IESC 57 · Supreme Court

AN CHÚIRT UACHTARACH

THE SUPREME COURT

89/2016

Clarke C.J.

O’Donnell J.

McKechnie J.

MacMenamin J.

O’Malley J.

Between/

P.C.

Appellant

AND

The Minister for Social Protection, Ireland and the

Attorney General

Respondents

Judgment of O’Donnell J. delivered the 28th day of November 2018

Introduction

1 On 27 July 2017, this court delivered a judgment (MacMenamin J.; Denham C.J., McKechnie, Clarke and O’Malley JJ. concurring) on

the substantive appeal from the decision of the High Court, which had refused to dismiss the challenge to the non-payment of State

pension (contributory) to the appellant pursuant to s. 249(1) of the Social Welfare (Consolidation) Act 2005 (“the 2005 Act”). The

judgment of MacMenamin J. at para. 65 concluded that “the State may not operate a disqualification regime that applies only to

convicted prisoners and, thereby, constitutes an additional punishment not imposed by a court dealing with an offender”. However,

the court did not immediately proceed to make a declaration of invalidity in relation to s. 249(1), or any portion thereof. Instead,

adopting a course which had been recently applied in the decision of N.H.V. v. Minister for Justice and Equality [2017] IESC 35,

[2018] 1 I.R. 246 and discussed in Persona Digital Telephone Ltd. v. Minister for Public Enterprise [2017] IESC 27, (Unreported,

Supreme Court, 23 May 2017), the court adjourned the matter for a limited period to allow the parties to make submissions on the

question of the remedy, on the facts of the particular case.

2 While this development has been described as a “suspended declaration”, which is a term applied to a technique adopted in some

jurisdictions, it is apparent that the approach of the court in the cases mentioned has been rather more tentative. A suspended

declaration involves the making of a declaration of invalidity but directing that it shall not come into effect for a given period. In these

cases, the court has not made a declaration, but rather has adjourned the question of determination of the appropriate remedy

(which may include a declaration of invalidity). Indeed, in theory it may be open to the court to now declare that s. 249(1) was

invalid and of no effect from the date of its passage into law, and did not authorise or permit any step taken after the delivery of the

judgment. Nevertheless, the practical effect of the order made in this case is to indicate an unconstitutionality, but to leave in place

the legislative provision, permitting prima facie the continued operation of a law considered to be inconsistent with the Constitution

for the period between the delivery of the judgment and the making of any formal order. Viewed in that way, the order raises many of

the issues involved in the making of suspended declarations of invalidity, and has been discussed in this case by reference to the

scholarly debate in this jurisdiction and elsewhere on the appropriateness of making such orders, which is helpfully considered in the

judgment MacMenamin J. delivers today.

3 The court took the course of adjourning consideration of the appropriate order to make in this case because, not alone were the

provisions of statute themselves somewhat complex and the subject of repeated amendment and adjustment, but much of the

argument in the case focussed upon the effect of the interaction between the provisions of the 2005 Act (as amended), and

regulations made pursuant to the Act and contemplated by s. 249. Furthermore, the precise basis of the inconsistency with the

Constitution identified in the judgment was itself rather nuanced. It is necessary, therefore, to touch briefly on those issues once

again, to set out the issue to be determined in this judgment.

4 Section 249 of the 2005 Act can be traced back to the early days of a modern welfare state, and indeed to the provisions of the

Old Age Pensions Act 1908. In effect, s. 249 provides for the disqualification from identified social welfare benefits of certain classes

of persons, which prima facie disqualification was, however, subject to regulations which could be made under the Act. In broad

terms, s. 249(1) provides for the disqualification of persons outside the State, and those undergoing imprisonment or detained in

lawful custody, from receiving benefits under Part 2 of the 2005 Act. Section 249(2) makes similar provision in relation to any portion

of benefit payable to a person in respect of a spouse where that spouse is either absent from the State or undergoing imprisonment

or detained in legal custody. Similarly, s. 249(6) makes provision in respect of unemployment assistance, pre-retirement allowance and

disability allowance while a person is resident temporarily or permanently outside the State, or once again, undergoing imprisonment or

detention in legal custody. Section 249(1) was the operative provision in this case, and accordingly the one to which attention was

focussed, but it is plain that the reasoning of the court is equally applicable to other disqualifications from benefits. Section 249(1)

(as amended) provides, so far as is relevant:

“Except where regulations otherwise provide, a person shall be disqualified for receiving any benefit under Part 2 (including

any increase of benefit) for any period during which that person—

(a) is absent from the State, or

(b) is undergoing imprisonment or detention in legal custody.”

5 However, regulations made under the 2005 Act have cut down the sweep of the statutory disqualifications provided for under ss.

249(1), (2) and (6). It can be said that this outcome was contemplated by the opening words of s. 249(1): “[e]xcept where

regulations otherwise provide”. Neither the power to make such regulations, nor the terms of the regulations themselves, were,

however, challenged in these proceedings. Instead, the existence of the regulations and their terms was an important linchpin of the

appellant’s case. It is sufficient for present purposes to refer to Article 218 of S.I. 142/2007 – Social Welfare (Consolidated Claims,

Payments and Control) Regulations 2007 (“the 2007 Regulations”). That provides that s. 249 shall not operate so as to disqualify a

person for receiving a series of benefits where a person is lawfully detained in any institution for the treatment of mental illness or

infectious disease, with the exception of a person whose detention is consequent upon a finding of not guilty by reason of insanity

under the provisions of the Criminal Law (Insanity) Act 2006. Furthermore, s. 249 does not apply where a person was detained in

lawful custody in respect of his or her being charged with a criminal offence, and the charge is subsequently withdrawn or he or she is

acquitted. Finally, even in a case where detention is consequent upon a conviction, the disqualification in respect of certain benefits

does not apply if the imprisonment is undergone as an alternative to payment of a fine. The clear thrust of the regulations, therefore,

was to cut down the sweep of the disqualification under s. 249 and, in broad terms at least, to limit it to the case of a person

convicted and sentenced to imprisonment for a criminal offence, or tried for a crime and found not guilty by reason of insanity. Since,

however, such persons were not disqualified for disability allowance by virtue of the provisions of s.249(1A)(c) of the 2005 Act, the

practical consequences of the exemptions contained in the regulations appears to be that the only persons to whom the s. 249

disqualification provision applied were those sentenced to imprisonment by a court following lawful conviction.

6 It becomes apparent, on consideration of the somewhat complex provisions of the 2005 Act and the 2007 Regulations, that, since

most of the benefits are contributory and in the nature of a pension, that the class of person likely to be affected will be a person of

such an age as to otherwise be entitled to receive such benefits, who has sufficient history of employment to accumulate such

benefits, but who has nevertheless been found guilty of a crime of sufficient seriousness to require a significant jail sentence. In this

case, the appellant was convicted on a number of counts relating to serious offences committed against a family member. He was

sentenced to a lengthy term of imprisonment, and his anticipated release date is in 2020.

7 The appellant challenged the provisions on a number of grounds, but significantly for present purposes, the court did not hold for

the appellant on the wider grounds asserted, but rather determined that the effect of the narrowing of the disqualification by the

2007 Regulations was to render the disqualification a further punishment for a criminal offence. This, the court concluded, was an

interference with the administration of justice, since the process of trial, adjudication and sentence are integral aspects of the

administration of justice in criminal matters, consigned by the Constitution to the courts, and which cannot be conferred upon any

other body. It followed from this reasoning that if the disqualification had not been limited to persons convicted, but if, for example, it

included other persons lawfully detained by the State, and whose accommodation and upkeep was therefore paid for by the State, or

if the disqualification was imposed by the court at the sentencing stage rather than by statute, then such provisions might pass

constitutional muster. On this reasoning, there was nothing per se offensive to the Constitution in the State excluding payment of (at

least some) benefit to a person whose detention was provided for by statute, and equally nothing offensive in the idea that in the

case of persons convicted and sentenced to imprisonment, such an order could in an appropriate case be made by a sentencing

court. Furthermore, since the unconstitutionality identified was located in the interaction of the regulations and the statute,

questions necessarily arose as to how any determination of the inconsistency of the resulting situation with the Constitution could or

should be remedied. For these reasons and others, it was understandable that the court adopted the course of adjourning

consideration of the appropriate order to be made.

Submissions of the parties

8 This court has now had the benefit of detailed submissions by the parties as to the appropriate orders to be made. Full submissions

have addressed the jurisdiction to suspend any declaration of invalidity, or to make a determination of inconsistency with the

Constitution, but adjourn the making of a declaration of invalidity. It is useful, therefore, to address that question first.

9 The appellant’s starting position is that, although the catalyst for the finding of unconstitutionality is to be found in the terms of

the 2007 Regulations, there is no basis for declaring invalid only those portions of the regulations which limited the statutory

disqualification. That would be to penalise persons not before the court and who had never had the opportunity of addressing

argument on the issue. The focus of the case before the court should be on the provisions of s. 249(1), or more precisely that portion

which imposed a disqualification in the case of imprisonment on conviction. Whatever its effect when enacted, it now applied only to

convicted persons, and once that was acknowledged, the court should proceed immediately to declare the section invalid, or at least

make a declaration of invalidity in respect of that portion applicable to imprisonment, since no issue arose in this case in relation to

disqualification where a person was outside the State. The appellant also says that it follows, then, that he is entitled to receive

damages including, but not limited to, the amount of the pension unpaid.

10 The appellant points out that the Constitution says nothing about suspending declarations of invalidity. Insomuch as the

Constitution addresses the consequences of any judicial finding of invalidity, it does so in the terms of Article 15.4, which provides in

the first place a prohibition on the enactment by the Oireachtas of any legislation which is in any respect repugnant to the

Constitution. Article 15.4.2° then provides:

“Every law enacted by the Oireachtas which is in any respect repugnant to this Constitution or to any provision thereof,

shall, but to the extent only of such repugnancy, be invalid.”

11 The appellant accepts that techniques for suspending a declaration of invalidity have been adopted in other jurisdictions such as

South Africa and Canada. In the case of South Africa, the power is expressly conferred by the Constitution itself. While there is no

such express provision in the Canadian Charter of Rights and Freedoms, the appellant argues that the constitutional order in that

jurisdiction is so different from that obtaining here that it cannot be a guide for an Irish jurisprudence. Instead, it is said that the Irish

courts have always adopted the simple and, I think it is implied, principled clarity of the immediate declaration of invalidity, and that

there was no reason to depart from that position. On this view, s. 249(1)(b) was invalid, and indeed ought to have been declared

invalid as of 27 July 2017, and should in any event be immediately declared invalid.

12 I agree that this matter must be approached as a matter of interpretation of the Irish Constitution. Nevertheless, the Canadian

experience in particular is useful in identifying the type of cases in which it has been thought, at least in that jurisdiction and others,

to give rise to a type of problem where an immediate declaration of invalidity would cause substantial difficulty. Some of the issues

were reviewed in Schachter v. Canada [1992] 2 S.C.R. 679. There, a male parent who intended to stay at home to care for his new-

born child contended that legislation unlawfully discriminated against him in that it only permitted maternity leave payments to be

made available to a mother, while at the same time a similar benefit was available (under a separate and later statutory provision) to

adoptive parents on a gender neutral basis. In that case, the leave could be shared between the parties as they saw fit. This raised

a problem which is often encountered in equality claims, and in particular those in which it is suggested that the constitutional

infirmity lies not in the specific provision, or the grant of a benefit granted by it, but rather by the fact that it is under-inclusive, in

that the benefit does not extend to all the people who are similarly situated and who therefore as a matter of equality should be

entitled to it. However, to merely strike down the provision would not benefit the excluded persons, but rather would penalise the

persons who already received and were entitled to receive the benefit. A variant of this issue arises in this case in relation to the

argument that the provisions of the 2007 Regulations, which reduced the scope of the statutory disqualification, should be struck

down, as opposed to striking down the disqualification contained in the 2005 Act. This would broaden the disqualification outside the

case of convicted prisoners, and thus arguably remove the source of the unconstitutionality identified, but at the price of

disqualifying persons who hitherto had been entitled to receive social welfare, which is, to say the least, an unattractive outcome. In

Schachter, a similar problem could be identified: if the statute was struck down, then no natural parents would be entitled to

maternity benefit. Hence, it became necessary to consider whether that was the only possible order a court could make in the light of

its findings that the failure to extend the benefit to natural fathers was incompatible with the Charter.

13 The Supreme Court of Canada held that it could not declare that natural parents were entitled to benefit on the same basis as

adoptive parents. That would be to encroach on the sphere of the legislature and to do something that the legislature could have

done but did not do. The only remedy available was to declare the invalidity of the provision. However, the majority of the court

considered that the court was entitled to suspend that declaration of invalidity to allow parliament to amend the legislation in a

manner consistent with the obligations of the Charter as interpreted by the court. It is important to recognise that this suspension of

the declaration had the effect of allowing a situation, determined to be incompatible with the Charter, to continue and to have effect

for a limited time. Natural parents could only obtain maternity benefits for the female partner. In effect, it was considered that that

situation, determined by the court to be inconsistent with the Charter, was preferable in the short term to wholesale removal of

benefits from parties entitled to it, even though such removal, though brutal, would not be inconsistent with the Charter obligation of

equality. All natural parents would be treated equally, though equally badly. In deciding instead to suspend the declaration of

incompatibility, the Canadian Supreme Court was extending a technique adopted in previous cases where the striking down of the

provision posed a potential danger to the public. One example given has resonances in recent Irish litigation. In R v. Swain [1991] 1

S.C.R. 933, the court struck down provisions for the automatic detention of a person acquitted by reason of insanity because of the

failure to provide for some sort of hearing for consideration of whether such detention was necessary in any individual case. However,

to have removed the only statutory provision permitting detention of all individuals found not guilty by reason of insanity would have

posed a clear danger to the public. Accordingly, the court suspended the declaration of invalidity to permit remedial legislation. A

further category in which this technique had been considered applicable was where the striking down of the legislation would pose a

threat to the rule of law. Here, reference was made to the decision in Re Manitoba Language Rights [1985] 1 S.C.R. 721. In that

case, it had been found that the failure to translate legislation in Manitoba into French was a breach of the Manitoba Act 1870, and,

furthermore, that such breach meant that no such legislation was in force and effect. Faced with the prospect that the logical

consequence of the determination was to render all legislation enacted in this way ineffective, the court made a declaration of

invalidity, but suspended it and allowed a quite generous period of time to remedy the issue.

14 These categories are not fixed, and the jurisprudence has developed. There are other circumstances in which the Canadian court

will make a suspended declaration. As discussed in the judgment of MacMenamin J., the technique as applied in Canada is now

arguably the norm rather than the exception. It is noted in Hogg, Constitutional Law of Canada, Vol. 2 (5th edn., Carswell, 2007) at

p.187 that, “while s. 52(1) [of the Constitution Act 1982] requires a court to hold that an unconstitutional statute is invalid, the

courts have assumed the power to postpone the operation of a declaration of invalidity. When a court exercises this power, the

effect is to grant a period of temporary validity to an unconstitutional statute, because the statute will remain in force until the

expiry of the period of postponement”. However, Hogg notes that the law has developed beyond the category of cases contemplated

in Schachter v. Canada [1992] 2 S.C.R. 679 to a more general position of ‘dialogue’ in which the court prefers the legislature to design

an appropriate remedy. It is observed however “this is not an abdication of responsibility by the court, because if the legislature

chooses to take no action during the period of suspension, the court’s declaration of invalidity will take effect. But the period of

suspension gives to the legislature the first opportunity to remedy the constitutional wrong”. It is not necessary to consider whether

such a development would be possible or desirable in the Irish context. What is involved in this case, while perhaps relatively

uncharted territory in this jurisdiction, is minimal in comparison to developments in other jurisdictions, the merits of which in an Irish

context would require much thought. These cases are enough however to illustrate the problem to which the suspended declaration is

addressed, and which are replicated in other jurisdictions with a system of judicial review of legislation. They are all examples of

pressing situations where there were strong countervailing considerations, and where the grant of a declaration with immediate effect

would cause a very serious problem, which might be considered to be more damaging, at least in the short term, than the

unconstitutionality identified.

15 Even more extreme circumstances could be envisaged and have arisen in other jurisdictions. One example is where the flaw relates

to the election, or legal constitution, of a legislature, and where immediate invalidity might be simply incapable of remedy, or worse,

might remove the only mechanism for remedying the flaw. But the fact that the solution proposed, of suspending the declaration of

unconstitutionality in such circumstances in other jurisdictions seems reasonable and sensible, even necessary, does not mean it is

constitutionally permissible under the Irish Constitution. Indeed, it is argued here that what is sensible and reasonable must give way

to principle, no matter how inconvenient the result. It would not be fair to dismiss this argument as merely a narrow and inflexible

absolutism. Part of the appeal of constitutional guarantees of rights is the belief that they contain enduring truths which cannot and

should not be compromised. This is indeed a familiar argument for the rule of law: justice must be done whatever the consequences.

But that in turn only leads to a deeper question as to what the doing of justice entails. This may be a particularly troublesome

question where the issue involves not just the resolution of litigation between the parties but where the outcome may directly affect

many others not before the court.

16 It is interesting, if no more, that the terms of s. 52 of the Canadian Constitution Act 1982 bear resemblance to Article 15.4.2° of

the Constitution, although Art 15.4.2° is, if anything, in stronger terms. Section 52(1) provides:-

“The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the

Constitution is, to the extent of the inconsistency, of no force or effect.”

It is apparent that the Canadian courts have interpreted this provision as authorising the making of suspended declarations in

particular cases. However, it cannot be asserted that the text of s. 52 leads inevitably to the conclusion that the courts of Canada

had a jurisdiction to suspend a declaration of invalidity, and still less does it follow that Article 15.4.2° must be read to lead to the

same result. It is clear that there is scope for differing approaches, and the issue must be approached by reference to principle, the

terms of the Constitution and the legal order which it establishes, and in that context with such assistance as may be gained from

developments elsewhere.

17 N.H.V. v. Minister for Justice and Equality [2017] IESC 35, [2018] 1 I.R. 246 was itself an unusual case. The unconstitutionality

identified in the judgment related not to a particular provision standing alone but to the interaction of two different statutory

provisions, neither of which was per se offensive to the Constitution. Asylum seekers were prohibited from working while their case

was being processed through the refugee system. There was no time limit on the asylum process for the determination of

applications. Neither provision was itself necessarily offensive, but the combined effect was that the ban on work on asylum seekers

was unlimited, and this, the court concluded, was inconsistent with the Constitution. It followed, from the reasoning of the court,

that the unconstitutionality could be addressed either by imposing some qualification or limitation on the employment ban, or by

maintaining an absolute ban while a case was in the asylum system, but limiting the period for that process. The incompatibility with

the Constitution could be addressed in theory by removing one or other provision. While the court’s jurisdiction was simply to make an

order and to ensure that the aspect of the legislative machinery found inconsistent with the Constitution was removed, that could be

done in a number of different ways. If, for example, the executive and legislative branches had decided to limit the period for

processing refugee applications, it would not have been necessary to make a formal declaration of invalidity of legislation. There was

therefore some logic, and it was arguably consistent with the separation of powers, to allow some time for the other branches of

government to choose the method by which the law could be brought into conformity with the Constitution, since the underlying

policy choice is not in principle a matter for the courts, but rather for the executive and legislative branches. Where two or more

provisions of legislation, standing alone are unobjectionable, but which in combination exceed what is constitutionally permissible, it

does not seem inappropriate, to allow the legislature the opportunity of choosing which provision should fall. It is of course a step

further to allow an opportunity to amend one or other piece of legislation to bring the overall situation into conformity with the court’s

judgment. In a clear and simple case, this may be straightforward. The amendment may be obvious to all concerned. But it must be

recognised that in more complex situations, there is a temptation for the legislative and executive branches to seek to put forward an

amendment and seek the courts’ approval of it. It is however not normally a function of the court, or any part of the litigation

process, to address the compatibility with the Constitution of some new proposed piece of legislation (which has not been the subject

of any challenge) and it may be that the appropriate course for a court to take in such circumstances is to adopt a default position

that, unless it is demonstrable that the course adopted makes it unnecessary, the court should proceed to declare the provisions

invalid, and to make a straightforward declaration to this effect.

18 It is apparent therefore, that to date the Court has acted cautiously in this regard and that N.H.V. v. Minister for Justice and

Equality [2017] IESC 35, [2018] 1 I.R. 246 is not itself authority for more ambitious use of the technique. The presumptive approach

is that other than in cases of references pursuant to Article 26, the manner in which courts exercise jurisdiction to ensure that

legislation post enactment with the Constitution is compatible with it, is through inter partes litigation. It is for the appellant in the

first place to identify the provision challenged, and for the court to determine in light of argument whether that challenge or any

modification thereof is sustained. If the challenge is upheld, then the normal outcome will be the invalidation of the provision identified

by the appellant and no more. This indeed was set out in the further ruling delivered by Clarke C.J., when the matter in N.H.V.

returned to this court. In an ex tempore judgment on 30 November 2017, Clarke C.J. pointed out the exceptional nature of the

adjournment and continued: -

“Exceptionally the Court did not take the normal course of immediately declaring the relevant legislative provisions to be

unconstitutional thus rendering them of no continuing legal effect. Rather, the Court in its judgment recognised that there

were choices to be made as to how the difficulty which had been identified by the Court in its judgment was to be

addressed and that at least the first port of call in making those choices rested with the legislature.

3. It does have to be strongly emphasised that the general rule must be that, on finding a measure of legislation to be

unconstitutional, the Court should immediately declare it to be so and thereby render it inoperative under the terms of the

Constitution. While the Court has not as yet had the opportunity to consider in any detail the parameters of any

exceptional circumstances which might allow the Court to depart from that general proposition, nonetheless it must be

made clear that the circumstances in which it would be appropriate for the Court not to follow the general rule must

necessarily be exceptional. The Court has identified this case as one in which such exceptional circumstances did arise.

4. However, in the Court’s view, there are significant limitations on the appropriate scope of further interaction between

the Court and the parties. I appreciate that it has not been sought on the part of the State that the Court should involve

itself in any approval or discussion as to the merits of the choices which the State has now made or the choices which

were available to the State at the time when the Court gave judgment. But nonetheless, it is important to emphasise that

the whole point of the affording of a period of time to the State was to allow the Legislature to make the decisions which

it has to make. It must be emphasised the Court has no role in those matters.”

In the circumstances, the court indicated simply that it would sit again on Friday 9 February 2018 to make the declaration of invalidity

sought by the applicant, and in the event did so.

19 While therefore it is apparent that what occurred in N.H.V. v. Minister for Justice and Equality [2017] IESC 35, [2018] 1 I.R. 246 is

at perhaps the furthest end of the spectrum from the type of suspended declaration and so-called constitutional dialogue

contemplated by some authors and authorities, it nevertheless must be accepted that stripped to its essence, even the limited

development in N.H.V. has some of the features of the suspended declaration which has given rise to legitimate questions of principle.

This issue arises because constitutional litigation, while conducted inter partes, has effect erga omnes. As it happened, the plaintiff

in N.H.V was no longer an asylum seeker by the time of the court’s decision, and indeed had been employed, and accordingly a

declaration of invalidity would have conferred no direct benefit upon the only plaintiff before the court. On the other hand, others in

the system would have benefitted from an immediate declaration of invalidity. Therefore, those persons, some at least of whom could

have asserted the unconstitutionality as successfully as N.H.V., since their situation may have been just as extreme, and others, who

although their personal situation would not necessarily have grounded a challenge, would nevertheless have benefitted from the

invalidity of the legislative ban, were all deprived of that benefit by the fact that the court had adjourned the making of the order

declaring the provision invalid. The statutory ban on employment remained in place for that period. The threshold question arises as to

whether even this relatively minimal step is consistent with the Constitution. The appellant in this case asserts that it is not.

20 The language of Article 15.4.2° does not put the issue beyond doubt, but it does perhaps offer some guidance. While it requires

the invalidity of any legislative provision found repugnant to the Constitution, it also seems to require that the remedy be precisely

tailored to exercise the offending element and no more. Thus the provision may be invalid “but to the extent only of such repugnancy”

(emphasis added). This is a clear direction to match the remedy to the wrong. Furthermore, the jurisdiction to determine repugnancy

of post–1937 legislation and the inconsistency of legislation prior to that date is conferred upon the ordinary courts of law, and not

for example on a special constitutional court or administrative body not necessarily composed of lawyers. The function of those

ordinary courts is to administer justice, in most cases by litigation inter partes. The administration of justice between parties, is

extended by the 1937 Constitution to matters of constitutional validity. Thus it is provided that the High Court, by Article 34.3.1°

shall have “full and original jurisdiction” to determine all matters whether in law or fact, civil or criminal. By the following subsection, it

is provided that jurisdiction “shall extend” to the question of the validity of any law having regard to the provisions of the

Constitution. It follows therefore, that the Constitution contemplates that the issue of constitutional validity will be determined in the

courts of justice and by implication, by reference to the procedures, techniques and approaches adopted over years in the

administration of disputes, whether of private or public law. It is true therefore that the Constitution shall not expressly provide for

the suspension of any declaration of invalidity, but in fact the Constitution says nothing about the making of a declaration, at all. A

declaration is a discretionary relief in law or equity, the availability of which has been extended and adapted both by legislative and

judicial developments: see for example the observations of Walsh J. in Transport Salaried Staff’s Association v. CIE [1965] I.R. 180 at

p. 202. While, therefore the Constitution by Article 34.3.2° does explicitly restrict to the Superior Courts the jurisdiction in

constitutional challenges to validity of legislation, it says nothing about the proceedings in which such challenges may be mounted or

about the rules for such proceedings, whether general or specific, such as the principles relating to the establishment of locus standi,

mootness, the rule of double construction, or the approach that requires the court to resolve a constitutional issue last. All of these

matters, and others, are features of the administration of justice, and developments which have been made incrementally, sometimes

with the benefits of considering developments in other jurisdictions. Human experience throws up an endless variety of situations, and

not all of them can be expected to arise for the first time in this jurisdiction. It is, however, not unknown for the discretionary

remedies in equity to be tailored to the specific circumstances to ensure that justice is done in the particular case, sometimes by

reference to the rights and interests of parties not before the court. This, in principle, can apply with greater effect, when in inter

partes litigation, an order is sought with the effect erga omnes, rendering invalid a piece of legislation of general application.

Sometimes a breach of a private law right is established but an injunction is withheld. In other cases, the making of a final order may

be adjourned for a period to allow arrangements to be made to avoid an unduly harsh outcome. I see no reason why in an appropriate

case, where justice requires a measured response, and a step such as adjournment of a final order, which is available to the court,

that such a step could be regarded as impermissible in constitutional matters alone. An analogy can perhaps be drawn with the

treatment of illness and disease. There are many conditions which are terminal, or which can only be dealt with by radical amputation,

but that is no reason to refuse to consider surgery, or less invasive therapies if appropriate. If the legal problem is complex, there is

no reason why the remedy should not be nuanced. If that is the position in private law, it cannot be excluded in public law, where the

issues may be more difficult and the consequences more far-reaching.

21 The objection that flexibility of a remedy in constitutional challenges offends against principle therefore, is not in my view

persuasive. Experience of litigation and disputes more generally, suggests that some cases may not provide the clear cut innocent

victim/malicious wrongdoer narrative, more regularly encountered in popular entertainment. More realistically, the system of

administration of justice goes to some length to seek to remove unnecessary issues and isolate clear cut issues to which definitive

answers can be given. Justice permits, and indeed may require, that a very clear cut decision be rendered in such cases. But it would

be foolish not to recognise that there are many situations where the issues require complex and measured solutions. The reason

natural justice requires adherence to the rule of audi alteram partem is not procedural formalism: it is because often the other side

will have something to be said in their favour, which must be heard, considered, and factored into the decision. Justice is traditionally

represented as bearing scales, suggesting that justice is both balanced and measured. I recognise that the force of the argument

that the suspension of a declaration of invalidity has the effect of permitting a situation of unconstitutionality, identified and

determined by the only body empowered to do so, to continue and have effect. But the fact that litigation determined inter partes

has effect erga omnes may mean that the court should take all such matters into account. The system established by the

Constitution, as judicially interpreted, is a balanced one, which recognises other values as well as the identification of legislation in

some respect repugnant to, or inconsistent with, the Constitution. Thus for example, a provision may be in theory unconstitutional,

but if not challenged in a properly constituted proceedings by a party entitled to do so, and before a court vested with the

jurisdiction in that regard, a court, although established under the Constitution and bound to uphold it, is not empowered to do

anything about it no matter how patent the unconstitutionality. The rules of locus standi, and the requirement to reach constitutional

issues last, and to a lesser extent, the double construction rule, all necessarily involve the judgment that the striking down of an

unconstitutional provision must be balanced against, and sometimes outweighed by, other countervailing factors. The obligation to

render invalid any offending provision of legislation, which is determined to be repugnant to or inconsistent with the Constitution is, a

function of the highest importance. As emphasised by Clarke C.J. in the ruling in N.H.V., the normal remedy when unconstitutionality is

identified would be the consequential declaration of invalidity of the provision with immediate effect, and that is the position from

which the court should be slow to depart, and against which any other remedy should be measured and justified. But I see no

justification for an a priori rule that this is the only remedy available. In this regard, I agree with the observations of MacMenamin J.

The precise circumstances in which it is appropriate to make any other order, and in particular to suspend a declaration of invalidity,

is however, a matter to be considered carefully, cautiously, and on a case by case basis, and will be exceptional. I would, however,

reject the argument that it is in principle impermissible for a court to make any other order other than one of an immediate declaration

of invalidity.

22 However, it becomes apparent that this discussion is somewhat beside the point in this case, although, as it transpires, it is a

useful entry point for analysis of the issue which is to be determined here. The problem in this case, if there is one, will not be

addressed by deferring the determination of invalidity: no legislation taking effect prospectively can now address the fact that while

imprisoned the appellant was disqualified from receiving benefit in circumstances which offended the Constitution, because of the

effective limitation of the provision to convicted persons, and where the application of that disqualification was not a component of a

sentence imposed by the court, with jurisdiction to try and sentence him. The problem, latent in this case, is, however, the closely

related question of the impact of any declaration of invalidity (whenever that might be made) on the disqualification from benefit of

the appellant pursuant to the invalidated section while it was in force.

The provision to be declared invalid

23 Before addressing that question, it is necessary to address an argument raised as to the nature of the declaration to be made, and

in particular whether the declaration of invalidity should be made in relation to s. 249(1)(b) or that portion thereof relating to

imprisonment, or alternatively, a declaration of invalidity of those parts of the 2007 Regulations which had the effect of reducing the

scope of the disqualification established by s. 249 to convicted persons, or those broadly subject to detention as a result of a verdict

in respect of a criminal trial. If I was persuaded that the court had no option but make a declaration of invalidity operating in an

indiscriminate fashion as contended for, so that the fairness of the constitutional process was to be found only in the fact that a

remedy operated randomly and indiscriminately, I would have given serious consideration to this question, or at least to the question

of whether, if the appellant had been unwilling to challenge the primary source of unconstitutionality, a court would be justified in

refusing a declaration of invalidity of provisions, the constitutional frailty of which flowed only from provisions which the appellant had

not challenged. However, taking the view I do of the flexibility of the approach which is available to the court, I consider it is

appropriate in this case to make a declaration of invalidity of that portion of s. 249(1)(b) which disqualifies the appellant and persons

in the same position from benefits while serving a lawful term of imprisonment in respect of a sentence imposed upon them, having

regard to Articles 34 and 38.1 of the Constitution. This is the provision challenged by the appellant in these proceedings. Having

succeeded in his argument, the most appropriate remedy for the appellant should be the declaration of invalidity of the particular

subsection which applies to him.

Damages

24 The next issue, however, is what follows from such a declaration. The appellant seemed to assume that it necessarily follows that

he is entitled to damages as an inevitable consequence of the making of a declaration of invalidity. But that raises a very important

issue. Damages are normally available for a civil wrong. Certainly the violation, by agents of the State, or persons for whom the State

is responsible, of the personal rights of the citizens, such as bodily integrity, privacy or otherwise, will give rise to and has given rise

to actions for damages. But here, it is not asserted that there is a fundamental right involved. There is no personal right to the

passage by the Oireachtas of legislation which may later be found unconstitutional by a future court. It may be said to be the

entitlement of every citizen (having standing to do so) to challenge legislation, but that does not mean that the passage of such

legislation, without more, gives rise to an actionable claim for damages.

25 As a matter of historical fact, the declaration of invalidity has not normally led, without more, to an award of damages. To take

only a few examples, the well-known case of Blake v. Attorney General [1982] I.R. 117, discussed in the judgment of MacMenamin J.,

resulted in the striking down of parts II and IV of the Rent Restrictions Act 1960. However, owners of properties affected by the

legislation, and whose rights it breached, did not thereby, or at all, obtain an entitlement to award of damages for the loss, which ex

hypothesi they had suffered. Other examples are the landmark decisions in McGee v. Attorney General [1974] I.R. 284 and De Burca

v. Attorney General [1976] I.R. 38. Mrs McGee and many other citizens were adversely affected by the prohibition on importation of

contraceptives and many others were convicted by juries composed in accordance with the Juries Act 1927, but no one obtained

damages. This issue was helpfully discussed in the judgment of Budd J. in An Blascaod Mór Teo. v. Commissioner of Public Works (No.

4) [2000] 3 I.R. 565. There, the High Court held that the provisions of An Blascaod Mór National Historic Park Act 1989 were

unconstitutional, and this conclusion was upheld by the Supreme Court. Thereafter, the plaintiffs claimed consequential damages.

Budd J. held that the passage of legislation subsequently found invalid, without more, did not amount to the tort of misfeasance of

public office, and although the Oireachtas could not be given absolute immunity from claim, there were valid public policy reasons why

damages did not automatically flow from a finding of invalidity. Thus, at p. 581 of the report, he said:-

“There is therefore little justification for a regime of strict liability for infringement of a constitutional right where such

rights are competing and in conflict. In such circumstances "ubi ius, ibi remedium" is too simple a formula and strict liability

would in many cases be too low and easy a threshold to reach.”

At pp. 583 to 584 he considered the closely related question of the liability of a Minister for an invalid administrative action, and

quoted the judgment of Henchy J. in Pine Valley Developments v. Minister for the Environment [1987] I.R. 23:-

“I consider that the exemption of the State from liability in damages for the Minister's invalid planning permission is not

alone not an unconstitutionality but is in harmony with the due operation of the organs of government established under

the Constitution”.

Budd J. concluded:-

“If the Minister enjoys a quasi-immunity in respect of administrative acts, it seems that only in exceptional circumstances

could the State be made liable for damages in respect of invalid legislation where the legislature is involved in the

balancing of the protection of the right of private property against other obligations arising from the common good.”

26 The discussion was comprehensive, and I cannot therefore treat that case as decided solely on the grounds that damages were

not shown to flow directly from the legislation. In any event the matter is one for this court, and I find the reasoning helpful. The

position tentatively arrived at in that case was observed to be consistent with the approach of the law of the European Union.

Interestingly, although not cited in that case, the same conclusion was arrived at in Canada. Thus, in Schachter v. Canada [1992] 2

S.C.R 679 at p.720, Lamer C.J. concluded that:-

“An individual remedy under s.24(1) of the Charter [which established and permitted a personal claim for damages] will

rarely be available in conjunction with action under s.52 of the Constitution Act, 1982. Ordinarily, where a provision is

declared unconstitutional and immediately struck down pursuant to s.52, that will be the end of the matter.”

As the formulation in both the Irish and Canadian cases suggest, this is a general rule, but it is not necessary here to consider the

circumstances in which a court may depart from it. I am satisfied that the general principle that the mere finding of

unconstitutionality does not give rise per se to a claim for damages, is applicable here, and accordingly the appellant’s claim for

damages, made on that basis, must fail. It should be noted that the High Court did award nominal damages arising from a finding of

unconstitutionality in Redmond v. Minister for Environment (No.2) [2006] 3 I.R. 1, but that decision was not considered by the

Supreme Court, which dismissed an appeal in limine, and I would not regard it as setting a standard of an automatic entitlement to

damages. Indeed, as set out above, I consider the opposite to be the rule, albeit subject to possible exceptions. Since the principle is

a general one, it follows that there may be circumstances in which a court can consider that justice requires that the interests

affected can only be properly weighed, and any wrong remedied, by the award of damages. I do not think it useful to speculate on

the circumstances in which an award of damages might be made, since that issue was not canvassed in argument, and the facts

giving rise to such a situation may be diverse. It is sufficient to record that the argument advanced was that damages arose

automatically on a finding of invalidity, a contention which I consider erroneous. My conclusion that damages should not be awarded

might be enough to resolve this case, since the appellant’s claim was for damages consequent upon the alleged invalidity, without

more. In this respect, I agree with the judgment of my colleague MacMenamin J. However, in the course of argument, other possible

bases for a claim were canvassed, and in the interests of completeness it is necessary to address them.

Claim to the statutory benefit

27 A related contention, canvassed in argument, is that while the declaration of invalidity to be made by this court does not itself

give rise to a claim for damages, nevertheless the consequence of the declaration is to remove what was the only legislative

prohibition on receipt of the benefit. The argument is that the structure of the 2005 Act is to confer a general benefit on members of

the population who can satisfy certain criteria of age, employment, marital status or illness. The appellant in this case comes within

the relevant group but was disqualified by the provisions of s. 249(1)(b), now however declared invalid and of no effect. Therefore, it

is suggested that the appellant should be entitled to recover the sum, not as damages but rather as benefit to which he was entitled,

and which was wrongly withheld from him, the only justification for such disqualification now having been removed. In terms of

pleadings, this might involve the appellant claiming an entitlement to a benefit, the Minister defending that refusal of benefit by

reference to s. 249(1)(b), and the appellant in reply asserting the invalidity of the provision. The outcome of the case, on this

argument, would be that the appellant would become entitled to recover the benefits which had not been paid.

28 It is not, I think, unduly punctilious to point out that the case was not pleaded, or put, in this way. Instead, the appellant simply

claimed consequential damages, to which, for the reasons and on the authority set out above, I consider they have no entitlement.

In the circumstances of this case, and the blunt and absolutist basis of the appellant’s claim, it would not perhaps be unjust to

dismiss the appellant’s claim for damages as pleaded, and leave any possible claim to entitlement to benefit to be explored, if at all, in

further proceedings by the appellant, and any other person. However, the matter has been addressed in argument, and given the

rather torturous course this litigation has taken, it is desirable the matter be resolved, if possible. The argument is closely related to

the issues which have been debated at length. In any event the question of an entitlement to a person, disqualified from benefit

pursuant to s.249(1)(b), is a matter which would inevitably come before this court, and is, moreover, not dependent on evidence of

further argument. There will be a proliferation of claims, and the likelihood of confusion if there is a protracted period before the issue

would be definitively resolved. Considerations of efficiency therefore suggest it should be addressed now.

29 I observe immediately that this type of claim is dependent on the quirk of the drafting technique adopted where legislation is found

to be under-inclusive in that the capacity to obtain the benefit may depend on how the legislature, and more realistically the drafter,

approached the legislation. Legislation may be framed as a general entitlement subject to a limitation subsequently impugned

(everyone except X), but may just as readily have been drafted by conferring the benefit positively on only those intended to benefit

(only those who are not X). In mathematical terms, 6 minus three produces the same result as 2 plus 1, but on this approach to

invalidity, one outcome could be 6 (the limitation being struck down) or 0 if the entire provision falls, although the calculations

produce the same result and the added factor (invalidity for excluding X) is common. There are those who say that such randomness

of outcome is simply a by-product of the nature of the judicial function, and the limitations on it, but it is at a minimum a noteworthy

feature of this area of law and perhaps a reason to be flexible in its application.

30 The question of the theoretical justification of suspending any declaration of invalidity is a useful introduction to this issue because

the argument made against the suspended declaration is very similar to that advanced in favour of the determination of entitlement

to benefit. It is argued that the declaration of invalidity means invalidity ab initio, that is, in this case, from the date of enactment, or

in the case of pre –1937 legislation, from the period of coming into force of the Constitution. As a matter of law, therefore, it is

argued that the particular provision, however well–established and acted upon, and irrespective of the nature of the invalidity,

whether serious or more minor, must be treated as if it never existed, and as if on the making of the declaration of invalidity, the

provisions somehow magically disappeared from the statute book. This, indeed, was the view articulated in the 19th century in the US

by Field J. In Norton v. Shelby County (1886) 118 U.S. 425 at p. 426, he said:-

“An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection, it creates no

office; it is, in legal contemplation, as inoperative as though it had never been passed.”

This approach has the undoubted virtue of clarity and indeed simplicity. But as Einstein is said to have observed, everything should be

made as simple as possible, but not simpler. This discussion can however be short–circuited somewhat, since the issue has been

addressed in a series of important decisions of the Irish courts, which are not sought to be challenged in this case, and which

accordingly set much of the background for the consideration of this case. In essence, it is clear that a declaration of invalidity

operates as a matter of law to establish the nullity of the provision from the date of enactment or the passage of the Constitution, as

appropriate. That however does not establish per se the invalidity of actions taken on foot of such legislation at any time before its

invalidity was determined by the court. As Chief Justice Charles Evan Hughes said in Chicot County Drainage District v. Baxter State

Bank (1940) 308 U.S. 371, at p. 374:-

“The courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional,

was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the

challenged decree. . . It is quite clear, however, that such broad statements as to the effect of a determination of

unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is

an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a

new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various

aspects, with respect to particular relations, individual and corporate, and particular conduct, private and official.

Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted

upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand

examination. These questions are among the most difficult of those which have engaged the attention of courts, state

and federal, and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute

retroactive invalidity cannot be justified.”

31 In a number of important cases, this court has held that while the general rule is that a declaration of invalidity will also render null

and void actions taken on foot of the impugned provision, the declaration of invalidity did not always necessarily nullify transactions

or steps taken or even convictions arrived at on the basis of, or pursuant to procedures established, by legislation subsequently

declared invalid.

32 In theory, the issue could have arisen in those cases in which important provisions of electoral law were found to be repugnant to,

or inconsistent with the Constitution. On the facts, the issue did not precisely arise in O’Donovan v. The Attorney General [1961] I.R.

114, and the issue does not appear to have been recognised in that case. It was adverted to in the case of McMahon v. The

Attorney General [1972] I.R. 69, where it was determined that the system of voting established by legislation enacted in 1923 was

inconsistent with the constitutional guarantee of secrecy of the ballot. One issue raised in the dissenting judgment was the fact that

such a finding could raise an issue as to the validity of all elections and by–elections since 1923, and it might be said a further

question arose as to the capacity of the Oireachtas, itself elected under the now invalid procedure, to enact any curing legislation (or

indeed any other legislation). The issue was touched on in the majority judgment, where it was noted that the plaintiff had not

argued that there was any consequential invalidity. However, this might be thought to be a less than comprehensive answer to a

difficult problem which had arisen in other jurisdictions. Notably, in Germany, the Bundesverfassungsgericht held, in 1963, in a case

that has close points of comparison to the issue in the almost contemporaneous decision in O’Donovan, that the 1949 Electoral Law

“had become” unconstitutional because it no longer corresponded to up to date demographic figures. However, the

Bundesverfassungsgericht refused to annul the 1961 election on the ground, considering that the unconstitutionality “was not so

evident” as to invalidate the previous apportionment: see the Second Apportionment Case (1963) 16 BVerfGE 130. Later, the High

Court of Australia had to confront the same problem in Western Australia v. Commonwealth (1975) 134 C.L.R. 201, where the legality

of the dissolution of the Houses of Parliament was challenged and established, but the court concluded that, “what had happened

now could not be undone”. Previously, in Simpson v. Attorney General [1955] N.Z.L.R. 271, the New Zealand Court of Appeal had

simply refused to set aside a parliamentary dissolution on grounds of “manifest public inconvenience”.

33 The issue arose much more clearly in the landmark case of De Burca v. Attorney General [1976] I.R. 38. It was decided in that

case that the provisions of the Juries Act 1927 were unconstitutional. It is important to recall that while the case is most often

associated with the removal of the gender discrimination contained in that Act, the decision also invalidated the property qualification

established by the Juries Act. The extent of the unconstitutionality identified was extensive, and it followed, therefore, that the

incompatibility of any juries selected under that provision with what had been held to be the requirements of a trial in due course of

law, was neither insignificant nor trivial. Did this, however, mean that any conviction recorded by juries empanelled since 1927 must

be treated as invalid, and were relevant persons released from custody, and those who had served sentences compensated? The

court in De Burca had to address this question, not because it was a consequential claim of the plaintiffs (who had yet to be tried)

but because it was invoked by the defendant as a ground for resisting the challenge. The court gave different reasons for rejecting

the argument. O’Higgins C.J. asserted bluntly that such a prospect would not be permitted, consistent with the “overriding

requirements of an ordered society”. Walsh J. offered the ingenious resolution that since no person who was disqualified from

membership of a jury had sat on any jury, there was no constitutional infirmity in any subsequent conviction, while at the same time

asserting that if the argument had not been rather fortuitously available, he would have preferred to follow the argument to its logical

conclusion and invalidate all prior convictions, if that followed from the court’s decision.

34 In State (Byrne) v. Frawley [1978] I.R. 326, one such conviction was challenged. The court rejected the challenge, but divided on

the reasons. Henchy J. addressed the argument that no member of the jury in Byrne’s case had been disqualified from participation

and that therefore his conviction was not a consequential nullity. He considered that that argument was not persuasive, since the

constitutional flaw identified in De Burca v. Attorney General [1976] I.R. 38 was not the presence of any such person on a jury but

rather the fact that the jury would be drawn from a pool which was insufficiently representative of the population at large. Taking this

approach, Henchy J. had then to address, in a very direct way, the claim that a consequence of the finding of invalidity in De Burca’s

case meant that the conviction of Byrne by a jury empanelled under the 1927 Act must be treated as a nullity. Henchy J. pointed out

that the trial had been underway at the precise time the De Burca case had been decided, and was indeed adjourned to consider the

position. The applicant had elected to proceed with the trial. This conduct he considered precluded him from now asserting any

invalidity. Byrne’s case presented particularly strong facts, but if the principle was limited to such facts, it would be of very little

application. However, the court went on to observe that the same result would follow in any case, even if the trial and conviction

occurred before the decision in De Burca was delivered. The case therefore established an important and more broad–ranging,

principle. Although a person convicted must be able to challenge a conviction on the grounds of the unconstitutionality of the

legislation creating the offence, or controlling the mode of trial, and if successful the conviction would be quashed. It did not follow

that such a conclusion must be reached in all cases for all those affected, even those whose factual circumstances may be identical

to those of the successful claimant. This was a far-reaching decision, the implications of which were not necessarily recognised at

the time.

35 Although the decision that any person convicted by a jury empanelled under the 1927 Act could not challenge their conviction

might now sit comfortably with the well-known decision of this court in A. v. Governor of Arbour Hill Prison [2006] IESC 45, [2006] 4

I.R. 88, that final convictions cannot be challenged on the basis of a subsequent determination of invalidity of a legislative provision,

it is important to recognise it was not decided on that basis. Instead, it was treated as a case where the plaintiff was precluded from

asserting, and could not benefit from, the invalidity even when such invalidity had already been established by the same court. It is

notable that the proceedings in State (Byrne) v. Frawley [1978] I.R. 326 were State-side proceedings seeking an order of certiorari

quashing the conviction, but that the conviction itself was separately under appeal. The decision of the court suggests emphatically,

however, that if the point had been raised on the appeal, it would not have availed the applicant there either, even though the

proceedings had not been concluded, and the conviction could not be treated as final, and thus falling within the principle established

by A. v. Governor of Arbour Hill Prison. The decision of the Supreme Court in State (Byrne) v. Frawley is therefore clear authority that

there is no absolute rule that once the constitutional invalidity of legislation is established, that all steps taken under it must be

treated as a nullity.

36 The decision in A. v. Governor of Arbour Hill Prison [2006] IESC 45, [2006] 4 I.R. 88, discussed in more detail in the judgment of

MacMenamin J., is a more elaborate treatment of the issue generally. That case established that even in the area of criminal law, the

finding that a criminal offence, in that case created by the Criminal Law (Amendment) Act 1935, was inconsistent with the

Constitution, did not mean that a person imprisoned on the basis of the conviction for that offence, could assert the nullity of the

conviction, and claim release.

37 These cases are very important, since they establish beyond question that there is no automatic rule of consequential invalidity,

and that certain matters, such as the finality of a conviction, or the failure to take a challenge, may preclude reliance on any

invalidity subsequently established. However, both these cases occurred in the field of criminal law and involved attempts by a third

party to claim the benefits of an invalidity established in other proceedings. Here, it is the appellant who has succeeded, and who

claims for what he contends is consequential relief in the self- same proceedings, which are civil in nature. This, therefore raises

slightly different issues.

38 The most relevant authority in this regard is Murphy v. Attorney General [1982] I.R. 241. It is well known that the decision of the

Supreme Court in that case, upholding the decision of the High Court, was to the effect that the provisions of the Income Tax Act

1967, which required joint assessment of married couples, were repugnant to the Constitution. Subsequent to the decision, there

was, unusually, a further comprehensive hearing on the consequences of that determination both for the plaintiffs, and for all other

married couples in the State. The potential financial consequences for the State were obvious, and the uncertainty over the State’s

budgetary position justified the step of hearing argument on the question of the entitlement of the plaintiffs in that case, and more

importantly all other married couples, to recover any excess tax paid under the provisions found invalid.

39 The State sought to argue that the court could adopt an approach adopted in some common law countries known as prospective

overruling, where a court, in overruling an earlier precedent and thus changing the law governing a particular area, could determine

the date from which the new law established by the decision could take effect. This is closely related to an approach adopted in

some jurisdictions in public law matters of providing that any invalidity of legislation will only take effect as ex nunc (from the date of

decision) rather than ex tunc, (from the date of the enactment or other provision found invalid). In simple terms, it would involve

determination that any invalidity would be prospective only. O’Higgins C.J. was prepared to adopt this course. However, the majority

of the court took a different view. In an extensive judgment, Henchy J. analysed the text of the Constitution in both official

languages. First, he pointed out that the Irish Constitution contained an express jurisdiction under Article 34 to declare the invalidity

of legislation. It was not something deduced from the Constitution or implied, as in other jurisdictions. He approached the issue firstly

by considering the position in relation to pre-1937 legislation. Article 50 of the Constitution provided for the continuation and

enforcement of the laws of Saorstát Éireann, “to the extent which they are not inconsistent with” the Constitution. It followed, he

considered, that where inconsistency with the Constitution was established, the impugned legislation must be declared to have

ceased to have effect on the coming into force of the Constitution. In a vivid phrase, he described such a declaration as a “judicial

death certificate with a date of death stated as the date when the Constitution came into operation”.

40 The next step in the reasoning was to consider the provisions of the Constitution dealing with post-1937 legislation, where such

legislation was found to be repugnant to the Constitution. Henchy J. considered that the Constitution adopted the normal approach to

an ultra vires Act by branding the enactment as invalid. Both in the consideration of authority and perhaps more importantly,

consideration of the true nature of the constitutional limitation on the legislative power, an Act found repugnant to the Constitution

was to be held to “be” (and not “become”) invalid, ultra vires and therefore “void ab initio”. This conclusion was, he considered,

reinforced by the Irish text, which referred to invalidity in Article 15.4 by using the term “gan bhail” which was to be rendered in

English as “worthless, void or ineffective”. Consequently, a statutory provision, once declared invalid, had invalidity attached from the

date of enactment if post-1937, and from the date of the Constitution coming into force, if the statute predated it. He considered

that it was not possible or permissible to seek to assert that such invalidity only attached as and from a particular date such as the

date of delivery of judgment in a case. Furthermore, normally such a void Act would provide no legal justification for any acts done or

left undone, or for transactions undertaken in pursuance of, and the person damnified by the operation of the invalid provision would

normally be accorded by the courts all permitted and necessary redress.

41 This was a very clear rejection of the argument that the Irish Constitution permitted the court to make ex nunc declarations of

invalidity in the same fashion as was permissible in the CJEU (see the Opinion of Advocate General Stix-Hackl of 17 March 2005, Banco

Popolare di Cremona, C-475/03, EU:C:2005:183, paras. 135 to 150), and the European Court of Human Rights (see Marckx v. Belgium

(App. No. 6833/74) (1979-80) 2 E.H.R.R. 330) and indeed other European jurisdictions (see, for example, Verstraelen, ‘The temporal

limitation of judicial decisions: the need for flexibility versus the quest for uniformity’ (2013) 14 German Law Journal 1687). That

conclusion was not challenged in this case, and is well established. For that reason, I do not consider that the important

considerations raised by MacMenamin J. can arise for determination in this case, but they will no doubt stimulate more thoughtful

consideration of this difficult area. However, of greater importance for present purposes is that that clear conclusion did not lead to

the plaintiffs, and any other taxpayer, becoming entitled to the repayment of monies which they had been required by law to pay

under a provision now determined to be invalid.

42 The invalidity of the legislative provision did not automatically lead to the invalidity of all acts and steps taken on foot of it. “There

may be transcendent considerations which make such a course undesirable impractical or impossible” and it might be added, unjust.

Taking examples from the field of civil law where cases are overruled, but actions taken on foot of an earlier decision are not set

aside, and from the areas of estoppel and acquiescence, Henchy J. pointed out, that the law did not always require the setting aside

of steps taken on the basis of a provision subsequently held to be invalid or otherwise ineffective:-

“For a variety of reasons, the law recognizes that in certain circumstances, no matter how unfounded in law certain

conduct may have been, no matter how unwarranted its operation in a particular case, what has happened has happened

and cannot, or should not, be undone. The irreversible progressions and bye-products of time, the compulsion of public

order and of the common good, the aversion of the law from giving a hearing to those who have slept on their rights, the

quality of legality – even irreversibility – that tends to attach to what has become inveterate or has been widely

accepted or acted upon, the recognition that even in the short term the accomplished fact may sometimes acquire an

inviolable sacredness, these and other factors may convert what has been done under an unconstitutional, or otherwise

void, law into an acceptable part of the corpus juris. This trend represents an inexorable process that is not peculiar to

the law, for in a wide variety of other contexts it is either foolish or impossible to attempt to turn back the hands of the

clock.”

43 Murphy v. The Attorney General [1982] I.R. 241 was a case which addressed the tax collection function which was fundamental to

the running of the State. The State’s accounts are managed on an annual basis. Absent a challenge, the State was entitled to

proceed on the basis that it could spend the money it collected. Even though the plaintiffs complained about the collection of taxes

from them from the year 1976 onwards, it was held that they were only entitled to the recovery of taxes from the year 1978 to 1979,

being the first year in which they had effectively objected to the flow of those taxes into the defendants’ central funds by the

issuance of a plenary summons:-

“Up to that year the State was entitled, in the absence of any claim of unconstitutionality, to act on the assumption that

the taxes in question were validly imposed, they were properly transmissible into the central fund, and that from there

they were liable to be expended, according to the will of Parliament, for the multiplicity of purposes for which drawings are

made on the central fund of the State. Equally, every taxpayer whose income tax was deducted from his earnings

throughout a particular tax year, no matter how grudgingly or unwillingly he allowed the deductions to be made from his

weekly or monthly income, could not avoid having imputed to him the knowledge that the tax he was paying was liable to

be immediately spent by the State.”

This meant that, in effect, the plaintiffs were entitled to a modest recoupment covering two years excess tax. But more importantly

for present purposes, no other person was entitled to recover, or at least any person who had not issued proceedings:-

“In the absence of special circumstances (which have not been shown to exist in this case), payment of PAYE taxes

during the whole of a tax year, without instituting proceedings to have the taxes invalidated on the ground of

unconstitutionality, should be held to defeat a claim made later to recover the taxes paid during that year.”

44 It is important to recognise the breadth of this ruling. The practical result was that the invalidity identified as operating ex tunc

took effect, so far as almost everyone was concerned, ex nunc. Although examples were drawn from the areas of civil law such as

estoppel or acquiescence and laches, I agree with MacMenamin J. that the case cannot be seen as an application of purely private

law principles. Instead I consider that the examples were used to support a broad principle applicable in the area of public law, and in

particular of constitutional law. The doctrines of laches, acquiescence and estoppel, as encountered in private law, normally require

knowledge of the potential claim, or positive conduct on the part of the party which makes it unfair to rely on what has been

determined to be their legal rights, or both. In the case of a person paying tax, it could not be said that they had, or should have

had, knowledge of an invalidity which had only later been established by proceedings. Furthermore, the limiting of the plaintiffs’ claim

to the period from the commencement of the proceedings is not determined by principle so much as the identification of a convenient

point which appears to best balance the rights of the plaintiffs and in this case the State. Normally a person issuing proceedings is

entitled to recover damages or receive an entitlement established in those proceedings, for the period prior to commencement of the

process, subject only to any relevant provisions of the statute of limitations. The ‘transcendent considerations’ identified in Murphy v.

Attorney General [1982] I.R. 241, therefore, led to a broad conclusion that justice is served by declaring the invalidity of the

provision, and both limiting the consequential recovery to the plaintiff, and, following the pattern of the decision in State (Byrne) v.

Frawley [1978] I.R. 326, indicating that any claim seeking to piggyback upon the decision would be unlikely to succeed. I would add

that I do not read these judgments as merely an invocation of some broad public policy considerations to avoid the inconvenience

which otherwise might follow from invalidation. Instead, in my view these decisions reflect an important principle derived from the

nature of public law adjudication through the medium of private litigation.

45 The further hearing and ruling in that case was prompted by the very substantial liability, coupled with the enormous administrative

task, that would have ensued had it been held that all tax overpaid by all married couples in the State should be returned, subject

only to any possible limitation under the statute of limitations, if applicable. But the decision should not be represented, or indeed

misrepresented, as establishing a somewhat dubious principle that size is determinative and that in substantial cases the law will not

insist on what is required in smaller claims. Instead, cases with far reaching consequences like Murphy v. Attorney General [1982] I.R.

241 can illustrate a difficulty which is more easily detected than in more modest claims: that is, that justice, both inter partes, and

more importantly to all those who are affected by and bound by the outcome of the litigation, may require a more nuanced remedy. A

blanket invalidity of all things done on foot of legislation, may be recognised as conferring an unjustified windfall on some parties, and

imposing a corresponding unfair burden on others.

46 There are indeed other circumstances where blanket consequential invalidity might offend justice. Since the Constitution has

endured for eighty years, and a broadly similar constitutional order has been in place for nearly one hundred, it has been recognised,

that there can be instances of creeping unconstitutionality, that is where a provision unobjectionable when enacted becomes

unconstitutional because of a substantial change in the underlying factual situation: see for example Brennan v. Attorney General

[1983] I.L.R.M. 449 (H.C.), [1984] I.L.R.M. 355 (S.C.). A different situation, traces of which can be seen in this case, occurs when an

Act is within constitutional limitations, but when combined with a later piece of legislation, itself also permissible, gives rise to a

situation which can be determined to be inconsistent with the requirements of the Constitution. A further instance is where it is

recognised that the understanding of constitutionally mandated requirements of fairness, equality, justice and other broad-textured

constitutional guarantees may develop over time. For example and most clearly, it was recognised in State (Healy) v. Donoghue

[1976] I.R. 325, and more recently in Carmody v. Minister for Justice, Equality and Law Reform [2009] IESC 71, [2010] 1 IR 635 that

what was required in the nature of legal assistance to comply with the guarantee of a trial in due course of law under Article 38 has

continually developed over time, and the nature of representation permissible in the early days of the constitutional order would not

be considered sufficient in more modern times. It is not necessary to consider in any detail the idea of the Constitution as a living

tree, to borrow the metaphor of Lord Sankey in Edwards v. Attorney General of Canada [1930] A.C. 124, with the significant

qualification suggested by Lord Bingham in Brown v. Stott [2003] 1 A.C. 681 at p. 703. It is enough, I think, for these purposes, to

repeat the observations of Walsh J. in McGee v. Attorney General [1974] I.R. 284 that the prevailing ideas of the constitutional

virtues of prudence, justice and charity, by reference to which the Constitution should be interpreted, are conditioned by the passage

of time, and that no interpretation of the Constitution is intended to be final for all time. The application of that observation in any

given case recognises that what was done at certain times or circumstances was once consistent with the Constitution, but is no

longer. It would border on the perverse to insist nevertheless that the invalidity of all actions done on foot of the impugned law

should attach from the moment of enactment of that legislation, or the coming into force of the Constitution. A different situation

may arise where a legislative provision is declared unconstitutional by the High Court in exercise of its jurisdiction under Article 34.

The law is stated, and takes effect as of the date of that decision. It is the only guide to conduct and every person must act in

accordance with it. What then is the position if it is overturned on appeal or indeed that appeal in turn reversed, or as discussed in

Murphy v. Attorney General [1982] I.R. 241, binding authority is later overruled? It seems difficult to treat as a nullity, and perhaps a

civil wrong, something done that was compelled by, or at least in accordance with, what was then the law. As Dr. David Kenny points

out in ‘Grounding constitutional remedies in reality: the case for as-applied constitutional challenges in Ireland’ (2014) 37(1) D.U.L.J.

53, there is a curious lack of symmetry between the development of rules limiting the nature and sweep of constitutional challenges,

and the relative absence of any rules governing the consequences of any invalidity once identified. Yet the terms of Article 15.4.2°

seem to permit, if not indeed require, that a remedy is measured precisely to fit the repugnancy identified, and no more. In the allied

field of administrative law, the same idea is found in addressing questions of remedy. In the judgment of Clarke J. (as he then was) in

Tristor v. Minister for Environment [2010] IEHC 454 (Unreported, High Court, Clarke J., 10 December 2010), an overriding principle

was identified that any remedy in the field of civil litigation could and should attempt in as clinical a way as possible, to undo the

consequences of any wrongful or invalid act, but not more. Repugnancy in the Constitution does not come in one standard size, and

the remedy for it must be capable of recognising that once invalidity of the legislation is established, it remains a separate and

difficult question as to the effect of that invalidity on actions done on faith of that law, or indeed in obedience to it, which, as

O’Flaherty J. suggested in McDonnell v. Ireland [1998] 1 I.R. 134 at p. 143, is itself an obligation of all citizens:-

“Members of society are given no discretion to disobey such law on the ground that it might later transpire that the law is

invalid having regard to the provisions of the Constitution”

In my view, the administration of justice under the Constitution may require a court to recognise the wisdom of Hughes C.J.’s

observation in Chicot County Drainage District v. Baxter State Bank (1940) 308 U.S. 371 that the actual existence of the statute is

an operative fact, which may have consequences which cannot justly be ignored. The past cannot, and I would add should not,

always be erased by a new judicial declaration.

Conclusion

47 Turning to this case in conclusion, it appears to bear some comparison with the facts of Murphy v. Attorney General [1982] I.R.

241: indeed, the payment of social welfare payments pursuant to the 2005 Act is the other side of the State’s accounting process

from the collection of taxes considered in Murphy. In one respect at least this case may present a stronger case for a limitation of

the effect of a declaration of invalidity. The outcome of Murphy was that it was never permissible to insist upon a single assessment

of married couples. Here, however, the decision of this court is not so clear cut. It seems conceivable that it would be entirely

permissible to make at least some adjustment to the entitlement to social welfare of persons detained by the State and whose

expenses are reduced by that fact, although not necessarily extending to the blanket removal effected by s. 249(1)(b). There was no

time in which a person in the position of the appellant could contend that they were entitled to receive payments while imprisoned,

nor was there any legislative judgment that the appellant was so entitled. Indeed, to treat the appellant and anyone in the same

position as fully entitled to payments under the 2005 Act, would be to create a new form of legislative entitlement to benefit, and

moreover one which not only was not approved by the Oireachtas but, moreover, plainly runs counter to the legislative intention. Just

as the court will not sever a provision if the result will be to create legislation inconsistent with the legislative intention as apparent

from the Act, the court should be slow to permit a declaration of invalidity to create by default a form of legislation of general

application, which it is plain the Oireachtas would not have enacted, and which, moreover, would extend the financial burden on the

State and its citizens without sanction of the Dáil. Furthermore, the theory of any claim in litigation is that a person is forced to bring

proceedings because the defendant wrongfully withholds something which the plaintiff claims. The failure of the defendant to provide

the benefit or pay the damages justifies the commencement of proceedings and the awarding of costs against the defendant. But

here, the Minister for Social Welfare could never lawfully have paid the benefit to the appellant. The Minister was bound by the law to

apply s. 249(1)(b) and had no entitlement to treat it as invalid or a nullity: that was solely within the jurisdiction of the Superior

Courts pursuant to Article 34 of the Constitution. All of these factors point, in my view, to an obligation to fashion an appropriate

remedy in this case, rather than adopt the general approach of consequential invalidity.

48 The invalidation of s. 249(1)(b) will require that the Oireachtas now address the question in a comprehensive, and, I hope, humane

way, and produce an outcome consistent with the Constitution. That may yet yield benefits for prisoners and others detained by the

State. In terms, however, of the recovery of benefits unpaid for the period while the 2005 Act, and more specifically s. 249(1) was in

force, I would follow the broad approach in Murphy v. Attorney General [1982] I.R. 241, and would be prepared to hold that this

appellant would be entitled to be paid benefits, but limited to a period approximating to the time taken in these proceedings. That

must be subject of some rough estimation, since it cannot be that dilatory proceedings would increase the amount recovered. In fact

he has already been paid a sum of €7,500 on account of damages by the State authorities. There has been no precise quantification

of the amount of the claim made by the appellant under this heading by reference to the progress of the case. Taking a broad and

admittedly unscientific approach, I would accordingly order that the appellant is entitled to receive €10,000, in this regard, €7,500 of

which has already been paid. The fact that a claim was not intimated earlier means, as in Murphy, that the State was entitled to

maintain its accounts on the assumption that the disqualification contained in s. 249 was valid and effective. No person who had not

issued proceedings would be entitled to claim any entitlement. Where proceedings have been issued and not advanced, it will be

necessary to consider carefully if any entitlement to any benefit is appropriate. However, that issue is not one which arises in this

case.