Supreme Court declares pension provision unconstitutional but awards €10,000 to avoid windfall gain.

THE SUPREME COURT

Record No: 89/2016

Clarke C.J.

O’Donnell J.

McKechnie J.

MacMenamin J.

O’Malley J.

Between/

C

Appellant

And

The Minister for Social Protection, Ireland and the Attorney General

Respondents

Judgment of Mr. Justice Clarke, Chief Justice, delivered the 28th of November 2018

1. I agree with the judgment of O’Donnell J. both as to the conclusions reached and as to the reasoning leading to those conclusions.

1.2 I also agree with the observations made by McKechnie J. in his concurring judgment as to:-

(a) The exceptionality of the circumstances in which it would not be appropriate to make an immediate declaration of

unconstitutionality and the reasons why a declaration should be made in this case today;

(b) The undesirability of a Minister, either directly or indirectly, seeking to engage with the Court on the form of legislation

which might be proposed in circumstances where a declaration of inconsistency with the Constitution either has been

made on a deferred basis or is due to be made after an adjourned period following on from the delivery of a judgment

determining such inconsistency; and

(c) The fact that it may be necessary, in an appropriate case, to explore in greater detail the proper approach to be

adopted in cases such as Murphy v. The Attorney General (1982) IR 241 and, indeed, this case where part of a statute is

declared inconsistent with the Constitution, thus giving rise to a situation where the remainder of the statute is in force

but in a form which was not contemplated by the Oireachtas.

1.3 It certainly does not follow that the constitutional justice of cases such as those mentioned at (c) above necessarily requires

that a person be entitled to the full benefit of a statute in a form which might never have been enacted (or at least enacted in the

same way) had the impugned provision been known to be inconsistent with the Constitution at the time of the passage of the

legislation concerned. Such an approach underlies the view expressed by O’Donnell J. in his judgment, with which I concur, that

persons who have not challenged the provision in question cannot expect to obtain a windfall gain because it happens to be struck

down in part. But it also follows that a court may have to do the best it can in fashioning a just solution in all the circumstances of

the case.

1.4 It would be wrong, for the reasons identified by McKechnie J. in his judgment, to attempt to second guess the precise measures

which the Oireachtas might have introduced had it been aware that the provision now struck down was inconsistent with the

Constitution less still to engage with the question of the measures which the Oireachtas might now consider putting in place given the

declaration of inconsistency with the Constitution which is to be made today.

1.5 However, it is sufficient for present purposes to acknowledge that there are a wide range of potential measures which might have

been or might now be introduced which would fall short of conferring on Mr. C the entitlement to obtain a full pension. To hold that he

is retrospectively entitled to a full pension as a consequence of the declaration of inconsistency with the Constitution being made

today would, therefore, be to confer a windfall gain on him.

1.6 Against that background I am in agreement that the sum of €10,000 proposed in the judgment of O’Donnell J. meets the justice of

this case but, like McKechnie J., I would reserve the right to revisit the precise approach which may be appropriate in cases such as

this should that question arise again.