Not Just a Christmas Election – An Unconstitutional Election?

Dr Conor O’Mahony & Dr Seán Ó Conaill

November has been a busy month for constitutional lawyers in Ireland. On November 11, the University of Limerick hosted the Constitution at 80, an excellent event marking the 80th Anniversary of the enactment of the Irish Constitution and featuring a stellar array of speakers. On November 21, the High Court recognised, for the first time, an unenumerated constitutional right to an environment consistent with human dignity; if followed in later decisions, this could have all sorts of implications. On November 23, the High Court declared unconstitutional a provision of the Offences Against the State (Amendment) Act 1998 relating to withholding information possibly leading to arrest or prosecution of another person. And this week, we are faced with the makings of a constitutional crisis, in the form of the possible collapse of the current Government and an application to the High Court by ex-Labour TD Joe Costello seeking a declaration that any election held on the current constituency arrangements would be unconstitutional.

Mr Costello’s case hinges on Article 16.2.2° of the Constitution, which provides:

“The number of members shall from time to time be fixed by law, but the total number of members of Dáil Éireann shall not be fixed at less than one member for each thirty thousand of the population, or at more than one member for each twenty thousand of the population.”

Under section 2 of the Electoral (Amendment) (Dáil Constituencies) Act 2013, Dáil Éireann currently has 158 TDs. The 2016 Census showed an increase in population of 170,000 since the 2011 Census (to a total of 4,757,976). Accordingly, when divided by 30,000, this gives a figure of 158.6, meaning that the number of TDs needs to be increased by at least one.

Challenges to Dáil constituencies are nothing new; there have been multiple past examples. However, all of those have been based on Article 16.2.3°, which relates to the principle of equality of representation as between constituencies: “The ratio between the number of members to be elected at any time for each constituency and the population of each constituency, as ascertained at the last preceding census, shall, so far as it is practicable, be the same throughout the country.”

The wording of Article 16.2.3° is altogether more elastic than Article 16.2.2°, since the obligation extends only “so far as practicable”. Thus it relates to a broad concept of equal representation, which common sense dictates cannot boil down to a precise mathematical calculation. There have been a number of judgments in which the distribution of constituencies was challenged for failing to adhere to this principle of equality. In general terms, the approach of the courts has been to allow some deviation in the ratio between constituencies; but in two cases (O’Donovan v Attorney General [1961] IR 114 and O’Malley v An Taoiseach [1990] ILRM 461), deviations of 25% from the national average were found to be unconstitutional.

Moreover, the phrase “so far as practicable” also imports an element of common sense regarding the procedures that must be followed to revise constituencies and the time that this takes. In the case of Catherine Murphy and Finian McGrath v Minister for Environment [2007] IEHC 185, it was held that this phrase imports not just an element of flexibility into the ratio itself, but also into the logistics of holding a census, ascertaining the results, and drawing up new constituencies. Clarke J (as he then was) held:

“… it is more than reasonable for the Oireachtas to put in place appropriate measures deigned to maintain and ensure a high level of public confidence in the objectivity of the constituency formulation process. To the extent that it may, therefore, be necessary to go through a certain process to ensure that the constituencies as enacted into law have that high degree of public confidence, then I am satisfied that it is reasonable that the process be engaged in. To that extent I am satisfied that it cannot be said that the ratio of deputies to population is outside constitutional norms “insofar as it is practicable” until such time as a reasonable period has elapsed from the availability of relevant census figures to enable such a public confidence maintenance process to be gone through.”

Accordingly, the application in that case to have the Electoral (Amendment) Act 2005 (which set down the constituencies at that time) declared unconstitutional was rejected. Nevertheless, Clarke J emphasised the “urgent obligation on the Oireachtas to deal with the disproportionality which has now emerged and the additional comments which I have made about the possible need to adopt further measures to ensure that the time lag between the final ascertainment by census of the population and its distribution, and the enactment of new constituencies to reflect that population distribution, is reduced to an absolute minimum.”

Mr Costello’s case differs from the above in a number of regards. First, unlike the broad principle of equality of representation set down in Article 16.2.3°, Article 16.2.2° does boil down to a precise mathematical calculation – and the numbers are on his side of the argument. Second, it does not contain any qualifying phrase like “so far as practicable” or anything similar. On its face, taking Article 16.2.2° in isolation, the 2013 Act would seem to be in clear and obvious breach of the Constitution.

In reality, the courts will be loathe to do anything that would interfere with the essentially political processes at the heart of the dissolution and election of Dáil Éireann. But if a ruling in favour of Mr Costello is to be avoided, where are the possible escape routes?

One option would be to read a practicability qualification into Article 16.2.2°, notwithstanding its absence from the text. This would be analogous to Doherty v Government of Ireland [2010] IEHC 369, in which the High Court read into Article 16.7 (which provides that “elections for membership of Dáil Éireann, including the filling of casual vacancies, shall be regulated in accordance with law”) a requirement that by-elections be held within a reasonable time period. However, it is noteworthy that Article 16.2.2° neglects to use the phrase “so far as practicable” when the very next provision does so. It might well be argued that if it had been intended to have been read this way, it would have been drafted in this way, and the failure to include the phrase indicates a conscious choice.

Even if Article 16.2.2° is to be read as importing a practicability element, the question arises as to why it has not been practicable to revise the constituencies in line with the 2016 Census. In Murphy and McGrath (cited above), the Constituency Commission had not reported on foot of the most recent Census. Given the scale of this task, it was always likely that that case would falter on the “so far as practicable” ground. However, on this occasion, the Constituency Commission has already completed its latest report in June 2017. In that Report, the Commission noted at p.15:

“The population ascertained at the 2016 census was 4,761,865 and, on this basis, having regard to Article 16.2.2˚ of the Constitution total Dáil membership could be fixed by legislation at between 159 and 238. However the 1997 Act, as amended, limits the range to not less than 153 and not more than 160 members which provides for a national average representation of between 31,123 and 29,762. All but the last two points in that range, 159 and 160, would breach the constitutional limit. The Electoral (Amendment) (Dáil Constituencies) Act 2013 currently provides for the total number of members of Dáil Éireann to be 158…

…The Commission recommends that the total number of members of Dáil Éireann should be 160. This gives more scope for recommending changes in constituency configuration in a number of areas and for responding more comprehensively to the terms of reference and to many of the submissions made. This would mean a national average representation of 29,762 of population per member.”

All that remains is for the Report to be laid before the Dáil and its recommendations translated into legislation. A draft Bill is already in preparation to this effect. Thus, all the heavy lifting has already been done.

Nevertheless, should the Government fall, the timeframe is about as tight as it could be. It could literally be the case that the Taoiseach drives past the Four Courts in the middle of the hearing of the case on his way to Áras an Uachtaráin to seek a dissolution of the Dáil.

In this case, what are the possibilities? What if the Dáil is dissolved before the hearing of the case? Does this render the proceedings moot? Theoretically, no; under Article 15.4.2°, “Every law enacted by the Oireachtas which is in any respect repugnant to this Constitution or to any provision thereof, shall, but to the extent only of such repugnancy, be invalid.” This should be the case regardless of political circumstances. If the 2013 Act is struck down, the question then arises – what is the effect of this vis-à-vis the next election?

The 2013 Act repealed and replaced the Electoral (Amendment) Act 2009, which set out a different constituency configuration involving 166 TDs. It is superficially appealing to think that the 2013 Act could be struck down, thus bringing back to life the 2009 Act and thus the previous constituencies. However, while this would bring about compliance with the 1:30,000 minimum requirement of Article 16.2.2°, it would have all sorts of knock-on consequences regarding the equality of representation principle set down in Article 16.2.3°, including (and perhaps not limited to) the wide discrepancies complained of in Murphy and McGrath. While Irish courts can declare legislation unconstitutional, they do not have the power to craft a constitutionally compliant replacement; and if the Dáil is to be dissolved tomorrow, there is no time for the Oireachtas to enact one.

One other possibility would be for the President to hold off granting a dissolution long enough to allow the Oireachtas the time it needs to enact the draft Bill designed to give effect to the Report of the Constituency Commission. But the Court is likely to want to avoid making any decision that might be seen as interfering with the role of the Taoiseach and the President in the dissolution process; and so it may be that the Court focuses on this issue as part of a harmonious interpretation of the Constitution rather than a narrow, literal interpretation of Article 16.2.2°. Just how it would square this approach with what seems like a clear and obvious breach of the Constitution will be interesting to see.

Dr Conor O’Mahony and Dr Seán Ó Conaill both lecture in constitutional law at the School of Law at University College Cork.

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Update on Judicial Appointments Row

Dr Laura Cahillane

Given that today the Dáil will begin its consideration of the now controversial Judicial Appointments Commission Bill and given the amounted of heated discussion on topics such as the lay element of the commission, I will attempt to provide some clarity on the proposals here.

Yesterday, the Association of Judges of Ireland issued a statement in which they criticised the proposal to include a lay majority on the new commission, and to include a lay chair thereby depriving the Chief Justice of this position. The judges are also unhappy that the Presidents of the Circuit and District Courts are to be left out of the new body. The statement alleged that the proposals do not accord with international standards however this is not entirely accurate. Three jurisdictions which are common comparators with Ireland all have reformed their processes for appointing judges in recent times and all have either an increased, equal or a majority of lay representation on their appointments body and all have a lay chair. In Ontario, the Canadian jurisdiction which is often pointed to as a suitable model, out of the 13 members of its Commission, there are 7 lay members including the chair, 3 judges and 3 lawyers. So, a lay majority and a lay chair. In England and Wales there 15 Commissioners: 6 lay including the chair, 6 judicial, 2 lawyers and 1 non-legally qualified judicial member. While the lay representation is smaller here, it is still significant and the chair is a layperson. Scotland provides for equal lay and legal representation with 6 of the 12 members to be lay persons, including the chair. So we can see that a lay chair is a common trend along with a significant lay representation on the body.The Four Courts, Dublin

The judges and the Bar Council have also stated that no explanation for this reform has been provided. So why is increased lay participation on a judicial appointments body considered a good thing? Primarily, it is a device used to increase diversity on the bench and to ensure public confidence in the fairness of the system. Studies internationally have shown that when judges dominate such bodies, the new appointments are almost always self-replicating and it is very difficult for women or minority candidates to be appointed. (In fact the current process in Ireland has been described by an insider as being akin to an exclusive golf club admissions process.) Increasing the lay representation on such bodies generally leads to more openness of views and increased participation in the appointments process.

Baroness Prashar, who is a crossbench member of the House of Lords and was the first chair of the Judicial Appointments Commission in England, has made the following comment on lay membership of the Commission:

“You do not just have a lay member on the panel to increase transparency and to satisfy public perception: they all bring something … Once you were on the Commission, there was very little distinction between the judicial and the lay members. …The Commission was a very robust body, and it worked extremely well. Lay members add real value, and what I valued most was their independence of mind.”

Of course it is essential that the judiciary has a role in the appointments process and that the Chief Justice and Presidents of the Courts are involved in selecting candidates. Judges understand the qualities necessary for particular positions and are able to provide an informed assessment of an individual’s experience, skills and abilities. However, judges will naturally, and through no conscious process, prefer individuals who are similar to themselves and it is argued that having greater lay involvement in the selection process is the most appropriate way of avoiding the problem of self-replication within the judiciary.

Of course, this also raises the question as to why diversity is desirable in the Judiciary. This was something which, in their submission to the Department of Justice on reform of judicial appointments, the judges felt was a non-issue. Also Senator Michael McDowell SC, who has been one of the main critics of the new Bill, recently commented publicly that he doesn’t understand this desire for diversity when we already have ‘excellence’ in the judiciary. However, this misses the point and it is surprising that the argument for diversity even has to be made today. While, there is not sufficient room in this blog to explore the reasons for the need for diversity on the bench, I would point the esteemed Senator to the excellent research which has been carried out by academics such as Erika Rackley, Clare McGlynn and the writings of Lady Hale –all of which LONDON, ENGLAND - OCTOBER 01:  Baroness Hale of Richmond, One of the new 11 Justices of the Supreme Court, and the only woman, arrives in Westminster Abbey after being sworn in on October 1, 2009 in London, England. Lady Hale wears a hat despite other Justices of the Supreme court breaking tradition and choosing not to wear wigs. The Judges, who are to replace the former Law Lords, mark the start of the legal year with a traditional religious service, arriving from the Royal Courts of Justice for a service which is followed by a procession to The Houses of Parliament and then a reception held by the Lord Chancellor. The ceremony in Westminster Abbey has roots in the religious practice of the judges praying for guidance at the start of the legal year. The custom dates back to the Middle Ages when the High Court was held in Westminster Hall.  (Photo by Dan Kitwood/Getty Images) *** Local Caption *** Baroness Haledemonstrate that diversity is not about expecting different decisions than those that are given now but about providing equality of opportunity, democratic legitimacy, which feeds into public confidence that judges are representative of the community as a whole and can understand a vast array of issues, and also about providing diversity of opinion and divergent views.  Furthermore, as these academics have demonstrated, diversity is compatible with the concept of merit.

Another claim which has been repeated on the airwaves in recent days is that the inclusion of lay persons on the body will mean that ‘ordinary Joe Soaps’ will have control over appointing judges. However, this is wild exaggeration and it is up to the Oireachtas to decide on the criteria for the appointment of such lay persons. In other jurisdictions, these are usually people who have held high office, successful business people, people who have had experience in appointing others to high office, academics, and generally people who are very well regarded. It is envisaged in the proposed legislation that the lay persons would have experience of the administration of justice and it is possible to build in further requirements here. Ultimately, the Oireachtas has the power to determine the qualifications necessary for appointment to the board and can easily assuage any fears here.

The other concern of the judges, on the exclusion of the Presidents of the District and Circuit Courts, is perhaps something which should be remedied in the proposed legislation. It is in these courts where the vast majority of appointments are made and so it makes sense that these figures would wish to be involved. Although the Bill does make provision for the Presidents to be consulted. From what I understand, the reason they were excluded in the first place was to maintain the balance of lay and legal persons but surely it would make much more sense to exclude the Attorney General, who would be involved in the appointments process at Cabinet level in any case and therefore would seem unnecessary to be included here also. (Incidentally none of the jurisdictions mentioned above include the Attorney General in their bodies).

justiceIt is clear that the judiciary is very exercised on this issue as it is very unusual for them to speak out in such a fashion and given that this is reform which is truly necessary, perhaps some compromise is now needed in order for the measure to pass. If the Government was willing to sacrifice the lay majority and settle for equal representation of lay and legal persons by including the Presidents of both lower courts and excluding the Attorney General, I wonder would this go some way towards breaking the impasse?

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Call for Papers: Inaugural Conference of the British and Irish Chapter of the International Society of Public Law (ICON-S)

Trinity College Dublin

4-5 September 2017

ICON-S is founded on a recognition that a full explication and understanding of today’s “constitutional” cannot take place in isolation from other branches of public law or in a context that is exclusively national. The same is true for these other branches too. Public law, as a field of knowledge that transcends these dichotomies, thus deserves our renewed intellectual attention. In the same vein, the divide between law and political science has become porous too. Some of the finest insights on public law come from social scientists deeply cognizant of law; also, is there any legal scholarship that does not make at least some use of the theoretical and empirical understandings and methodologies external to the legal discipline, stricto sensu?

In this spirit, the British and Irish Chapter of ICON-S issues an open call for papers and panels related to public law in the broadest sense.

The establishment of this regional Chapter of ICON-S comes at an important moment in the constitutional relationships between Ireland, Britain and Europe. The theme of the conference is “Constitutional Relations after Brexit”. Brexit dominates the political and legal landscape in Europe. Within the UK, Brexit heralds a period of radical constitutional change. It will not only transform the UK’s relationship with the EU and its Member States, with effects reaching deep within the United Kingdom legal order, but may also bring about a new phase in the constitutional relationship between London and the devolved administrations in Scotland, Wales and Northern Ireland. In Northern Ireland, the shadow of Brexit looms large. The special constitutional relationship between the United Kingdom and Ireland in respect of Northern Ireland – enshrined in the Good Friday Agreement – must adapt to the post-Brexit reality. For the European Union, Brexit requires the re-defining of the constitutional relationship between the 27 remaining Member States and the United Kingdom after over forty years of ever-deeper integration.

Professor Deirdre Curtin (EUI) will deliver the keynote address to the conference: ‘The Constitutional Structure of EU-27: A Europe of Bits and Pieces?’

Professor Peter Leyland (SOAS), Professor Aileen McHarg (Strathclyde) and Professor Colm O’Cinneide (UCL) will participate in a plenary panel discussion of the conference theme.

The remainder of the conference, which will run from the morning of Monday 4 September to lunchtime on Tuesday 5 September, will consist of parallel panels. The panels may be related or unrelated to the conference theme.

Panel proposals and paper proposals should be emailed to iconsgbie@gmail.com by Friday 30 June. Paper proposals should consist of an abstract of no more than 250 words. Panel proposals should consist of a panel blurb (again no more than 250 words) and abstracts for each proposed paper within the panel. Decisions will be made and notified by mid-July. Participation in the conference will require membership of ICON-S but this is not a precondition for submission of a paper or panel proposal.

For further information, please consult the website of the British and Irish Chapter at https://icon-sbi.org or email us at iconsgbie@gmail.com.

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Latest Controversy Demonstrates need for Transparent Judicial Appointments System

Dr Laura Cahillane

On Tuesday, as one of the final acts of Enda Kenny’s Cabinet, the Attorney General was nominated to fill a vacancy on the Court of Appeal. This, of itself, is not overtly controversial (although note the Whelehan affair in 1994). However there are factors regarding this appointment which should raise some eyebrows. First, while Máire WhelanAttorney General Maire Whelan seems to be well-regarded in legal circles, from a political perspective, there has been much criticism of her actions as Attorney General, the most serious of which centred around her behaviour on the events which led to the Report of the Fennelly Commission. What is most worrying about this appointment however, is the lack of transparency surrounding it.

The Judicial Appointments Advisory Board, which has the responsibility of advertising for vacancies and recommending candidates to the Government, apparently reported that it could not recommend a single name for the vacancy. This is highly surprising. Although as Ken Murphy, director general of the Law Society, has pointed out, appointment to judicial office does not have the same allure as in years gone by and perhaps due to the reduction in salary, the nonsensical pension requirements and the general reduction in prestige, many eminent lawyers may simply have decided they are better off where they are. However, the most worrying aspect of this whole affair is the story reported by Conor Gallagher in the Irish Times, that at least three High Court judges had applied for the position.

In order to understand why this is problematic it is necessary to understand how the judicial appointments system works.  The workings of the JAAB are outlined in a previous post here and the origins of the body are set out here. One issue which has always been conspicuous is the lack of any input from the JAAB when the vacancy is the presidency of a Court or if the vacancy is filled by the promotion of a lower judge by the Government. Presumably this is part of the unreasonable fear which has manifested itself in numerous different ways that the JAAB will somehow trespass on judicial independence or even on the Government’s constitutional power of appointment. Instead, the Government makes this appointment, with the advice of the Attorney General. In fact, according to a report by the Judiciary, in October 2013, the Chief Justice wrote to all members of the Judiciary regarding elevation to higher courts and senior judicial appointments. She advised judges that if any serving judge wished to express an interest in another judicial position such as elevation to a higher Court, or appointment as President of a Court when a vacancy arises, then expressions of interest should be made in writing by way of letter to the Attorney General. Herein lies the major problem. The person to whom judges are to apply for an appointment, has herself been appointed and we have been given no information on how this whole process operated. This is very worrying.

Jaab

While it may be the case that Máire Whelan was the most suitable candidate for the position, a process such as this where everything is shrouded in secrecy serves only to damage public confidence in whole system. In 1994, the controversy surrounding the appointment of the Attorney General to the position of the President of the High Court brought down the Government, and while the current situation is unlikely to cause such repercussions, it does raise some serious questions about favouritism and cronyism in the appointments process and it underlines the need for action on judicial appointments reform.

The Judicial Appointments Commission Bill, which has been a pet project of the Minister for Transport Shane Ross, was finally published two weeks ago. It is difficult to know whether the recent Cabinet reshuffle and change in the Ministry for Justice will have any effect on the progress of this Bill. The Bill itself is quite detailed and while there may be further details yet to be worked out as it makes its way through the Houses of the Oireachtas, it is a massive improvement on the system which currently exists and is generally to be welcomed. The main features of the Bill include a new Judicial Appointments Commission of 13 members, of whom 7 will be laypersons, including the chairperson. Following a selection procedure (which is not specified but the Bill states that the Committee may ‘do such other things as it considers necessary … in relation to selecting persons), the JAC will recommend 3 persons to the Minister for any judicial vacancy. Much of the rest of the Bill is concerned with the formation of the JAC itself and the establishment of an office etc and in general, the procedures are left to be decided by the JAC once it is established. It is disappointing that the Bill did not go further in specifying selection processes such as interviews or role plays, as happens in England and Wales for judicial appointments. Also, while certain changes are made to the eligibility requirements such as the addition of legal academics with 4 years practice experience, the opportunity is not taken to amend the vague eligbility criteria already in existence to the effect that a candidate must be ‘suitable on grounds of character and temperament’. However, it is a positive sign that section 7 recognises the compatibility of merit with diversity in judicial appointments.

One significant point which is relevant to the current controversy is the issue of the status of the recommendation made by the JAC to the Government. Section 48 of the proposed Bill states that ‘In advising the President in relation to the appointment of a person to a judicial office the Government shall firstly consider for appointment those persons whose names have been recommended to the Minister.’ It does not state what would happen should the Government refuse to nominate one of the recommended names but Section 50 does provide that the appointment to judicial office will be published in Iris Oifigiúil and the notice must  include a statement that the name of the person was a recommended name (if that has been the case). Section 51 also requires the Minister to lay before the Oireachtas at the end of each year, a statement containing details on the appointments made in that year including their experience and whether or not they were recommended by the JAC. In other jurisdictions, there is a requirement that if the Government refuses to accept the recommendation of a nominating body that it must publish stated reasons for doing so. It appears that these sections are a light version of this requirement but it certainly adds to the transparency of the system and makes it more awkward for the Government to depart from the recommendations.

However, the bottom line is that under the current system, and even under the system Constitution of Irelandwhich would be created by the proposed Bill, the Government retains discretion to appoint a candidate of its choice since that role is given to it by the Constitution and an amendment would be needed in order to reduce the influence of the Government in the judicial appointments process. However, while it would be difficult to challenge the current appointment in law, serious questions need to be answered, particularly regarding the High Court Judges who may have applied for the position and the circumstances regarding Máire Whelan’s involvement in the whole affair.

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Guest Post: David Kenny on NVH v Minister for Justice

FC-colourYesterday’s Supreme Court ruling in NVH v Minister for Justice and Equality ([2017] IESC 35) is a landmark case in several respects. A unanimous seven judge Supreme Court held that the complete ban on asylum seekers working while awaiting determination of asylum claims was “in principle” unconstitutional. It was, the Court held, an excessive violation of the unenumerated right to seek employment, found in Article 40.3 of the Irish Constitution. The judgment is significant for the rights of non-citizens and the right to seek employment, and will change the future of the Direct Provision system.

In this post, however, I wish to focus on a curious element of the case: the remedy – or rather, lack of remedy – offered by the court. The Court declined to make any order at this stage, instead proposing to revisit the issue in six months. This raises the possibility that the Supreme Court has quietly moved to introduce a new form of constitutional remedy: a suspended declaration of invalidity.

The Supreme Court Judgment

NVH arrived in the State from Burma in July 2008 and sought refugee status. His application was on two occasions refused, but the refusal was quashed and the process began again. For many years, while awaiting final determination of his claim, he resided in a Direct Provision facility in County Monaghan, receiving his allowance of €19 per week. In 2013, he was offered employment in the Direct Provision facility. However, s 9(4) of the Refugee Act 1996 provided that asylum seekers could not seek or enter employment before their application was finally determined. (This section has been largely repealed, but was replaced by an almost identical provision in the International Protection Act 2015). NVH applied to the Minister for permission to take up this employment, but the Minister refused, saying that the Act prohibited it and the Minister had no power to permit it. NVH challenged the Minister’s decision on various grounds, including a claim that the statutory ban violated his constitutional rights. He was unsuccessful in the High Court and in the Court of Appeal (Hogan J dissenting). The Supreme Court granted leave to appeal.

O’Donnell J for a unanimous Supreme Court held that the right to seek work (rather than an affirmative right to employment) was a constitutionally protected right and was clearly infringed by this statute. The Court further held that although distinctions may be made between citizens and non-citizens in respect of rights, non-citizens should be entitled to rely on those rights that “relate to their status as human persons”. Distinctions between citizens and non-citizens in respect of such rights could only be made if “such differentiation is justified by that difference in status” between citizens and non-citizens. While acknowledging the State’s entitlement to restrict the right to seek employment in respect of non-citizens and asylum seekers, and the particular expertise of the legislative and executive branches in this area, O’Donnell J held that the absolute ban imposed by the statute went too far. Without any time limit on the employment restriction (or indeed on the asylum process itself), or any ability to allow for exceptions, the section “does not merely limit the right severely: it removes it altogether”. The Supreme Court held that it if a right was in principle available to non-citizens, it was not permissible “to remove the right for all time from asylum seekers”. The absolute ban therefore violated the constitutional rights of asylum seekers.

Delayed Ruling on Invalidity

A fascinating aspect of the judgment, dealt with by the Court in a single paragraph, was the manner in which this unconstitutionality was to be resolved. Instead of invalidating the provision outright with immediate effect, the Court held that the absolute ban in the 1996 Act and re-enacted in the 2015 Act was “in principle” contrary to the constitutional right to seek employment, but did not invalidate the section:

“[S]ince this situation arises because of the intersection of a number of statutory provisions, and could arguably be met by alteration of some one or other of them, and since that is first and foremost a matter for executive and legislative judgement, I would adjourn consideration of the order the Court should make for a period of six months and invite the parties to make submissions on the form of the order in the light of circumstances then obtaining.”

Here, the Court declined to make an immediate ruling about the constitutionality of the statute, but instead deferred such a ruling while encouraging a legislative response that would resolve the issue. The Court found a constitutional problem in a law, but did not invalidate it.

This is unusual; it has rarely if ever been done by the Irish courts. It seems to be something close to a suspended declaration of invalidity. Such a declaration holds that a law is invalid but suspends the declaration for a period of time to allow a legislative response. This allows the legislature, if it so chooses, to pass a new, constitutional law to fill the gap that will be created by the invalidity. These declarations have not been formally embraced in Ireland, but they are common elsewhere; they are the perhaps now the primary constitutional remedy in Canada. The remedy was recently used by the Supreme Court of Canada to suspend the invalidation of the prohibition on assisted suicide to allow the legislature to formulate a liberalised, constitutionally-compliant provision.

The Case for Suspended Declarations

There is a great deal to be said in favour of such remedies. They avoid the problems that result from immediate and total invalidations of statutes, which remains the primary constitutional remedy in Ireland. This can, of course, have far-reaching and problematic consequences, such as when the Court of Appeal judgment in Bederev v Ireland ([2015] IECA 38) had the effect of legalising a variety of drugs, or when Moore v DPP ([2016] IEHC 244) put various suspended sentences in question. Suspended declarations avoid these somewhat chaotic and uncertain situations. It also allows for a more considered response to constitutional problems; without such a deferral of consequences in NVH, a more rushed legislative response would likely have ensued.

There is a related benefit of suspended declarations: where the consequence of invalidity are very serious, courts may be more willing to invalidate laws if they are empowered to suspend the effect. The reality is that, if the consequences of invalidation are sufficiently serious, and immediate invalidity is the only available remedy, courts will overlook constitutional problems to avoid them. Several esteemed judges have acknowledged this; Geoghegan J in A v Governor of Arbour Hill Prison ([2006] 4 IR 88) noted there was “a grave danger” that judges “would be consciously or unconsciously affected by the consequences” of invalidity if they were too severe. Hogan J has said grave consequences “would inevitably impact on the practical willingness of the courts to make [] a finding of unconstitutionality”, unless judges could summon a “quasi-Olympian air of detachment” from these consequences (FX v Central Mental Hospital [2012] IEHC 272). Suspension of invalidity can sometimes allow the unconstitutionality to be acknowledged and addressed while minimising broader fallout that might otherwise make this option unthinkable.

Finally, such declarations are said to allow a sort of dialogue between the legislature and the courts. Rather than simply invalidating a law and leaving the legislature to clean up the mess, the courts are inviting the legislature to rewrite the law in a manner that does not violate constitutional rights. This is sometimes said to lead to collaboration between the branches of government, rather than antagonism and conflict, as they work together to uphold the Constitution. However, this dialogue metaphor has perhaps been overstated; many have pointed out in the Canadian context that it is an odd, one-sided and somewhat passive aggressive dialogue that, even if somewhat more collaborative than the current Irish approach, is still not very collaborative.

Suspended declarations have not been formally endorsed, though there has been some informal judicial endorsements and some similar approaches. In the A case, Denham J praised certain aspects of Canadian alternative remedies, including suspended declarations, as being “in aid of organised society”. Hogan J has articulated a similar point extrajudicially: since invalidity can have “unfair and sometimes even chaotic consequences … the very powerfulness of the remedy would distort the court’s willingness to protect the effectiveness of the right which it was called upon to enforce and uphold” (Gerard Hogan, “Declaration of Incompatibility, Inapplicability, and Invalidity: Rights, Remedies and the Aftermath” in Keirnan Bradley et al (eds) Of Courts and Constitutions: Liber Amicorum in Honour of Niall Fennelly (Hart, 2014)). Hogan J also did something similar to this sort of declaration when he delayed the release of some prisoners whose detention he found to be unlawful under Article 40.4. (See eg Kinsella v Governor of Mountjoy Prison ([2011] IEHC 235).

There has been academic support for this change as well. Eoin Carolan has argued in favour of suspended declarations of invalidity, citing favourably the analogy to Hogan J’s approach to certain Article 40.4 applications. I have also argued for suspended declarations, as well as some other alternative remedies such as broader severance and double construction and as-applied constitutional challenges. Other remedial reforms are worth considering, but suspended declarations, in not demanding any legislative action nor altering the text or meaning of the law, raise fewer immediate concerns about interference with the legislative power. They are, therefore, more likely to find favour with the judiciary.

A Step in the Right Direction?

For those who believe that suspended declarations of invalidity would be worthwhile, the Supreme Court’s approach in NVH seems like a significant step. However, there is reason to be cautious in our optimism, as it is not clear what precisely this development might mean.

First, the Supreme Court did not grant a suspended declaration in this case; the Court did not declare a law to be invalid and suspend the effect. Instead, the Court found that the law violated constitutional rights, but deferred making an order invalidating the law, clearly in the hope that the legislature might, in the meantime, make such a declaration unnecessary. The Court did not use the language of suspended declarations or cite Canadian practice. While the effect of the Court’s approach is similar, but it is not clear that the Court has embraced this practice.

Secondly, it is premature to infer a broader intention from this single instance. Indeed, NVH was not the first time courts have done something of this sort. In Blake v Attorney General ([1982] IR 117), the Supreme Court invalidated rent control legislation, but instructed lower courts hearing subsequent cases to await new legislation before making orders that would affect existing tenants, essentially suspending the effect of the declaration. This judgment did not presage any broader change in court practice. This could be the case with NVH as well.

Thirdly, this was an easy case to defer a declaration; it did not raise the most significant problem with suspended declarations: the denial of immediate remedy to the plaintiff. It so happened NVH did not need a remedy; shortly before the Supreme Court hearing, he was granted refugee status, so there was no longer any statutory impediment to him taking employment. The deferral of a decision on a declaration for six months, therefore, did not have the effect of denying NVH relief. This neatly avoided the problem that suspended declarations allow the unconstitutional law to persist, often to the detriment of the plaintiff as they await a legislative solution. Canadian courts have dealt with this by carving out exceptions from the law for the plaintiff, but Irish courts have expressed grave reluctance to do this (see Fleming v Ireland [2013] IESC 19). The NVH case, because of its unique facts, did not raise these questions.

Finally, the Court must have known that its proposed resolution of the case was something akin to a suspended declaration of invalidity. We might therefore infer that the Court chose not to adopt the language of suspended declarations, or to suggest a major departure in practice, for a reason. This might be because the Court does not intend any major departure, or because it wishes to await another occasion, where this is the subject of focussed argument, to consider a broader extension of the practice. As to that, only time will tell. At the very least, however, NVH seems to take the courts one step closer to embracing a major remedial developments.

Dr David Kenny is Assistant Professor at the School of Law at Trinity College Dublin.

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