THE SUPREME COURT
[Record No. 89/2016]
Judgment of Mr. Justice John MacMenamin dated the 27th day of July, 2017
THE MINISTER FOR SOCIAL PROTECTION, IRELAND AND THE ATTORNEY GENERAL
1. By reason of the statutory provision impugned in these proceedings, (s.249 (1) of the Social Welfare (Consolidation) Act, 2005), (“s.249 (1)”), the first named respondent (“the Minister”), ceased payment of the State Pension Contributory (“SPC”) to the appellant, from the date of the appellant’s detention in prison. The appellant challenges the constitutionality of this provision. This judgment addresses that issue, and thereafter briefly considers the issues of the nature of the order and remedy, which are required in the interests of justice.
2. The appellant in these proceedings was born in 1940. He spent most of his life living and working in the State. He made sufficient contributions to render him eligible for what was then known as the contributory old age pension, now called the State Pension Contributory (“SPC”). On attaining the age of 66 years in 2006, he commenced receiving the SPC.
3. The information before the Court is that, in 2011, the appellant was convicted on a number of counts relating to serious offences committed against a family member. He was subsequently sentenced to a lengthy term of imprisonment. His anticipated release date is in 2020.
The Appellant’s Claim
4. The appellant’s claim came before the High Court (Binchy J.), who delivered a carefully considered judgment on the 29th April, 2016 ( IEHC 315), dismissing the case. On the 15th December, 2016, leave was granted to appeal directly to this Court from the High Court pursuant to Article 34.5.4 of the Constitution.
5. In the High Court judgment ( IEHC 315), now under appeal, the appellant sought, in summary, a declaration that s.249(1) of the Act of 2005 was incompatible with Articles 34, 38, 40.1, 40.3 and 43 of the Constitution; damages in respect of the alleged breach of constitutional rights; an injunction directing the respondent to make provision in law for the payments to him of the SPC; declarations that s.249(1) operated in breach of his rights under Articles 3, 5, 6 and 8, in conjunction with Article 14 and Article 1 of Protocol 1 of the European Convention on Human Rights (“ECHR”); and, finally, a declaration pursuant to s.5 of the European Convention on Human Rights Act, 2003, that the impugned provision was incompatible with the ECHR.
The Impugned Provisions
“Benefits” under part (2) are defined as including: disability benefit, maternity benefit, health & social benefit, adoptive benefit, unemployment benefit, occupational injuries benefit, carer’s benefit, old age (contributory) pension, retirement pension, invalidity pension, widow(er) (contributory) pension, orphans (contributory) allowance, bereavement grants, and widowed parent grant.
6. Section 249(1) provides:
The Remainder of the Section
7. It can be said, therefore, that the provision has a broad effect on persons subject to imprisonment having been convicted of offences warranting such sanctions. However, s.249 (1) (A) of the Act of 2005 makes a different form of provision in relation to other categories of persons who might also be subject to detention by creating exceptions. Thus, it further provides:
There is a clear distinction, therefore, between those different categories of person identified in the two sub-sections, insofar as the cause of detention is concerned. The nature and effect of this, and other distinctions, is considered in this judgment, in the context of where it may be said the provision actually has effect.
“(1A) A person shall not be regarded as undergoing detention in legal custody for the purposes of entitlement to disability allowance while the person is detained for treatment pursuant to -
(a) an admission order or renewal order made under the Mental Health Act 2001,
(b) an order made under section 38 of the Health Act 1947,
(c) an order made under section 4 or section 5 of the Criminal Law (Insanity) Act 2006,
(d) an order made under section 17 of the Lunacy (Ireland) Act 1821, or
(e) an order made under section 2 of the Trial of Lunatics Act 1883.” (Emphasis added)
9. Subsequent to the enactment, a number of regulations were promulgated by statutory instrument under s.249 (1). By virtue of powers conferred by s.4 of the Act of 2005(as amended by s.17 and Schedule 3 of the Social Welfare Law Reform and Pensions Act, 2006 (No. 5 2006); and s.249 (as amended by s.4 and 17 and Schedule 1 and 3 of the Social Welfare Law Reform and Pensions Act, 2006), of the Social Welfare Consolidation Act, 2005 (No. 26 of 2005), the Minister provided that the Social Welfare (Consolidated Payments Provisions) Regulations, 1994 (S.I. 417 of 1994) (“The Principal Regulations”) be amended by inserting, -pursuant to Article 3 of the Social Welfare (Consolidated Payments Pensions) (Amendment) (No. 9), Loss of Purchasing Power Regulations 2000 (S.I. No. 160 of 2000), - into Part VI of the Principal Regulations (S.I. 417 of 1994), a new chapter, “Chapter 2A” whereby articles 123A–F provide for payments in respect of loss of purchasing power and costs in circumstances where there has been a delay of 12 months or more in the processing of an application for any benefit.
8. Section 249(6) of the Act provides:
10. Pursuant to sections 4 and 249 of the Act of 2005, the Minister also promulgated the Social Welfare (Consolidated Claims, Payments and Control) Regulations, 2007, (S.I. No. 142/2007, as amended by the Social Welfare (Consolidated Claims, Payments and Control) (Amendment) (No. 1) (Absence from State) Regulations, 2017 (S.I. 12/2017), modifying the statutory regime. In particular, by means of S.I. 142 of 2007, Part VII, Chapter 4, articles 217 -219, are to the effect that, notwithstanding s.249 of the 2005 Act, a person who is absent from the State shall not be disqualified from receiving, among other pensions, the SPC. The effect of these further regulations, collectively referred to as the Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 to 2017, is significant; as articles 218 -219 of S.I. 124/2007 extend the range of exceptions to the “disqualification effect” of s.249(1). Thus, in addition to the categories of prisoner identified, the effect of the Regulations falls only on prisoners found guilty and detained on foot of conclusive convictions by a court of law, but excludes prisoners otherwise detained, and eligible persons absent from the State.
11. Section 249(1) provides the statutory basis for the Regulations. Both the section itself, and the Regulations, provide the means whereby eligible persons absent from the State are excluded from the disqualification; so too are a range of persons subject to detention, but who are not what might be described as “criminally culpable” persons. These are described later in more detail. It is obvious that none of the articles of the Regulations provide a means of interpreting the section. That would contravene the principles of statutory interpretation.
The Grounds of Appeal
12. The Notice of Appeal raises eleven grounds under both the Constitution and the ECHR. But two main constitutional issues fall first for consideration, and are sufficient to determine the outcome of this appeal. These issues are, first, the extent of the appellant’s entitlement to the SPC, and second the effect of the section, which the appellant contends, provides for a “non-judicial” sanction or punishment, which is also indiscriminate and arbitrary. For the reasons contained in this judgment, however, it is unnecessary to consider in detail whether the denial of the SPC, in the appellant’s case, constitutes discrimination prohibited by the equality provisions of the Constitution, or contravenes any other of the constitutional values invoked, including the rights to autonomy and dignity. Equally, it is unnecessary to proceed to a detailed consideration of the ECHR issues, save for certain references, for completeness.
13. The legislation now impugned originates from s.3 of the Old Age Pension Act, 1908. Section s.3 (2) of that Act provided:
14. The emphasised clause of the original section (above) was repealed in 1919; (s.3 (3) Old Age Pension Act, 1919). A disqualification of this kind cannot be characterised as having some social purpose: it can only be seen as a sanction, which had a penal effect. There could be no other rationale for the provision as it stood then. The remainder of the provision continued in force for many years. Thereafter, the remaining disqualification provisions in that Act were repeated on at least four occasions post-1937, viz. in s.31 of the Social Welfare Act, 1952; s.129(1) of the Social Welfare (Consolidation) Act, 1981; s.211 of the Social Welfare Consolidation Act, 1993; s.22(1) of the Social Welfare Act,1995; and s.249(1) of the Act of 2005. By s.4 (3) of the Social Welfare Law Reform & Pensions Act, 2006, the Old Age Contributory Pension was renamed the “State Pension (Contributory)”. The general effect of this provision remains unaltered, through those many legislative changes. The trial judge expressed some doubts whether, at any time during its legislative history, consideration was given to the purpose and need for the provision, or its impact upon those affected by it. He considered the submission that, on each of the occasions of amendment, the Oireachtas had merely replicated the extant balance of the provision from the 1908 statute, with little consideration. But, the trial judge felt that it was highly likely that at no time during its legislative history was consideration given to the purpose”. ( IEHC 315 at par. 64). The judge concluded that the section was entitled to the full benefit of the presumption of constitutionality. The question remains, however; what was the nature and effect of the remainder of the section; if it too was not punitive?
“Where a person has been, before the passing of this Act, convicted of any offence, and ordered to be imprisoned without the option of a fine, or to suffer any greater punishment, he shall be disqualified from receiving or continuing to receive an old age pension under the Act, while he is detained in prison in consequence of the order, and for a further period of 10 years after the date on which he is released from prison.” (Emphasis added)
The Minister’s Case
15. The Minister submits that the impugned provision constitutes a legitimate and proportionate restriction of the appellant’s rights in pursuit of the common good, and that the purpose of the restriction contained in the impugned provision is to ensure that payments of State benefits are not made to prisoners whose needs are otherwise being provided for by the State. The Social Welfare (Insurance) Act, 1952 established a single co-ordinated social insurance scheme, replacing a range of different pensions. The social insurance fund was established into which all contributions were to be paid, and out of which all social insurance payments would be made. Where necessary, this fund is supplemented from the exchequer funds. Counsel submits that the purpose of the contributory old age pension, now the SPC, was to make provision for the needs of old aged former workers, as part of a wider system of social security and assistance for social need; and that the pension now exists to provide, inter alia, for the physical and medical needs of persons who no longer are of working age. It is said that in the case of the appellant, such needs are provided for “at source”, that is, in the prison. Counsel submits the legislature has a discretion to determine social needs, and has here adopted a legitimate and proportionate policy, with the effect that the State was providing for the sustenance, support, shelter and medical care of the appellant. Thus, it is contended, to make payment of the State pension to him during imprisonment would constitute an unjust enrichment of the appellant. It is said that what is in question here is a rational, proportionate, policy choice, the object of which promotes the integrity of the social insurance system and solidarity between contributors and members of society. Counsel submits that the system set up under the 2005 Act is premised upon the concept of social solidarity, which the legislature legitimately takes into account in determining the allocation of State resources, and that, insofar as the section has some form of legal detriment, it is not to be seen by way of penalty, but rather as a measure to ensure prisoners do not profit from their wrongdoing.
The Judgment under Appeal
16. In dismissing the claim, the High Court judge observed that, at an earlier stage of his imprisonment, the appellant was apparently in receipt of the larger sum of €18.90 per week from the prison authorities.( IEHC 315 at pars 7-8) He was then on what is termed an “enhanced regime” prison allowance within the prison. However, that amount was subsequently reduced to €11.90 per week, owing to the appellant’s inability to engage in work activities, apparently due, first, to a wrist injury said to have been sustained whilst in prison, and, second, certain other age-related medical conditions. It was common case that, if the appellant was available for work, he could earn an extra €3.50 per week, bringing the total received to €15.40.
17. The judgment under appeal records the appellant’s contentions that he was unable to have sufficient money to buy items in the prison tuck shop, or electrical goods; and that, while equipped with a kettle and tea, he could not afford coffee. He testified he was unable to buy clothing, other than being given prison clothing. Otherwise, he relied on clothes provided by the Prison Service, or the St. Vincent de Paul Society. He testified that while other prisoners who were in receipt of other forms of pension were able to buy clothes or other items, such as DVD players, or play stations, he could not afford to do so. Prisoners were often in receipt of army pensions or other private non-state pensions, which were not captured by the s.249 (1) disqualification.
The Trial Judge’s Conclusions – Legal Issues
18. The trial judge rejected the appellant’s case that he held a constitutional or ECHR property right. He based this finding on United States, United Kingdom and ECtHR jurisprudence to which he extensively referred. He held that the right to receive payment of the SPC was a bare statutory right only, subject to such conditions as to eligibility as are laid down by the Oireachtas from time to time.
19. The judge accepted the Minister’s submission that the Oireachtas enjoyed a wide margin of appreciation in establishing criteria for eligibility of any social welfare benefit. He accepted, too, that the Oireachtas was under a duty to ensure that such criteria were rational, objective and in pursuit of a legitimate aim, and thus were in no way arbitrary or discriminatory. He concluded that the SPC formed part of a scheme of “single maintenance”; meaning that the State should not pay more than once for the maintenance of an individual; and that s.249(1) did no more than suspend payment of the benefit in certain circumstances, including that period during which an otherwise eligible person was imprisoned. He considered that this was a rational and proportionate measure, whereby the pension should not be paid when the appellant was being otherwise maintained by the State.
20. Turning to the “non-judicial sanction” question, the judge accepted the Minister’s contention that s.249 (1) was not punitive in intent. He took the view that this was demonstrated by the fact that the disqualification provision also applied to persons who are resident outside of the jurisdiction, as well as by the fact that payment of the pension resumed upon release from prison. The Regulations are extremely complex and almost opaque, but I think the judge erred in his first conclusion. In fact, as mentioned earlier, S.I. 696 of 2006 exempts persons from disqualification by reason only of their absence from the State. The judge also observed that, while deprivation of the pension during imprisonment may well have adverse consequences, this did not mean that the provision constituted a punishment which, under the Constitution, might only be administered by a court, and that it was well established that convictions may have indirect consequences which vary in their significance, while not in themselves constituting a punishment.
21. It is necessary only to mention that the judge rejected the argument that there had been discrimination under Article 40.1 of the Constitution, holding that, in comparing himself to others in receipt of a private pension, or other public service pensions, which continued to be receivable, the appellant was not comparing like with like. The judge concluded that s.249 (1) applied to all prisoners who otherwise met the criteria for eligibility to the SPC, including those who might also be in receipt of private pensions, or other public service pensions. In the light of the conclusions in this judgment in relation to the first two identified issues, however, it is unnecessary to explore this question further. It is hard to ignore the fact that, although the Minister’s case places great reliance on social solidarity, and the avoidance of unjust enrichment, the disqualification nonetheless has a much greater effect on prisoners reliant only on the SPC.
The ECHR Claim in the High Court
22. For completeness, I add here that, in rejecting the arguments based on the ECHR, the judge held that while the appellant had established by reason of his personal circumstances that he was reliant exclusively upon the income that he received from the prison authorities, and suffered a degree of frustration and hardship, such complaints were not of a sufficiently serious nature to establish a violation of his ECHR rights. The court held that the appellant was detained in a well-run, modern, prison, with good facilities and a high standard of care; therefore, there was no breach of the inhuman and degrading treatment prohibitions contained in Article 3 ECHR, or the private life guarantees contained in Article 8 ECHR. For these reasons, the claim failed in the High Court.
23. The two constitutional issues are now addressed in turn.
(1) Legal Entitlement
24. For the purpose of this judgment, it is necessary first to consider the question of the entitlement claimed by the appellant, in particular the effect of the provisions – both the statute and statutory instruments - taken as a whole. The Minister contends that the SPC is simply, legally speaking, a privilege granted by the Oireachtas, which the Oireachtas is entitled to withdraw or modify at any time.
25. Much of the legal argument on the first issue focused on the question of property rights. Counsel for the Minister referred to Maher & Others v. The Minister for Agriculture  2 IR 139 at p. 186-187, where Keane C.J. held there were no property rights in the then E.C. milk quota regime. The then Chief Justice held that, even if one adopted the most expansive view of what might be meant by a right of property within the meaning of Articles 40.3.1 & 2, and Article 43 of the Constitution, such quotas fell beyond the well accepted species of property, whether real or personal, or even a chose in action.
26. But the circumstances in Maher are distinct from those in the instant case. The decision in Maher was based on an application in national law of a decision of the Court of Justice, R v. Ministry of Agriculture, ex parte, Bostock (Case 2/92)  ECR 1-955. ( See  2 IR 139 at 140,142,152,171) As this Court determined, the question whether the right of property safeguarded by the (then) Community legal order, was a question to be determined in accordance with Community law. The system whereby producers were entitled to sell milk to a specified level without incurring the milk super levy was a regulation of the market, which might be sold for cash, but which in no sense could be equated to a property right, any more, as Keane C.J. remarked, then one could say that a man could sell his place in a queue. Neither were property rights.
27. Hempenstall v. Minister for the Environment  2 I.R. 20, and The State (Pheasantry) v. Donnelly  ILRM 512, dealt with diminution in value of property licences. In Hempenstall, Costello J. held in the High Court that there could be no property right in a taxi licence created by law and subject to law, and changes in the law. In Pheasantry, Carroll J., in the High Court, was dealing with the forfeiture of a restaurant licence for breaches of the Licensing Code, which very substantially reduced the value of the restaurant premises. She held this was a mere “withdrawal of rights”. These authorities are not quite on point. What is in question here is disqualification from an entitlement under statute, to which, but for the impugned section and the regulations, the appellant would be entitled on foot of his lifetime contributions, wherein the appellant claims an attenuated entitlement.
28. It is true that this benefit arising out of this statutory scheme implemented in pursuance of a particular legislative policy may be varied from time to time. Thus, it cannot be a “property right” within the meaning of the Constitution. The SPC can be varied in the same way that the conditions of the milk quota scheme under consideration in Maher could be changed. Such variation (for example, by way of a budget decision) could not be characterised as an infringement of the property right of the many people who might be entitled to the SPC. A decision to vary the eligibility terms attaching to the SPC would simply be an example of the Oireachtas deciding how monies belonging to the State should be distributed, and therefore to be considered in the context of the well known judgment by Costello J. in the High Court in O’Reilly v. Limerick Corporation  ILRM 181.
29. Counsel for the Minister also cited Carson & Others v. The United Kingdom  51 EHRR 13, in which case, ultimately, the ECtHR agreed with the House of Lords decision therein, wherein Lord Hoffman considered there was an inaptness of the utilisation of the words “insurance”, and “contributions”, when speaking of State insurance contributions, thereby inaccurately suggesting an analogy with a private pension scheme. The conclusion of the House of Lords and ECHR in Carson was that, from the point of view of the citizens who contribute, national insurance contributions are little different from general taxation, which disappears into the “communal pot of the consolidated fund”, and is disbursed therefrom. Thus, the ECtHR concluded the difference is only a matter of public accounting. It could not be said there was a Convention “property right”.
30. Counsel for the Minister pointed out that, by contrast with Pay Related Social Insurance, where the rate of contributions is related to earnings, with higher earnings paying more; in the case of the SPC each contribution is of equal value in the calculation of entitlement. PRSI contributions are not themselves determinative of an entitlement to SPC, nor are they wholly determinative of the rate of SPC. Thus, she contended, PRSI contributions are similar to, and have the same effect as, the national insurance contributions referred to in Carson. In the overall statutory scheme, the Minister submits the appellant’s P.R.S.I. contributions cannot be likened to contributions which a person makes to a private pension scheme.
31. It is necessary then to consider precisely the nature of the entitlement now at issue. It is best described as a qualified entitlement derived from statute. There are, however, a number of distinct features which, counsel for the appellant says, were not sufficiently adverted to by the High Court. It is true that, as distinct from the “licensing/privilege” cases cited earlier, the impugned section here comes into effect after a sentence of imprisonment resulting from a conviction by a court of law. But the section does not come into effect by virtue of a court order. Next, the appellant does not claim an entitlement to a pension in a specific amount; rather, he claims an entitlement to the SPC at the current rate payable to all eligible persons on foot of the contributions they have made. There is though a significant statutory aspect to the entitlement. Section 108 of the Act of 2005 provides that, subject to the Act, a person “shall be entitled” to the SPC, where he or she has reached pensionable age and satisfies the contribution conditions identified in s.109 of the Act. The appellant is compliant with the requisite qualification-conditions, and there would be at least a prima facie entitlement. But the Minister says any such entitlement is bound by the conditions of the statute and regulations.
32. Two decisions of our courts were relied on by counsel for the appellant as having a considerable bearing on the circumstances of this case. In Cox v. Ireland  2 I.R. 503, the plaintiff was employed as a teacher in a community school. He was convicted by the Special Criminal Court of a scheduled offence, and sentenced to 2 years imprisonment. On his release from prison, he wished to resume his former teaching position. He was advised that s.34 of the Offences Against the State Act, 1939 applied to his case, as a result of which not only was his post in the school vacated, he was also ineligible for re-employment in the school, or any school funded by the State for 7 years from the date of his conviction. But the provision also stipulated his pension was forfeited, and his right to pay related social insurance benefit was lost. This Court then had to consider whether there was an “unjust attack” on the plaintiff’s property right, albeit bearing in mind that what was in question in Cox was a pay related insurance benefit.
33. This Court had no difficulty in holding that the provisions of s.34 of the Act of 1939 not only could potentially constitute an attack upon the un-enumerated personal rights to earn a livelihood of any person to whom those provisions applied, but also upon the constitutionally protected property rights of such person. The Court considered that the true question was whether the provisions of s.34 of the Offences Against the State Act, 1939, when read in conjunction with other relevant provisions of the Act of 1939, constituted a failure to protect the rights of a citizen, which was not warranted by the objectives of the Act. The Court pointed out that the section was mandatory in its application, and could not be avoided in the case of a person to whom the provision applied, save where the Director of Public Prosecutions decided to direct that such a person be tried in the ordinary courts. An accused person could not make representations in relation to the decision of the Director. Thus, notwithstanding the fundamental state interests which s.34 of the Act sought to protect, the provisions of that section failed, insofar as was practicable, to protect the constitutional rights of the plaintiff, and were, accordingly, impermissibly wide and indiscriminate. This Court held that the power of the government, pursuant to the same section, and its discretion to remit in whole or in part the consequences of s.34 in an individual case, had no bearing on the invalidity of the section, having regard to the provisions of the Constitution.
34. In Cox, however, this Court was dealing with an employment-related pension. A distinction can, therefore, be drawn between the facts of Cox, and the instant case, in that regard. But one cannot ignore that what is in question here is nonetheless a statutory entitlement, as set out by ss. 108 and 109 of the Act of 2005. But by contrast, the entitlement here is not a contractual right, such as arose in Cox. As in Cox, the impugned section is mandatory in its application; it does not, apparently, allow for a remission, or contain any ameliorative provision, similar to that contained in s.34(5) of the Offences Against the State Act considered in Cox. The impugned provision appears to affect all prisoners without distinction as to means. It is said that the objective of the Act of 2005 is social solidarity, and to prevent unjust enrichment; but the provision impacts harder on prisoners of no means, or few means. In fact, all prisoners, regardless of means, are subject to the disqualification, but prisoners who have a private pension, or even an Army or other public service employment pension, are entitled to retain these whilst in prison. It is hard to avoid the conclusion that the measure is both arbitrary and discriminate. Cox, therefore, has more bearing on the issue than the authorities cited by the Minister.
35. Lovett v. Minister for Education, Ireland & The Attorney General  1 I.L.R.M. 89 (The High Court, Kelly J., 7th July, 1996), is to similar effect. The case also concerned a contributory pension. Section 34(5) of the Offences Against the State Act, 1939 permitted the government, at its absolute discretion, to remit in whole or in part any forfeiture or disqualification incurred under the section.
36. In Lovett, paragraph 8(1) of the Secondary Teachers’ Superannuation (Amendment Scheme) 1935 (Statutory Rules and Orders, 1935 No. 48) provided that, where a person in receipt of a pension was sentenced to a term of imprisonment exceeding 12 months, such pension should be forfeited as from the date of such conviction.
37. Applying the principles set out in Cox, Kelly J. had no hesitation in holding the right to a pension in that case was a protected constitutional right. He held the section was an unreasonable and unjustified interference with the plaintiff’s entitlement. He pointed out that the provision was arbitrary, applying to a wide variety of crimes of varying seriousness. In my view, Cox and Lovett come closer to the issue before this Court.
Flemming v. Nestor
38. In his consideration of the property right issue, the learned trial judge placed reliance on the decision of the Supreme Court of the United States in Flemming v. Nestor, 363 U.S. 603 (1960)( IEHC 315 at pars 68070). It is common case that this decision was not cited by either side in the High Court. While, of course, a judge is entitled to refer to a decision which is not cited, the situation is different if that decision is effectively to become an important part of the ratio of his or her judgment. There, generally, a judge should draw the attention of counsel to the case, and as it is likely to be of importance, then invite submissions thereon. Counsel for the appellant says that the court should have had full information and submissions regarding the United States legislation under consideration, and whether the “Due Process clause” contained in the Fifth Amendment of the Constitution of the United States has similar wording and effect to the property provisions contained in our own Constitution.
39. Insofar as relevant, what is referred to as the “Takings Clause” of the Fifth Amendment states that “… nor shall private property be taken for public use without just compensation.” The text is significantly different from the rights to property identified in the Constitution, in Article 40.3, where the right is to be protected against unjust attack, and those contained in Article 43, which are characterised as antecedent to all positive law, in circumstances where the State guarantees to pass no law attempting to abolish the right of private ownership. The guarantee is tempered by the recognition that such rights ought, in civil society, to be regulated by the principles of social justice, and thus, the right may be delimited so as to accord with the exigencies of the common good.
40. Flemming involved a challenge by the plaintiff, Ephram Nestor, to the constitutionality of s.1104 of the 1935 U.S. Social Security Act. By that provision, Congress had reserved to itself the power to amend and revise the scheduled benefits. Nestor, an immigrant from Bulgaria, became a member of the Communist Party for the period 1933 to 1939. He was eligible for social security payments in 1955. He was deported in 1956 for having been a member of the Communist Party for the 6 year period some 20 years before. Section 202(n) of the United States Social Security Act provided for the termination of social security payments when an alien is deported for being a member of the Communist Party.
41. For the majority of five judges on the court, Harlan J. held that there was no contract between the plaintiff and the State, and there was no contractual right to receive social security payments. The majority of the court held that payments made under the Social Security provisions were not “property rights”, and were not protected by the Takings Clause of the Fifth Amendment. The majority held that the interests of a beneficiary were protected only by the “Due Process” clause. The court went on to find that such government action was valid unless it was patently arbitrary, and utterly lacking in rational justification. Harlan J. held that the provisions of s.202 (n) were not irrational, and could have been justified by the desire to increase the purchasing power of those living in America, because those living abroad would not spend their payments there.
42. However, four members of the court, Warren C.J., Brennan, Douglas and Black dissented, and would have held that the deprivation of the plaintiff’s statutory right to an old age pension was in violation of the United States Constitution. In fact, the strong dissenting opinion of Black J., in the minority, at page 622 of the Report, is rather more on point. He considered that the State had cut off payment without compensation, in violation of the due process clause, and the Fifth Amendment. The measure, as instigated, imposed an ex post facto law and bill of attainder by stamping the plaintiff, without a court trial, as unworthy to receive that for which he had paid and which the government had promised to pay him. These views come closer to reflecting those of this Court in Cox v. Ireland  2 I.R. 503, an authority which counsel for the appellant submits was not sufficiently analysed in the High Court.
43. Reflecting the decision of the majority in Flemming, the trial judge held that to hold there was an entitlement to SPC would unlawfully fetter the discretion of the Oireachtas to fix and determine eligibility for such a pension. Here it is illuminating to refer to the effect of the statutory provision which applied in Flemming, where Congress had, in terms, reserved to itself the power to amend and revise the scheduled benefits, and thereafter compare it with sections 108 and 109 of the Act of 2005, which provide that, subject to compliance, an eligible person “shall be entitled” to a pension. The provisions differ significantly.
44. As the trial judge correctly points out, Flemming has never been reversed. It was applied in Weinberger v. Salfi, 422 U.S. 749, 768 , and Richardson v. Belcher, 404 U.S. 78 . However, it was heavily distinguished in Goldberg v. Kelly, 397 U.S. 254 , and Matthews v. Eldridge, 424 U.S. 319 . See ‘The New Property’, Charles A. Reich, The Yale Law Journal, Volume 73, No. 5, April, 1964, AP 733-787, and also ‘Flemming v. Nestor: Anticommunism, the Welfare State, and the Making of New Property’, Tani, Law & History Review, Summer 2008, Volume 26, University of Illinois.
45. For the purposes of this judgment, it is unnecessary to hold that the statutory entitlement contains all the attributes of a property right, properly so-called. What ss.108 and 109 of the Act undoubtedly do contain is a legal entitlement, on foot of which, subject to compliance with the statutory conditions, an eligible person might sue if denied the pension. Of course, eligibility hinges on compliance with conditions. But, the statutory provisions, at least, give rise to a justiciable, if conditional, legal entitlement. It is unnecessary to go so far as to hold, therefore, that this constitutes a form of property right recognised and protected by law. The Minister submits there has been a breach of the statutory conditions. But, what is undoubted is that the provision is mandatory, not subject to any provisions of law, and affects some prisoners in a more severe way than others in receipt of private pensions, or other pensions, emanating from the State, such as Army pensions.
46. The position in this case is distinct, therefore, from that considered by this Court in Conroy v. The Attorney General & Another  I.R. 411 at 438-441, where this Court sought to address the distinction between what was termed “primary” and “secondary” punishment. The sanction which arises here is not as a consequence of a judicial order at all. There is no judicial finding or determination which triggers the section. There is no exercise of judicial discretion regarding the extent or impact of the disqualification in question. It is the fact of imprisonment. Unlike Conroy, the issue does not concern “primary” or “secondary” punishments, but rather that the sanction comes into effect without any court order at all, and is in this sense also arbitrary and discriminatory, operating without any proportionality consideration. As already pointed out, the facts of this case are entirely distinct from those in Maher, Hempenstall and Pheasantry. The significance of this entitlement now falls to be considered in the light of the second issue.
47. The Minister contends that the Regulations, contained in the Statutory Instruments, simply “regulate” the application of parts of s.249. But, it is necessary now to look at the form of that regulation from a different standpoint; asking the question whether the effect of the provision and the Regulations constitutes a penalty, moreover, one which is not imposed by a court? Taken together, the Act and the three regulations referred to earlier, draw a distinction between absences from the State, which may not disqualify a person from receiving SPC, and, additionally, contain provisions regarding other absences on holidays, caring for a relative, or absence while receiving treatment for a disability. A ministerial discretion may be involved. There are also other exceptions. Article 218 of the 2007 Regulation provides, inter alia, that a period of detention in respect of a criminal charge, which is subsequently withdrawn, or in respect of which a person is subsequently acquitted, does not disqualify that person from receiving SPC. The section is not to apply either in the case of a finding of not guilty by reason of insanity, or where a person is detained in an institution for the treatment of mental illness, or a person imprisoned for not paying a fine. The remaining category, to which no exceptions or distinctions apply, are prisoners such as the appellant. The distinguishing features are, therefore, absence from the State for various reasons; and imprisonment, where there has been no finding of “full culpability”.
48. The only conclusion regarding Articles 217 and 218 is that the mandatory sanction is to be confined to the specific class of person who are deemed to be “fully criminally culpable”: it is a sanction imposed by statute and regulation on those found by a court of law to have committed serious crimes, warranting imprisonment. But, in fact, this sanction is not imposed by a court of law. The effect of the statute, as applied, is to focus the impact of the mandatory disqualification directly on persons who are subject to terms of imprisonment, such as the appellant.
49. The principle of separation of powers is fundamental to the very nature and identity of the State, as framed in the Constitution. (Buckley & Others (Sinn Fein) v. Attorney General & Another  I.R. 67); Crotty v. An Taoiseach  IR 713).
50. The issue in this case, however, more directly arises from Deaton v. The Attorney General & The Revenue Commissioners  I.R. 170, where this Court addressed the role of the executive in selecting penalties within a prescribed range. As pointed out in the judgment of this Court in Gilligan v. Ireland  2 IR 745, Deaton has been internationally cited and relied upon as identifying appropriate boundary lines between the executive and judicial organs of government.
51. In Deaton a challenge was made to the Customs (Consolidation) Act, 1876; which provided that any person found guilty of an offence “should forfeit either treble the value of the goods, including duty payable thereon, or £100”, at the election of the Revenue Commissioners, who were successors in title to the Crown Commissioners of Customs and Excise. Thus, it was the executive which was able to choose between those alternative penalties in any given case. The Supreme Court held this contravened the principle of separation of powers.
52. Deaton establishes, first, that it is for the legislature to prescribe what punishment shall attach to the commission of such offence. In that process, the legislature may identify a single or fixed penalty, or a maximum penalty, or a minimum penalty, or alternative penalties. Second, there is a distinction drawn between the prescription of a fixed penalty, and the selection of a penalty for a particular case. The prescription of a fixed penalty is a statement of a general rule which is one of the characteristics of legislation. This is wholly different from the selection of a penalty to be imposed in a particular case. In Deaton, O’Dalaigh C.J. went on to point out that, if a general rule is enunciated in the form of a fixed penalty, then all citizens convicted of the offence must bear the same punishment. However, if the rule is stated by reference to a range of penalties to be chosen, according to the circumstances of the particular case, then a choice or selection of penalty falls to be made. At that point, the matter has passed from the legislative domain.
53. However, as O’Dalaigh C.J. further explained, a mandatory penalty suffers from the flaw that all citizens, if convicted, no matter what their circumstances, must face the same penalty. Such is not the position when the legislature prescribes a choice of penalties. The underlying principle, identified in Deaton, therefore, was that, while the legislature states a general rule, the application of that rule is for the courts; that is, the degree of punishment which a particular citizen is to undergo for an offence is a matter which may vitally affect his liberty or welfare. Thus, the identification of the degree of punishment is a function of the administration of justice. Is s.249 (1) reconcilable with Deaton principles?
54. Counsel for the Minister submits there is a rationale for the provision, based on unjust enrichment. But is this the true rationale, bearing in mind the provision’s legislative history? I am not persuaded. Even on a consideration of the exceptions and exclusions which are, in a manner of speaking, “ring fenced”, one is inevitably left with the conclusion that the provision is intended to impact, only on “culpably” guilty persons. The categories of person who are excluded from disqualification, such as those found not guilty, those detained pending trial where there is no charge, those where there is a qualification on the finding of guilt, or where there is absence from the State, leaves only that category of persons who are found guilty in due course of law, and who do not come within the exceptions.
55. The Court is not asked in this case to characterise what is a minor or non-minor offence. (c.f. Melling v O’Mathghamhna  IR 1; Conroy v. Attorney General  I.R. 411). The question, rather, is whether the impugned provision constitutes a punishment and, therefore, an impermissible administration of justice by legislation. In seeking to establish that the effect of the provision is not a punishment, the respondent places much reliance on the High Court judgment of Finlay Geoghegan J. in Enright v. Ireland  2 I.R. 321. Enright involved a challenge to the constitutionality of the Sex Offenders Act, 2001, which required persons convicted of specified offences to notify the garda authorities of their whereabouts. One of the issues which the court had to consider there was whether or not the operation of this notification requirement constituted a penalty for the offence, the imposition of which would be inconsistent with the constitutional right under Article 38.1 not to have a penalty for an offence imposed which did not exist at the date of the offence.
56. In Enright, Finlay Geoghegan J. engaged in a detailed analysis of the provision in question there, applying criteria identified in the United States decision of Kennedy v. Mendoza-Martinez  372 U.S. 144. Applying these criteria, she concluded that the provision in question there did not evince an intention that the statute be considered as punitive. The court held that it had not been established that the provision in question was punitive in purpose or effect. It is unnecessary to detail each of the seven criteria enumerated.
57. Having regard to its legislative history, and its impact, the impugned provision was, undoubtedly, originally intended to be punitive in purpose. It cannot be convincingly now said its effect has, as it were, “morphed” into something different, namely, a “social solidarity” provision. The sums of money involved are significant, and could amount in total to six figures by the conclusion of the sentence. While it may be said the provision’s purpose is to avoid unjust enrichment, its true effect can only be described as punitive, retributive, indiscriminate, and disproportionate. No such financial penalty is mandatorily imposed on prisoners with independent means. Thus, applying the Enright criteria, the provision is a penalty. By contrast with the notification requirement contained in s.10 of the Sex Offenders Act, 2001, considered in Enright, the appellant here is placed under a significant “disability”, or more accurately, a detriment. What is in question is significantly more than the imposition of “minimal” notification requirements, as in the case of sex offenders; the extent of intervention into the appellant’s rights is significantly greater than the “registration and compliance” provisions which were under consideration in Enright. But, more significantly, the section still is a punishment which is not imposed by a court.
58. I am unable to agree that there are valid distinctions in principle between the impugned provision and that in Deaton. It is said that the operation of the impugned provision in Deaton was linked to the commission of particular offences, whereas the operation of s.249(1) is not, prima facie, linked to the commission of any specific offences, and that, subject to ministerial regulations, it comes into effect once the conditions provided for therein are met. I think this is a distinction without a difference. Section 249(1) applies in the case of all offences, additionally to the penalty imposed by a court; but it is not imposed by a court at all, and not the subject of any judicial consideration, or discretion. It is entirely distinct from the category of “ancillary orders” considered in other legislative contexts.
59. To my mind, the prohibition on the payment of the SPC to sentenced persons can only constitute an additional punishment. Article 34 of the Constitution provides that justice shall be administered in courts established by law, by judges appointed under the Constitution. Article 38 provides that no person shall be tried on any criminal charge, save in due course of law. But this punishment is not imposed by a court at all. As such, it contravenes Articles 34 and 38 of the Constitution. The imposition of penalties, in the context of sentencing a person convicted of crimes, is a function exclusively reserved by Article 34 of the Constitution to the courts. Sentencing is an integral part of trial in due course of law, guaranteed by Article 38 of the Constitution. The provision, as applied, offends against those principles.
60. What is in question here is a statutorily based sanction, which is imposed entirely outside the domain of court proceedings, in an indiscriminate way, which is essentially punitive in effect. It is, in that sense, arbitrary, as well as constituting an invasion into the judicial remain. In light of the nature and extent of these incursions, no argument based on proportionality, or social solidarity, can meet the appellant’s case, as the measure constitutes an incursion into the domain prescribed as judicial under the Constitution.
61. The fact that the provision is broad in its terms does not entitle the State to, by regulation, adopt a means of application which constitutes an incursion into the judicial domain. Disproportionate or discriminatory means negate any lawful end. The Minister must be found to have acted ultra vires, if the necessarily implied constitutional limitation of jurisdiction invades the judicial domain. The effect of the section in question, when combined with the regime established by the regulations made under it, offends against the separation of powers principle.
62. The effect of s.249 (1) is to result in an impermissible legislative incursion into the judicial function by making provision for the imposition of an extra penalty upon an individual in receipt of SPC, without permitting the fact of this to be taken into account by a sentencing court in exercising its discretion as to the appropriate penalty to be imposed upon a person convicted of an offence that attracts a sentence of imprisonment. The manner in which the extra penalty operates fails to safeguard the appellant’s right to have justice administered in courts established by law, by judges appointed in the manner provided by the Constitution. In my view, the section as applied contravenes the principles of separation of powers, and administration of justice, fundamental to the Constitution, and as more fully explained by the courts in Deaton.
63. It is necessary to point out, however, that the effect of this sanction does not, in any way, render infirm the sentence which was actually imposed by the courts, and which is to be seen as distinct from the impugned provision. What is in question is the effect of the impugned provision which falls on the appellant; this does not affect the validity of the court order committing him to prison and for his continued detention there. The separate question is whether it can now be remedied by order of this Court. To my mind, this can only be achieved by a finding of invalidity.
64. Bearing these findings in mind, it is unnecessary to proceed to any full consideration of the rights under the Convention. The Court has been referred to Stec & Others v. The United Kingdom, ECtHR (Application No. 65731/01 and 65900/01) 6th July, 2005, (2005) 41 EHRR SE 18, (2005) 41 EHRR SE 295,  ECHR 924; and Stummer v. Austria, ECtHR (Application No. 37452/70), 7th July, 2011, (2012) 54 EHRR 11, 54 EHRR 11,  ECHR 1096, 31 BHRC 573. In Stec, the ECtHR held that the difference in State pensionable age between men and women in the United Kingdom was originally intended to correct the disadvantaged economic position of women. It continued to be reasonably and objectively justified until such time as social and economic changes removed the need for, what is called, special treatment. The respondent-state’s decisions as to the precise timing and means of putting right the inequality were, in the court’s view, not so manifestly unreasonable as to exceed the wide margin of appreciation allowed in such a field. Similarly, the court held that the decision to link eligibility for, what was called in the United Kingdom, Reduced Earnings Allowance (REA), to the pension system was reasonably and objectively justified, given that the benefit was intended to compensate for reduced earning capacity during a person’s working life. The court held there had not been a violation of Article 14 of the Convention, taken in conjunction with Article 1 of Protocol No. 1. In Stummer, the ECtHR held, on different facts, that a person, formerly a prisoner, who had paid contributions entitling them to a State pension, has a proprietary interest in such a pension, pursuant to Article 1 of Protocol No. 1 of the Convention. In the light of the proposed findings of this Court, it does not appear that these judgments bring the case any further.
65. My conclusion is, therefore, 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.
66. However, that does not necessarily have the result that prisoners must receive the full payment of the relevant benefit while incarcerated. There is already in place a statutory scheme for the making of compensation orders, which can be paid by instalments, set out in ss. 6 to 9 of the Criminal Justice Act 1993 as amended. This scheme may not have been seen as effective in the past, in cases where the offender would automatically lose any social welfare payment upon imprisonment. As a consequence of the decision in this case, a sentencing court will now be able to consider future social welfare payments as a source of compensation for victims of crime. The position in relation to persons such as the appellant currently serving a sentence is more complex, since their sentence has been finalised by the court.
67. In two recent judgments, this Court has addressed the question of constitutional remedies. NVH v. Minister for Justice & Equality & Others  IESC 35 concerned the constitutional right to seek employment of the applicant, NVH. In that judgment, O’Donnell J., proposed that an appropriate course of action was to adjourn the case for a period of months, and then invite the parties to make submissions on the form of order which should be made, in the light of the circumstances then obtaining, in particular, the form of new amending legislation.
68. More recently, in a concurring judgment in Persona Digital Telephone Limited & Another v. Minister for Public Enterprise & Others  IESC 27, Clarke J., without reaching a definitive conclusion, considered there was an arguable case that “the constitutional right of access to the court might include an entitlement that the right be effective, not just as a matter of law and form, but also in practice”, and that the right in question in that case might be breached in at least some modern circumstances. The judgment went on to observe that, if such a breach of constitutional rights were to be established, the choice between a range of possible ways in which such a breach might be remedied, was fundamentally a matter either for the Oireachtas or the Executive. The judgment makes the point that, in circumstances where a breach of constitutional rights is established, it is the courts which, ultimately, have to find the remedy. Thus, it would be appropriate for a court to afford the Oireachtas, and/or the Executive, an opportunity to decide what the best legislative solution might be. If, however, in such circumstances no action whatsoever was taken, or if the action taken was insufficient to meet whatever requirements had been identified, there might very well be a strong argument that the courts’ jurisdiction would necessarily have to extend to taking whatever measures were necessary.
69. In the light of the fact that the parties herein have not had the opportunity of addressing the Court in relation to the question of remedy, I would propose adjourning this matter for a limited period in order to allow the parties to make submissions on the question of a remedy, on the facts of this particular case.
70. I would also propose that counsel be then heard in relation to a cross-appeal which was brought in relation to the trial judge’s decision to award costs to the appellant, despite his conclusions on the outcome of the case.