indiscriminate, and thereby constitutionally invalid.
55. Six years later, the issue of retrospectivity of a statutory provision again arose in McDonnell v. Ireland [1998] I.R. 134, which on its facts was somewhat similar to Cox. The plaintiff sought damages for breach of constitutional rights, having sustained sanctions similar to those of Mr. Cox. But the sanctions had been imposed upon the plaintiff, Mr. McDonnell, some 20 years previously. This Court (Keane, O’Flaherty and Barrington JJ.) indicated that, although Mr. McDonnell might have recovered damages within the normal limitation period, an action for breach of constitutional rights was nonetheless a tort for the purposes of the Statute of Limitations, and the plaintiff’s action was long out of time. Two of the three judgments delivered indicate divergent approaches to the question of retroactivity.t Barrington J. stated his agreement with the views of the majority in Murphy, to the effect that an unconstitutional law was void ab initio. In his view, the relevant provision could never become a valid law because of its repugnancy to the Constitution.
56. O’Flaherty J., however, took a different approach, echoing O’Higgins C.J.’s minority judgment in Murphy. O’Flaherty J. referred to Article 25.4.1 of the Constitution, which provided that a Bill became law on the President’s signature, and remained law unless invalidated or amended. Relying on Article 25.4.1, O’Flaherty J. reasoned that, from the date of an enactment onwards, all citizens were required to tailor their conduct in such a way as to conform with the obligations of the law enacted, without any discretion. He explained that such statutes had “the force of law”, which law formed a “cornerstone of rights and obligations which define how we live in an ordered society under the rule of law.” (At p. 144). He explained his conclusion in this way:
“A rule of constitutional interpretation, which preserves the distinct status of statute law which, as such, is necessitated by the requirements of an ordered society and by “the reality of situation”… should have the effect that laws must be observed until struck down as unconstitutional. The consequences of striking down legislation can only crystallise in respect of the immediate litigation which gave rise to the declaration of invalidity.” (Emphasis added) (At p. 144).
His rationale for this approach relates to the maintenance or attainment of social order in society. He added, briefly:
“This is what occurred in Murphy v. The Attorney General [1982] I.R. 241 as well as in Cox v. Ireland [1992] 2 I.R. 503.” (At p. 144).
57. In this brief, but significant, passage, O’Flaherty J. was undoubtedly referring to the fact that in Murphy, all those couples affected by the impugned provision who had not challenged or objected to it, continued to be bound by the law. The impugned statute continued to have full force and effect, albeit that it had been successfully impugned by the plaintiffs. His conclusion on this point, like that of O’Higgins C.J. in Murphy, was premised on the concept of an ordered society under the rule of law.
A v. Governor of Arbour Hill Prison
58. This Court returned to this issue in A v. The Governor of Arbour Hill Prison. The case involved the validity of Mr. A’s criminal conviction. The question arose, unavoidably, as to when the declaration of invalidity in the earlier decision in CC v. Ireland (Cited at para. 12 supra) had “crystallised”. Hardiman J.’s judgment concurred in the order, but di so on different reasoning. The judgments of Murray C.J., McGuinness, and Geoghegan JJ., each concurring with the other, interpret the majority view in Murphy as being that there had to be a subsisting recognition of acts done on foot of a law, even when such law has been successfully impugned.
59. In A, Murray C.J. closely analysed the majority and minority judgments of this Court in Murphy, referring to Henchy J.’s judgment, and also quoting passages from O’Higgins C.J.’s judgment as to the point of invalidity. Murray C.J. preferred the approach adopted by O’Higgins C.J. in Murphy. But, having referred in detail to the judgment in Chicot County, Murray C.J. referred to the passages from O’Flaherty J.’s judgment in McDonnell quoted earlier, Murray C.J. expressed this definitive conclusion:
“This statement of the law I am quite satisfied is correct. It is the logical and ineluctable application of the principles and considerations set out in the judgment of this court in Murphy v. The Attorney General and indeed other judicial dicta.” (At p. 141).
60. Murray C.J. then enunciated a principle, deduced from this analysis, to the effect that “final decisions in judicial proceedings, civil or criminal, which have been decided on foot of an Act of the Oireachtas which has been relied upon by parties because of its status as a law considered or presumed to be constitutional, should not be set aside by reason solely of a subsequent decision declaring the Act constitutionally invalid.” He held that, save in exceptional circumstances, any other approach would render the Constitution dysfunctional, and ignore that it contains a complete set of rules and principles designed to ensure “an ordered society under the rule of law”, in the words of O'Flaherty J. (At para. 116). He added:
“I am quite satisfied that the Constitution never intended to visit on that ordered society the potential unravelling of judicial decisions over many decades when a particular Act is found unconstitutional solely on the consideration of the ab initio principle to the exclusion of all others.” (At para. 117).
61. The judgments referred to in A all make clear that a declaration of invalidity is the “primary redress”. Denham J.’s judgment does not dissent from this view. Where there is a direct challenge to a provision therefore, a court must declare it to be unconstitutional where it concludes there is invalidity. That will be the “primary redress”. The law is therefore that a declaration of invalidity “crystallises” at the point of time the declaration is made by a court, and not before.
62. In fact, Denham J., concurring, actually went somewhat further, in reference to the Irish legal authorities which Henchy J. cited in Murphy. She wrote that there never had been a “principle of retrospective application generally of a declaration of unconstitutionality in our jurisprudence”. She stated in terms:
“On the contrary, outside the litigation which sought the declaration, declarations of unconstitutionality have not been applied retrospectively.” (At para. 135).
Denham J. accepted, however, that while there had been a “practice” of retrospectivity, as illustrated by the authorities cited, this had not been stated as a principle, and had not been the subject of an express decision of this Court. Referring to the consequences of an ab initio approach, she observed:
“Justice is not served, nor is the reality of the situation in our community served, by applying retrospectively an invalidity in circumstances where a law has been relied upon by all for many years. Such a principle of retrospective application would be the antithesis of law and order.” (para. 175).
63. Stepping back, it is easy to see that, while there are differences of theoretical approach between the majority in Murphy, and the majority of this Court in A, the question will often reduce itself, in practice, to one of what is practicable and just. Both judgments evinced share a common concern as to the maintenance of social order, in the context of limitation of ancillary redress.
64. A v. The Governor of Arbour Hill has been cited in this appeal. Its correctness has not been challenged. Very arguably, the principles of prospectivity expressed there might be applied in this case. I do not find it necessary to approach this appeal in this way, and it has not been so argued. The issue of prospectivity versus retrospectivity, with all its consequences, has not yet been fully considered, and would require more detailed reflection and deliberation. What follows, therefore, is also an obiter dictum, in relation to prospectivity.
An Obiter Observation
65. In my opinion, a theory of constitutional interpretation should not become so dogmatic and absolute that it tends to undermine the very basis of the social order which is central to that Constitution. To avoid such consequence, the law can provide that the striking down of legislation will only crystallise in respect of the immediate litigation which gives rise to the declaration of invalidity. Declarations of invalidity should, in general, be prospective. (See also, to the same effect, DPP v. Kavanagh [2012] IECCA 65, Court of Criminal Appeal, composed, significantly of Denham C.J., Moriarty and Hogan JJ., at para. 74). As I interpret the judgments in A, a distinction is to be made between the making of a declaration prospectively, and then whether there are circumstances in which there should be retroactive recognition of acts, consequences or effects which might arise from such a declaration. The identification of such circumstances is a matter of construing the Constitution, and applying the rights and duties contained therein in order to determine the extent to which the effect of the declaration should be applied to the question of ancillary relief, such as damages. This process can only be done on a case by case basis. One must acknowledge that the majority judgments of this Court in A mark a development on the themes previously explored in Murphy, it can now fairly be said that the judgments of this Court in A, and the observations in Kavanagh, signify the need for a renewed rigour of analysis when it comes to the consideration of damages upon a finding of invalidity. To my mind, that rigour must apply to identifying principles for an award of damages upon a finding of invalidity.
66. The principle of prospectivity espoused in A should not be confined to the facts of that case; in general, a declaration of invalidity should be prospective. In fact, the wording of Article 50, and Article 15.2.4 of the Constitution do not require that a declaration of invalidity be ab initio, or in any way retrospective. The contrary is the case. The wording of Article 15.4.2, both in English and the Irish language version, is actually phrased more in the future tense than the past tense. In the English language, Article 15.4.2 provides that 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” (Emphasis added). The Irish language version is similarly phrased, first in the future conditional tense and then in the future tense:
“I gcás aon dlí dá n-achtóidh an tOireachtas a bheith ar aon chuma in aghaidh an Bhunreachta seo nó in aghaidh aon fhorála den Bhunreacht seo beidh sé gan bhail sa mhéid go mbeidh sé in aghaidh an Bhunreachta seo agus sa mhéid sin amháin.” (Emphasis added)
Henchy J. points out that the text uses the term “gan bhail” in the sense of null and void. But one cannot ignore the words that came immediately before “gan bhail” which are not always referred to. Those words are “béidh sé”, in the future tense. The Constitution requires a court to determine only the extent of the repugnancy as found. (See Bunreacht na hÉireann: a study of the Irish text, Ó Cearúil, The Stationery Office 1999, pp. 235 and 686). To my mind, the words of the Constitution, read harmoniously, do not necessitate, either expressly or by implication, that a declaration be retrospective, or have retroactive effect. It is true that, up to the decision in A, a number of judgments did apply or consider retroactive effects on a case by case basis, but did so in a guarded and careful way, having regard to effect and consequence in each instance. The question of entitlement to damages must be seen in the light of that guardedness. The courts adherence to identifiable remedies, whether in restitution or constitutional tort, must be part of the consideration.
67. These are obiter observations. I now emphasise that the conclusion I have reached in this appeal does not hinge upon prospectivity, but rather on the fact that in Murphy the plaintiffs did hold a personal constitutional right, and also on a consideration of the jurisprudence cited to the Court on constitutional torts.
The Declaration, Redress and Damages
68. The form of the declaration is closely connected to the issue of damages. Counsel’s submissions are detailed and helpful, but one’s gratitude must be slightly tempered. The reasons for this hesitation refer back to concerns expressed earlier in this judgment, on the hazards of “constitutional dialogue” between the court and the parties as to the form and scope of a declaration. Misunderstanding is a hazard in any dialogue. But an invitation to make submissions on remedy should not to be seen as being an open-ended one. Having reached conclusions on the law, in muy view, a court should not to be requested to consider a different form of declaration; one not sought by the appellant, and one which does not reflect the operative conclusion of the Court as to why the s.249 of the 2005 Act is constitutionally invalid.
69. The principal judgment contained observations to the effect that the s.249(1) disqualification was arbitrary, indiscriminate, and disproportionate, insofar as concerned the appellant. But the ratio of the principal judgment is that the disqualification operated by s.249(1)(b) is a penalty on prisoners, in that it constitutes an impermissible incursion into the judicial domain. The judgment did not hold there was any other constitutional invalidity. Any question of entitlement to damages, or an entitlement at all, can only derive from what the Court has held to be invalid. The judgment does not speak to any constitutional right of the appellant to equality of treatment before the law under Article 40.1 of the Constitution, or a narrowing of the disqualification by the Regulations.
70. To reach such a determination would have necessitated going considerably beyond the scope of the principal judgment, and would have required a court to consider the proportionality of s.249(1) in its true legal sense, having regard to the legitimacy of the end which the provision seeks to achieve. Whether that objective is legitimate and proportionate are arguable propositions. The provision might be justified on the grounds of the legislation being part of a social solidarity code, or indeed on the alternative grounds that the appellant’s basic needs, which he would normally discharge from his SPC, are, in fact, undertaken by the State during the period of his imprisonment. But the case did not extend that far.
71. As Barrington J. pointed out in Brennan v. The Attorney General [1983] ILRM 449, at 480:
“A classification must be for a legitimate legislative purpose … It must be relevant to that purpose, and … each class must be treated fairly.” (at page 483)
Since that time, this Court has adopted the same approach on numerous occasions. (See Louth v. Minister for Social Welfare [1998] 4 I.R. 321; An Blascaid Mor Theo v. Commissioners of Public Works in Ireland (No. 3) [2000] 1 I.R. 6; Re Article 26 and Employment Equality Bill, 1996 [1997] 2 I.R. 321; Re Article 26 and Part V of the Planning & Development Bill, 1999 [2000] 2 I.R. 321; Re Article 26 and Sections 5 and 10 of the Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 I.R.; Gilligan v. Ireland [2013] 2 I.R. 745; and In MR & DR v. An tArd Chláraitheior [2014] 3 I.R. 533; MacMenamin J.).
72. While the question of discrimination between convicted and non-convicted prisoners was addressed in the High Court by Binchy J., in the context of the holding of a property right, versus statutory right, the question of legitimacy of purpose of the legislation did not fall within the scope of this appeal.
73. In the course of submissions in the remedy hearing, counsel for the Minister was asked to furnish a copy of a draft “proposed declaration” to be made by the Court. This read as follows:
“The Court declares that the State is not entitled to 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 [as it does not treat persons who are undergoing other forms of State detention in the same manner] with the result that the State may [not] at present apply the disqualification regime provided for by s.249(1) of the Social Welfare Consolidation Act, 2005 to convicted prisoners.”
74. Sections 249(1)(b) and s.249(2) of the Act of 2005, provide that neither the pension, nor any increment thereon shall be payable to prisoners while in detention. The Minister’s case is that these are to be seen as a “social solidarity” provisions; part of a developed legislative scheme to protect social welfare entitlements. On that basis, counsel for the Minister submitted earlier at the first “invalidity” hearing that the impugned provision was not punitive, but rather a statutory delineation of eligibility. But the Court rejected that argument, for the reasons outlined in the principal judgment. The judgment does not concern itself with “over inclusivity”, or “under inclusivity”. The declaration of invalidity in the judgment is anterior to any question concerning personal constitutional rights. But the conclusion of the judgment is that the disqualification is a penalty, in that it constitutes an unlawful incursion into the judicial domain. This is an erga omnes declaration.
75. Counsel for the respondents have submitted that they will not propose legislative amendments to allow the question of social welfare payments to be suspended, or to be considered by a judge. They consider that such an approach is not consistent with government policy on social welfare payments. This is not a concern for this Court. Counsel for the Minister informed the Court that, in projected amending legislation, the Minister intended to engage, therefore, in what might best be described as a legislative “levelling down” process, the effect of which would actually be to render a broader category of persons ineligible for the SPC pension. But to give effect to this aim, the Minister now seeks to impugn s.249(1)(A), and regulations made thereunder. The Minister makes the case that s.249(6), (6A), (10) and (17) contain a series of similar disqualifications in respect of “assistance based schemes”, including job seekers allowance. It is said that an award of damages could run into millions of Euro.
76. Under the latter provision, and the regulations made thereunder, a range of persons are indeed excluded from disqualification. (See Articles 217 – 219 Social Welfare (Consolidated Claims, Payment & Control) (Amendment) (No. 1) (Absence from State) Regulations, 2017, (S.I. 12/2017). The Regulations also contain exceptions from disqualification in regard to persons who have not been found guilty of criminal offences, as well as relating to persons absent from the State.
77. But, in fact, as the Minister concedes, the appellant’s challenge was, in truth, confined to s.249(1)(b) of the Act, as it applies to prisoners as opposed to other categories of person who may be subject to a disqualification for other reasons, such as absence from the State. It is my firm view, that the Court should not be lured down an avenue it does not need to explore by allowing a view as to what the Minister may, or may not, do. This cannot influence the form of declaration. The Minister’s wish is that the Court confine the invalidity declaration not only to s.249(1)(A) but also what were referred to as “the relevant parts” of the regulations; which were a “problematic exception” from the disqualification in respect of prisoners in detention. But what the Minister wishes to “impugn” – there is no other word – is a provision, the constitutionality of which was not challenged.
78. In my opinion, therefore, the Court cannot be swayed by a submission, however forcefully made, that it should recharacterise the conclusion of the principal judgment, either for reasons of administrative convenience, or on the basis of a submission not material to the conclusion in its principal judgment. Still less, should this Court accept a submission the effect of which was, that by confining itself to making a declaration in the form intended and previously indicated, this Court would, itself, be “interfering” with the role of the executive in its proposals to amend the legislation now found invalid. This was the thrust of the Minister’s written submission. I go no further than to say such a submission was misconceived. It would run counter to the principle of separation of powers, fundamental to, and part of the very structure of the Constitution. For the purposes of absolute clarity, I do not express any ex ante view, either by way of approval, comment or criticism in relation to any proposed amending legislation. The Court is not, at least at this point, called on to consider what is proposed, potentially affecting a wide category of prisoners who, subject to necessary qualification, owing to their status are entitled to the protections contained in, or arising from, the Constitution.
The Declaration
79. At risk of repetition, it is s.249(1)(b) which imposes the disqualification on prisoners, as opposed to other categories of person, such as those absent from the State. I would hold that the “primary redress” should take the form of a declaration to the effect that s.249(1)(b) of the Social Welfare (Consolidation) Act, 2005 is invalid, having regard to Articles 34 and 38.1 of the Constitution. Such declaration should be effective from the date of delivery of this judgment.
Damages
80. The nature of the declaration must, in turn, operate as a framework for the conclusion on damages. A declaration of invalidity does not, per se, necessitate an entitlement to damages in every case. Historically, in many such cases, the issue of damages did not even arise. Can this declaration, erga omnes. without more, give rise to either general or pecuniary damages in this case?
81. To my mind, the discussion on damages starts, and, in a sense ends, with the nature of the constitutional invalidity. This was that the disqualification from SPC was an extra-judicial punishment. This has an unavoidable consequence to any claim for damages.
82. In An Blascaod Mor Teo. v. Commissioners for Public Works in Ireland (No. 4) [2000] 3 I.R. 565, Budd J. was prepared to accept that, in appropriate circumstances, a plaintiff might recover damages for infringement of a constitutional right brought about by invalid legislation, where the damage was proved to have “flowed directly” from the effects of the invalidity, without some intervening “imponderables” and “events”. He also expressed the view that the legislature should be given a degree of tolerance when it has to weigh conflicting rights in the balance. In my view, this is a correct statement of the law. I do not accept that a declaration of invalidity, per se, can give rise to damages, even nominal damages. It follows that I would not follow the judgment of Herbert J. in Redmond v. Minister for Environment (No. 2) [2006] 3 I.R. 1, where he awarded nominal damages on a declaration on this issue. It is not without significance that, even in Redmond, Herbert J. stated that it was not either possible or desirable to formulate principles of general application as to the circumstances in which a court might so award damages, or to the type of such damages. But there is nothing in Herbert J.’s judgment which runs counter to Budd J.’s observation that any award of damages must flow directly from the finding of invalidity. I move in a moment to consider whether the appellant can show direct loss flowing from the invalidity.
83. Before doing so, I would mention that in Keating v. Crowley [2010] 3 I.R. 648, at para. 79/80, Murray C.J. commented that it was undoubtedly the case that, in certain circumstances, the State was liable to pay compensation to individuals for breach of their constitutional rights. He opined that this would be particularly so when the State, at the time the damage was caused, was acting unlawfully and with mala fides, or misfeasance of public office. But he went on to state:
“It is an altogether different matter to determine the liability of the State, including its vicarious liability, for acts bona fide done by a judge exercising his jurisdiction under a law which at the time enjoyed the presumption of constitutionality or other bona fide exercise of statutory powers which also enjoyed such a presumption.”
84. I consider first direct loss. The circumstances of this fall within the “exceptional” category identified by Budd J. To my mind, it is not possible to identify that damages, or any other form of entitlement, flow directly from the invalidity, because of the very existence of intervening “imponderables” and “events”. An entitlement to damages or redress must be analysed on the basis of what would have been the case had the provision been constitutionally compliant. Of necessity, this would have meant that the issue as to eligibility, or ineligibility, or degree of eligibility, for SPC would have been dealt with by the trial judge who was sentencing Mr. C. One cannot avoid this fact. No statutory entitlement either can be said to directly flow from the invalidity. But, even if the appellant’s entitlement is characterised as being statutory, the question remains, under what rubric any right to repayment of any sum could arise? If general damages, one is entitled to enquire as to the nexus between the award and the constitutional invalidity. Similar observations apply in relation to special or pecuniary damages. Nominal damages, generally, are a very small sum, frequently amounting to €1 or €100. For my own part, I am unable to see a basis for any award.
85. But, no matter what might be the basis, the underlying question posed by Murray C.J. in Keating v. Crowley remains. Why should the Minister, or any of the respondents, pay any sum to the appellant for, without mala fides, having applied a law, which was entitled to the presumption of constitutionality, and which continued in being for so many years without challenge?
86. The appellant accepts that the declaration takes effect only as of the date of judgment. How then can it be claimed that the Minister acted unlawfully prior to that declaration? Entitlement to damages for past invalidity must surely hinge upon an “unlawful” activity. An award of damages must recognise that there has been a finding that, in the past, some person, or individual, acted contrary to law, or in breach of duty. Yet the Minister did no more than apply the law as it stood. That law was entitled to a presumption of constitutionality until struck down for invalidity. But it is not necessary to determine the case on this basis alone.
87. As pointed out earlier, the principal judgment does not hold that there was an infringement of a personal constitutional right, which directly caused the appellant loss or damage measureable in law. The breach of Article 34 or 38.1 by the State does not, necessarily, create a corresponding right to damages in the individual citizen. (See also Greene v. Minister for Agriculture [1990] I.R., for an example of this).
88. To conclude that the appellant is entitled to damages, simply by virtue of a declaration of invalidity in his case, would, to my mind, be to elide the logical steps and to remove from the analysis any consideration of the basis in legal principle upon which the appellant should be so entitled. (See Cleary: Public and Private Law Principles, Murphy v. Attorney General Reassessed (2011) DULJ 155, at p.162). I entirely acknowledge that there are, and will be, cases where successful plaintiffs would be entitled to an award of damages or remedy, on foot of a declaration of invalidity, but, on the basis of the arguments now advanced, I am forced to conclude this is not one of them.
Common Elements in the Case Law – Comparison between Kennedy and Murphy: A Personal Right
89. If one characterises the claim for damages as a constitutional tort, further difficulties arise in addition to those discussed earlier. To characterise a “tort” as a “wrong” is a mere truism. Yet, in this case, it is a revealing one.
90. Kennedy v. Ireland has been cited to this Court as an instance of a case where damages have been awarded for an infringement of constitutional rights. Kennedy, of course, was not a case involving constitutional invalidity. The right to damages was based on a finding that the plaintiffs’ personal constitutional rights to privacy had been infringed by the defendants, in circumstances tantamount to misconduct in office. That judgment, too, illustrates the difficulties the appellant faces material to this case. Kennedy concerned a personal constitutional right: this case does not. Kennedy did not concern a declaration erga omnes: this case does. Kennedy was a case where there was a breach of a constitutional right with a correlative constitutional duty owed to both plaintiffs: this case does not have those ingredients. In Kennedy the Court was in a position to make an assessment of damages directly flowing from the violation of the constitutional right. The detriment sustained by the appellant in this case was merely the denial of a process whereby a sentencing judge might, or might not, have imposed an additional punishment upon him.
91. In Murphy, Henchy J.’s decision to allow the plaintiffs a limited form of recoupment was undoubtedly based on principles of restitution. The judgment is again predicated on a finding that the unlawful taxation of the married couple infringed their personal rights under Article 41.3 of the Constitution, containing the pledge to protect the institution of the family with special care. The extra taxation unlawfully imposed on the plaintiffs in Murphy had been extracted colore officii, that is, where a public officer demands, and is paid, money, or more money, than he is entitled to. (See Mason v. New South Wales [1959] 102 CLR 108, Windeyer J., p. 140-141, and Murphy [1982] I.R. 241 at 316). On foot of these findings, the plaintiff was held to advance a claim on money held and received. The State was held to be a constructive trustee of the monies unlawfully paid. But this entitlement was predicated on the fact that the provision was held to be invalid ab initio. A finding of unjust enrichment in Murphy was possible only because the provision was held to have been invalid at the time the tax was paid. Upon that basis, the Court was in a position to hold that the tax had been imposed, and the money paid under duress. Thus, to reach a determination that the appellant is entitled to damages, implicitly involve a determination which has retrospective effect. But this consideration begs a further question in the context of this case. It was only by applying restitutionary principles that Henchy J. was able to limit the recovery temporally, and as to scope of eligible persons. It is difficult to see upon what basis, in principle, such limitations can be applied, if it is held that the appellant is entitled to payment by virtue of statutory entitlement, or of damages.
92. I would add here that any claim for damages or compensation must have regard to the fact that, had the appellant been at liberty, the pension, or vast preponderance of it, which he would have received would have been expended on basic needs, an issue not significantly disputed in the High Court. But this has not been quantified.
93. Undoubtedly, there have been occasions, such as Murphy, when, upon a declaration of invalidity, the courts have made an award of damages. But in each such case, be it Cox, Kennedy, or Murphy, the courts have taken care to hold that the right to damages derives from the infringement of a constitutional right personal to the plaintiff, and a correlative breach of duty on the part of the defendant held liable for damages which directly caused the loss or damage caused to the plaintiff. There is, in my view, no basis for elevating the appellant’s statutory right subject to statutory conditions to the status of a personal constitutional right, thereby entitling him to ancillary relief.
Constitutional Tort
94. I might add that, in all “constitutional tort” cases where damages were awarded, the courts found an infringement of a constitutional right, together with identifiable fault or wrongdoing, imputable to a defendant. (See, the education cases, Cosgrove v. Ireland [1982] ILRM 48; Hayes v. Ireland & Others [1987] ILRM 651; Conway v. Irish National Teachers’ Organisation [1991] 2 I.R. 305).
95. In Kearney v. The Minister for Justice [1986] I.R. 116, Costello J. felt in a position to award damages to a plaintiff who was a prisoner, who had suffered an infringement of his personal constitutional right to communicate. Letters which had been delivered to the prison where he was detained had not been conveyed to him, as a result of the wrongful action of prison officers. In those circumstances, the plaintiff was awarded simply nominal damages on the basis that he had suffered no pecuniary loss, and was not entitled to exemplary damages. The case is not similar to the instant case. I am unable to see any basis in law for an award of damages, even on a nominal basis, for a finding of what is a bare invalidity, without more.
96. In Meskell v. CIE [1972] I.R., where the plaintiff was held entitled to damages by reason of a denial of his personal constitutional right to form associations under Article 40.6(iii). Meskell is also illustrative of the proposition that the courts will tend to award damages in circumstances where the analogies to the law of tort are clear. In that case, the plaintiff sought a declaration that his dismissal was in pursuance of an unlawful conspiracy, agreement or combination. All of these were alleged wrongs referable personally to him. I would add that, as Barrington J. pointed out in McDonnell v. Ireland, the courts take care to ensure that the invocation of a constitutional tort is not simply used as a “wild card” in defeasance of the normal categories of rights and duties outlined in the Constitution. For these reasons, in my view, even without applying any principle of prospectivity at all. I do not think the appellant has made out a case for damages, or for any entitlement. In so finding, I would express an openness to exploring other forms of proportionate remedy, including damages or otherwise, upon a finding of constitutional invalidity. But, in my view, this case does not permit such an explanation.
97. I conclude with the following summary:
1. A court should, where necessary, consider the question of ancillary redress by damages where a finding of constitutional invalidity so requires. In general, however, a declaration of invalidity should be prospective. A finding of constitutional invalidity, without more, will not, generally, give rise to a claim for damages, especially when the State or its servants did nothing more than to uphold or apply the law challenged in a bone fide manner. For an award of damages on foot of a declaration of invalidity, it must be shown that the invalidity itself directly caused the claimants loss.
2. Where there has been a finding of invalidity, a court will, where necessary, decide whether the invalidity was accompanied by an infringement of a personal right giving rise to damages, or whether there exists factors such as misfeasance in public office, malice, ill-will, or other constitutional tort, including breach of a personal right. Here the respondents merely applied the law as it stood, without any wrongdoing.
3. For damages to be recoverable in the case of an invalidity there must first be shown to be a breach of a claimant’s personal constitutional right, accompanied by an actionable wrong on the part of the defendant, in a manner generally cognisable under the common law, or law of torts. These are general observations.
4. In my view, the appellant has not shown that any personal constitutional right of his was breached. What has been shown is, rather, that s.249(1)(b) of the Act of 2001 is constitutionally invalid, because it imposed an extra-judicial punishment on prisoners.
5. The constitutional invalidity was caused by the absence of judicial process relating to the disqualification at the time of his sentencing. What the outcome of such a hearing might be, in the words of Budd J., is “imponderable”, and “unascertainable”. Any “loss” resulting, even if it were quantifiable, is necessarily indirect. In general, it seems to me that the simple application of the law, as it stood for many years, could not in itself give rise to a claim in damages, or a finding of wrongdoing. These would be necessary to establish any claim.
98. The Court has been informed that, subsequent to the findings in the principal judgment, the Minister offered the appellant the sum of €7,500 by way of compensation or redress. Doubtless, this must be seen as a prudential tactical step. The respondents have accepted that “a component of the remedy should be an award of damages. For my part, on consideration of the case law, I cannot now see how, as a matter of logic, any entitlement for the appellant, great or small, can arise in this case. Nor can I see a principled basis for arriving at any particular figure other than by resort to a limited form of ab initio invalidity which, in Murphy, could be justified by explicit reliance on restitutionary principles based on retrospectivity. I do not see that the same rationale can apply here. I am not persuaded that the appellant’s rights, or the respondent’s conduct, are comparable to that in Murphy.
Conclusion
99. The conclusions set out in this judgment are in reliance on the authorities cited to the Court. The issues in this case gave rise to a consideration of matters which have not perhaps been previously analysed in this context. I believe that, having regard to the issues raised and considered, this is a case which has general public importance to be reflected in any costs award. This judgment does not purport to answer all the many difficult legal issues which arise in cases of this type. It simply seeks to answer the questions which arise on the facts of this case. For the reasons explained in this judgment, I would hold that the claim for compensation, no matter how characterised, whether as a statutory entitlement, or restitution, or as a constitutional tort, was unsustainable. I would hold the appellant is entitled only to a declaration in the form set out in this judgment. I would dismiss any claim for damages or compensation, and would simply make a declaration in the form set out in this judgment.