Cur. adv. vult.

Pursuant to the provisions of Article 26, s. 2, sub-s. 2 of the Constitution, the decision of the Court was pronounced by a single member.

Hamilton C.J.

18th June 1997

The decision of the Supreme Court on the reference to it by the President of the Equal Status Bill, 1997, pronounced pursuant to Article 26, s. 2, sub-s. 1 of the Constitution of Ireland on the 19th June, 1997.

The Reference

By order given under her hand and seal on the 7th May, 1997, the President, Mary Robinson, after consultation with the Council of State, in

---

[1997]	The Equal Status Bill, 1997	390
2 I.R.	Hamilton C.J.	S.C.

pursuance of the provisions of Article 26 of the Constitution, referred the Equal Status Bill, 1997 ("the Bill") to the Supreme Court for a decision on the question as to whether the said Bill or any provision or provisions thereof is or are repugnant to the Constitution or to any provision thereof.

Proceedings on the Reference

Counsel were assigned by the Court to argue that the Bill is repugnant to the Constitution.

Prior to the oral hearing, counsel assigned by the Court presented in writing heads of the argument intended to be made by them and submissions of law in support of such arguments.

These were replied to in writing on behalf of the Attorney General together with submissions of law on his behalf.

At para. 3.2.1 of the submissions filed on behalf of the Attorney General it is stated that:

"Section 71 of the Bill, which provides, inter alia, for vicarious liability of employers in relation to criminal offences, is in similar terms to s. 15 of the Employment Equality Bill, 1996. The latter provision has been held to be repugnant to Articles 38, s. 1 and 40, s. 1 of the Constitution in the decision of the Court in  The Employment Equality Bill,  1996. It is accepted by reason of that decision of the Court [that] s. 71 of the Bill appears repugnant to Articles 38, s. 1 and 40, section 1."

In para. 3.2.2 of the written submission it is stated that:—

"Section 40, sub-s. 3 of the Bill is in similar terms to the provisions of s. 63, sub-s. 3 of the Employment Equality Bill, 1996. This relates to the admission as evidence in a criminal prosecution of facts in a document certified by the Director. The Court has held that s. 63, sub-s. 3 of the Employment Equality Bill, 1996, is repugnant to Article 38, s. 1 of the Constitution and it appears the decision of the Court in relation to s. 40, sub-s. 3 of the Bill must be the same."

In para. 3.3.1 of the written submissions, it is submitted on behalf of the Attorney General that:—

". . . having regard to the conclusion of the Court as to its obligations under Article 26 upon such a reference in its decision in  The Employment Equality Bill, 1996,  the Court should now consider, not withstanding the repugnancy of s. 40, sub-s. 3 and s. 71, all the other provisions of the Bill, and in particular those which have been impugned

---

[1997]	The Equal Status Bill, 1997	391
2 I.R.	Hamilton C.J.	S.C.

by counsel assigned by the Court and give its decision upon the constitutionality of such provisions."

The Court considered that, in these circumstances, the procedure it should adopt was to hear at the outset arguments on behalf of the Attorney General in support of the submission that, notwithstanding the concession in paras. 3.2.1 and 3.3.3 of the written submissions that s. 71 and s. 40, sub-s. 3 appear to be repugnant to the Constitution, the Court should consider all the other provisions of the Bill, and in particular those which had been impugned by counsel assigned by the Court, and give its decision upon the constitutionality of such provisions.

On the 10th and 11th May, 1996, the Court heard oral submissions on this issue from counsel on behalf of the Attorney General and counsel assigned by the Court and at the conclusion of such oral submissions reserved its judgment.

Problems with regard to the Equal Status Bill, 1997

The aforesaid approach was adopted by the Court because of certain inherent and obvious difficulties which arose in connection with the Bill.

This Bill was passed by the Oireachtas on the 29th April, 1997, at a time when the Employment Equality Bill, 1996, had not been signed by the President in accordance with the provisions of Article 13, s. 3, sub-s. 1 of the Constitution but had by order given under her hand and seal on the 3rd April, 1997, been referred to the Supreme Court for a decision on the question as to whether the Employment Equality Bill, 1996, or any provision or provisions thereof were repugnant to the Constitution or to any provision thereof. The signature of the President is an absolute requirement before a Bill passed by both Houses of the Oireachtas is enacted into law.

Article 13, s. 3, sub-s. 1 of the Constitution provides that:—

"Every Bill passed or deemed to have been passed by both Houses of the Oireachtas shall require the signature of the President for its enactment into law."

Article 25, s. 1 of the Constitution provides that:—

"As soon as any Bill . . ., shall have been passed or deemed to have been passed by both Houses of the Oireachtas, the Taoiseach shall present it to the President for his signature and for promulgation by him as a law in accordance with the provisions of this Article."

Article 25, s. 4 provides:—

---

[1997]	The Equal Status Bill, 1997	392
2 I.R.	Hamilton C.J.	S.C.

"1. Every Bill shall become and be law as on and from the day on which it is signed by the President under this Constitution, and shall, unless the contrary intention appears, come into operation on that day.

2. Every Bill signed by the President under this Constitution shall be promulgated by him as a law by the publication by his direction of a notice in the Iris Oifigiúil stating that the Bill has become law."

Article 26, s. 1, sub-s. 3 of the Constitution provides that:—

"The President shall not sign any Bill the subject of a reference to the Supreme Court under this Article pending the pronouncement of the decision of the Court."

Article 26, s. 3, sub-s. 1 provides that:—

"In every case in which the Supreme Court decides that any provision of a Bill the subject of a reference to the Supreme Court under this Article is repugnant to this Constitution or to any provision thereof, the President shall decline to sign such Bill."

Notwithstanding these provisions, and the situation created thereby, the Oireachtas passed the Equal Status Bill, 1997, which Bill presumed that the terms of the Employment Equality Bill, 1996, had been enacted into law.

The Court pronounced its decision on the reference of the Employment Equality Bill, 1996, on the 15th May, 1997.

The Bill contains numerous references to the Employment Equality Act, 1997, when, in fact, no such Act existed at the time of the passing of the Bill because it had not been signed by the President or exists, because the Supreme Court having decided that certain provisions were repugnant to the Constitution the said Bill was not signed by the President.

It is unfortunate that the Oireachtas passed the Bill, at a time when the Employment Equality Bill, 1996, had been referred by the President to the Supreme Court for a decision as to whether it or any provision of it was repugnant having regard to the terms of the Constitution, because the Bill and the Employment Equality Bill, 1996, were inextricably linked; the Bill contained two sections viz. s. 40, sub-s. 3 and s. 71 which were, in all material terms, similar to the provisions of s. 63, sub-s. 3 and s. 15 of the Employment Equality Bill, 1996, which had been found by this Court to be repugnant to the Constitution; and some of the provisions of the Bill were dependant upon the enactment into law of the provisions of the Employment Equality Bill, 1996.

---

[1997]	The Equal Status Bill, 1997	393
2 I.R.	Hamilton C.J.	S.C.

Section 40, sub-s. 3 of the Equal Status Bill

Section 40, sub-s. 3 of the Bill provides that:—

"In any proceedings for an offence under this section, a document purporting to be certified by the Director and relating to the circumstances in which the offence is alleged to have occurred shall be received as prima facie evidence of the facts stated therein."

This provision in the Bill is in all relevant terms similar to the terms of the provisions of s. 63, sub-s. 3 of the Employment Equality Bill, 1996, which provides that:—

"In any proceedings for an offence under this section, a document purporting to be certified by the Director or to be sealed with the seal of the Court and relating to the circumstances in which the offence is alleged to have occurred shall be received as prima facie evidence of the facts stated therein."

By its decision on the reference to the Court of  The Employment Equality Bill, 1996  [1997] 2 I.R. 321 the Supreme Court decided that at p. 383:—

"The use of such a certificate is so contrary to the concept of affording a person a trial in due course of law as to render the provision contrary to Article 38, s. 1 of the Constitution. Accordingly on this ground the Court finds the provision repugnant to the Constitution."

Having regard to such finding and to the fact that counsel on behalf of the Attorney General has submitted no argument to the contrary, the Court must of necessity find that the provisions of s. 40, sub-s. 3 of the Bill are repugnant to the Constitution for the reasons set forth by the Court in its judgment on the reference to it of  The Employment Equality Bill, 1996 .

Section 71 of the Equal Status Bill, 1997

Section 71 of the Bill provides that:—

"(1) Anything done by a person in the course of the person's employment shall be treated for the purpose of this Act as done also by that person's employer, whether or not it was done with the employer's knowledge or approval.

(2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall be treated for the purposes of this Act as done also by that other person.

(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the

---

[1997]	The Equal Status Bill, 1997	394
2 I.R.	Hamilton C.J.	S.C.

employer took such steps as were reasonably practicable to prevent the employee—

1. (a) from doing that act, or

2. (b) from doing, in the course of the employee's employment, acts of that description."

This provision of the Bill is in all material respects identical with the terms of s. 15 of the Employment Equality Bill, 1996, which provided that:—

"(1) Anything done by a person in the course of his or her employment shall be treated for the purposes of this Act as done also by that person's employer, whether or not it was done with the employer's knowledge or approval.

(2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person, shall be treated for the purposes of this Act as done also by that other person.

(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee—

1. (a) from doing that act; or

2. (b) from doing in the course of his or her employment acts of that description."

In the course of its decision on the reference of  The Employment Equality Bill, 1996  [1997] 2 I.R. 321, to it the Court concluded at p. 374 that—

"to render an employer liable to potentially severe criminal sanctions in circumstances which are so unjust, irrational and inappropriate would make any purported trial of such a person not one held in due course of law and, therefore, contrary to Article 38, s. 1 of the Constitution and also repugnant to the provisions of Article 40, s. 1 of the Constitution."

In view of the fact that the provisions of s. 71 are similar to the provisions of s. 15 of the Employment Equality Bill, 1996, and the fact that the counsel for the Attorney General submitted no argument to the contrary, the Court is satisfied that, for the reasons stated in the course of its decision in the reference of the Employment Equality Bill that the provisions of s. 71 of the Bill are repugnant to the provisions of the

---

[1997]	The Equal Status Bill, 1997	395
2 I.R.	Hamilton C.J.	S.C.

Constitution contained in Article 38, s. 1 and Article 40, s. 1 of the Constitution.

Having regard to the admitted inevitability of such findings by the Court and the consequence that the President would be precluded from signing the Bill, the Court had sought submissions from counsel as to whether the Court was obliged to consider all the other provisions of the Bill and to decide whether any other provisions of the Bill were repugnant to the Constitution or any provision thereof.

The fact that provisions of the Bill were dependent upon the enactment into law of the Employment Equality Bill, 1996, is obvious, even from a consideration of the terms of the long title to the Bill and the numerous references contained therein to the Employment Equality Act, 1997.

The long title to the Bill provides that it is:—

"An Act to promote equality and to prohibit types of discrimination, harassment and related behaviour in connection with the provision of services, property and other opportunities to which the public generally has access, to provide for remedying certain discrimination and other unlawful activities, to provide for the administration by the Equality Authority of various matters pertaining to this Act and the Employment Equality Act, 1997, and to amend certain Acts in relation thereto."

The following sections of the Bill further illustrate the link between the Bill and the Employment Equality Bill, 1996, and its dependency on the enactment into law of the Employment Equality Bill, 1996.

Section 2 of the Bill provides, inter alia, that:—

"Director" means the Director of Equality Investigations referred to in section 38 of the Employment Equality Act, 1997."

Section 22 of the Bill provides, inter alia, that:—

"equality mediation officer" and "equality officer" shall be construed in accordance with the sections 38(4) and 38(5) of the Employment Equality Act, 1997."

Part III of the Bill deals with the enforcement of the provisions of the Bill and such enforcement is dependent on the existence of a "Director",and an "equality mediation officer" and an "equality officer".

No provision for the appointment of such officers is contained in the Bill.

Their appointments are/were dependent on the provisions of s. 38 of the Employment Equality Bill, 1996.

---

[1997]	The Equal Status Bill, 1997	396
2 I.R.	Hamilton C.J.	S.C.

Section 38, sub-s. 2 of the Employment Equality Bill, 1996, provided that:—

"The Minister, with the consent of the Minister for Finance, shall appoint a person to be the Director of Equality Investigations to perform the functions conferred on the Director by or under this Act or any other enactment."

Section 38, sub-s. 4 of the Employment Equality Bill, 1996, provided that:—

"Any person who, immediately before the commencement of this subsection, was holding office as an equality officer of the Labour Relations Commission shall, at that commencement and by virtue of this subsection, become, as an equality officer, a member of the staff of the Director."

Section 38, sub-s. 5 of the Employment Equality Bill, 1996, provided that:—

"From among the Director's staff the Director may—"

1. (a) appoint persons to be equality officers; and

2. (b) appoint persons, including those who are equality officers (whether by virtue of subsection (4) or of appointment under paragraph (a)) to be equality mediation officers;

3. and the Director may delegate any function conferred on the Director by or under this Act or any other enactment to an equality officer or equality mediation officer."

As the Employment Equality Bill, 1996, has not been enacted into law, and as the Bill does not provide for the appointment of either a Director, equality officers or equality mediation officers other than by reference to the provisions of the Employment Equality Act, 1997, the enforcement provisions contained in Part III of the Bill and including ss. 22 to 41 inclusive are inoperable.

Part IV of the Bill is expressed to deal with the "Equality Authority and related matters" and the provisions with regard to the powers and duties of the Equality Authority referred to therein are to a considerable extent dependent on the provisions of the Employment Equality Bill, 1996, and the presumption that the said Bill had been enacted into law.

Section 42 of the Bill provides, inter alia, that:—

"discrimination", in relation to a matter to which

1. (a) Parts I to III apply, means prohibited conduct as defined by section 2(1);

or

---

[1997]	The Equal Status Bill, 1997	397
2 I.R.	Hamilton C.J.	S.C.

(b) the Employment Equality Act, 1997, applies, means discrimination against a person that is in contravention of that Act or victimisation of a complainant within the meaning of Part V of that Act;

'equality clause' has the meaning given by section 2(1) of the Employment Equality Act, 1997;

'equality of opportunity', save in section 65, includes reference to any act that is in contravention of an equal remuneration term or equality clause under the Employment Equality Act, 1997;

'equal remuneration term' has the meaning given by section 2(1) of the Employment Equality Act, 1997."

With regard to "the Equality Authority" s. 43 provides that:—

"(1) The Equality Authority (re-named as such by section 38(1) of the Employment Equality Act, 1997) shall continue as a body corporate with perpetual succession and power to sue and be sued in its corporate name and to acquire, hold and dispose of land."

Section 38 of the Employment Equality Bill, 1996, had provided that:—

"(1) On and after the coming into force of this subsection, the Employment Equality Agency established by section 34 of the Employment Equality Act, 1977, shall be known as An t Údarás túdarásComhionannais or, in the English language the Equality Authority, and references in any enactment or other document to the Employment Equality Agency shall be construed accordingly."

It is obviously the intention of the Oireachtas that the powers of the Equality Authority would be those vested in it by the provisions of the Employment Equality Bill, 1996, and the Bill because the Bill provides at s. 77 thereof that:—

"The Employment Equality Act, 1977 is hereby repealed."

Consequently, the Equality Authority would be that created by s. 38, sub-s. 1 of the Employment Equality Bill, 1996.

The foregoing matters illustrate some of the problems created in relation to the Bill by the failure to enact into law the provisions of the Employment Equality Bill, 1996.

Issue as to whether the Court is obliged to decide whether the remaining or any other provision or provisions of the Bill are repugnant to the Constitution or any provision thereof

Counsel on behalf of the Attorney General has submitted that:—

---

[1997]	The Equal Status Bill, 1997	398
2 I.R.	Hamilton C.J.	S.C.

1. (1) The President has referred for the decision of the Supreme Court the question as to whether the said Bill or any provision or provisions thereof is or are repugnant to the Constitution or to any provision thereof;

2. (2) The reference is in similar terms to the reference of the Employment Equality Bill, 1996;

3. (3) Having regard to the conclusion of the Court as to its obligations under Article 26 of the Constitution upon such a reference as stated in its decision in  The Employment Equality Bill, 1996 [1997] 2 I.R. 321 the court should now consider, notwithstanding the repugnancy of s. 40, sub-s. 3 and s. 70 of the Bill, all the other provisions of the Bill and in particular those which have been impugned by counsel assigned by the Court and give its decision upon the constitutionality of such provisions.

In support of this submission she relied on the following passage contained in the decision of the Court given in ' In Re the Employment Equality Bill, 1996 ' at p. 333:—

"In the present case, the President has referred to us the question of whether 'the said Bill or any provision or provisions thereof' is repugnant to the Constitution. If, in the present case, the Court were to find one provision of the Bill unconstitutional and to say no more the Court might have not addressed the problem or problems which is or are causing the President concern. The result, in the event of the legislature attempting to introduce amending legislation, could be a second reference or series of references which would be singularly unsatisfactory to the President and to the legislature. Moreover counsel assigned by the Court have attacked several provisions of the Bill. Under these circumstances, the Court is obliged to consider the whole Bill and all its provisions, particularly those which have been impugned by counsel as being repugnant to the provisions of the Constitution."

It is important that this statement should be placed in its proper context. The two sentences immediately preceding this passage were as follows:—

"In the present case the Court is confronted by a novel and wide ranging reformist measure which is, apparently, to be followed by other similar legislation. Another Bill (the Equal Status Bill, 1997) has already been referred to the Court by the President."

The circumstances relating to the reference by the President of the Employment Equality Bill, 1996, were entirely different from those

---

[1997]	The Equal Status Bill, 1997	399
2 I.R.	Hamilton C.J.	S.C.

relating to the circumstances prevailing in regard to the reference of the Bill.

For the first time in the history of the reference procedure under Article 26, the President has referred to the Court a Bill which is known to contain provisions in similar terms in all material respects to provisions contained in a Bill referred on an earlier occasion which are now known to be repugnant to the Constitution. In the result, counsel on behalf of the Attorney General properly and unavoidably acknowledged that there were no submissions which they could advance to the Court in support of the constitutionality of either of these provisions of the Bill.

Counsel on behalf of the Attorney General has, however, submitted that, notwithstanding that concession, the Court should go on to consider the constitutionality of the provisions of the Bill which have been impugned in their written submissions by counsel assigned by the Court. It is urged on us that this is the duty of the Court, having regard to the provisions of Article 26.

The obligation imposed on the Court by Article 26, s. 1, sub-s. 1 and s. 2, sub-s. 1 is clear. It must decide every question referred to it by the President in accordance with the terms of Article 26. In the present case, the question referred by the President is as to whether the Bill or any provision or provisions thereof is or are repugnant to the Constitution or to any provision thereof. In the light of the concession already referred to, the answer to that question must be that s. 40, sub-s. 3 ands. 71 of the Bill are repugnant to the Constitution, for the reasons set out in the decision of this Court on the reference of the Employment Equality Bill.

It is in those unique circumstances, that the Court must consider whether it can—or should—proceed to consider the other provisions of the Bill.

The problem that had confronted the Court in the reference of the Employment Equality Bill, 1996, was whether it would have fulfilled its constitutional duty under Article 26, s. 2, sub-s. 1 to consider "every question referred to it by the President" and "pronounce its decision on such question", if it had decided that one provision was repugnant to the Constitution and the judgment had remained silent as to the rest of the Bill.

To a degree, at least, the Court modified its previous jurisprudence in this regard.

In the case of  The Housing (Private Rented Dwellings) Bill, 1981 [1983] I.R. 181 and  In re The Matrimonial Home Bill, 1993  [1994] 1 I.R. 305 the Court took the view that generally on such a reference, if the

---

[1997]	The Equal Status Bill, 1997	400
2 I.R.	Hamilton C.J.	S.C.

Court found one provision of the referred Bill unconstitutional, it should remain silent concerning other provisions of the Bill.

As stated in the judgment of the Court in  The Housing (Private Rented Dwellings) Bill , 1981 [1983] I.R. 181 atp. 186:—

"It is to be noted that the Court's function under Article 26 is to ascertain and declare repugnancy (if such there be) to the Constitution in a referred bill or in the specified provision or provisions thereof. It is not the function of the Court to impress any part of a referred bill with a stamp of constitutionality. If the Court finds that any provision of a referred bill or of the referred provisions is repugnant, then the whole bill fails, for the President is then debarred from signing it— thus preventing it from becoming an Act. There thus may be areas of a referred bill or of referred provisions of a bill which may be left untouched by the Court's decision."

The Court went on to say:—

"it is for this reason that for it [the Court] 'to impress any part of a referred bill with a stamp of constitutionality' would be for it to act without constitutional authority and in disregard of the constitutional doctrine of the separation of powers."

Because of the particular circumstances of the Employment Equality Bill, 1996, reference, if the Court had simply disposed of the Bill after a preliminary finding that a particular provision or particular provisions were repugnant and had remained silent as to the remainder of the Bill, the Court would have not have addressed other pressing questions and the ultimate result would have been (as stated in the judgment) at p. 333 that

"in the event of the legislature attempting to introduce amending legislation . . . a second reference or series of references [might have been necessary] . . . which would be singularly unsatisfactory to the President and to the legislature."

Therefore, the Court's decision comprehensively to review the Employment Equality Bill, 1996, was appropriate to the particular circumstances of that Bill.

The circumstances relating to the reference by the President of the Employment Equality Bill, 1996, were entirely different from those relating to circumstances prevailing in regard to the present reference.

As counsel assigned by the Court submitted, Article 26 must be read in tandem with Article 15, s. 4, sub-s. 1 of the Constitution which provide that "the Oireachtas shall not enact any law which is in any respect repugnant to this Constitution or any provision thereof". It was further submitted that the presumption of constitutionality in relation to Acts

---

[1997]	The Equal Status Bill, 1997	401
2 I.R.	Hamilton C.J.	S.C.

passed by the Oireachtas or in the referred Bill, could not apply where either contained provisions which were manifestly repugnant to the Constitution. The repugnancy existing in s. 71 and s. 43, sub-s. 3 of the Bill has been demonstrated in the previous decision of the Court in the Employment Equality Bill, 1996, reference.

In the first instance the Employment Equality Bill, 1996, having been passed by both Houses of the Oireachtas, was entitled to the presumption that no provision thereof was repugnant to the Constitution because as stated in the course of the decision:—

"This Court has held in many previous decisions including  The Criminal Law (Jurisdiction) Bill, 1975  [1977] I.R. 129,  The Electoral Amendment Bill, 1983  [1984] I.R. 268,  The Adoption (No. 2) Bill, 1987  [1989] I.R. 656,  In re the Matrimonial Home Bill, 1993  [1994] 1 I.R. 305 and the  Information (Termination of Pregnancies) Bill, 1995 [1995] I.R. 1 that there must be applied by the Court to a Bill referred to it by the President pursuant to Article 26 a presumption of constitutionality."

As the Employment Equality Bill, 1996, and all its provisions enjoyed the presumption of constitutionality the onus on counsel assigned by the Court who sought to impugn certain provisions of this Bill was clearly to establish such repugnancy. Counsel on behalf of the Attorney General had argued that none of the provisions of that Bill was repugnant to the Constitution or any provision thereof.

The Court, having heard these arguments from both counsel assigned by the Court and counsel on behalf of the Attorney General considered that it was obliged to consider the whole of the Employment Equality Bill, 1996, and all its provisions particularly those which had been impugned by counsel as being repugnant to the provisions of the Constitution and did so.

A different situation arises in connection with the reference of the Bill in this case.

The Bill was passed by the Oireachtas at a time when the members of the Oireachtas knew that the Employment Equality Bill, 1996, had not been enacted into law by reason of the fact that the Bill had not been signed by the President as required by Article 13, s. 3, sub-s. 1 of the Constitution but had been referred by the President pursuant to the provisions of Article 26 of the Constitution to the Supreme Court for a decision as to whether the said Bill or any provision or provisions thereof was or were repugnant to the Constitution or any provision thereof.

---

[1997]	The Equal Status Bill, 1997	402
2 I.R.	Hamilton C.J.	S.C.

The Bill as passed by both Houses of the Oireachtas contained references to the Employment Equality Act, 1997, and provisions, which for their application and enforcement were dependant on the enactment into law of the Employment Equality Bill, 1996.

In spite of the fact that the Bill contained references to an Act which had not been enacted into law it was presented to the President for signature and for promulgation in accordance with the provisions of Article 25, s. 1 of the Constitution.

It is admitted by counsel on behalf of the Attorney General that certain provisions of the Bill are inoperable because of the decision of the court that the Employment Equality Bill, 1996, was repugnant to the Constitution. She submits, however, that the mere fact that a Bill is, in part, inoperable, does not of itself make it unconstitutional. The Court accepts this submission.

But, in addition to the provisions of the Bill which are inoperable, the Bill contains two provisions which are unconstitutional. Once the Court, at the outset of its deliberations, knows that portions of the Bill are indisputably repugnant to the Constitution, it is difficult to see why the Court should embark on a consideration of other provisions of the Bill. In this context the fact that among these other provisions are many provisions which are admittedly inoperable seems to illustrate the futility of any such exercise.

The President has referred the Bill to this Court for a decision on the question as to whether the Bill or any provision or provisions thereof is or are repugnant to the Constitution or to any provision thereof.

At the outset of the oral hearing, the Court found itself confronted by a Bill which contains two sections which were and are indisputably repugnant to the Constitution. As a result the Bill enjoys no presumption of constitutionality. There is no presumption for counsel assigned by the Court to rebut and no justiciable issue for the Court to try. This is a totally different situation from that which arose in the course of the Court's deliberations on the Employment Equality Bill, 1996.

Under these circumstances, it is sufficient for the Court to decide that s. 40, sub-s. 3 and s. 71 of the Bill are repugnant to the Constitution.

The President will be so informed.

I certify this to be the judgment and decision of the Supreme Court pronounced on the 19th June, 1997.