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 (This section has been largely repealed, but was replaced by an almost identical provision in the International Protection Act 2015).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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