S57 C v Minister for Social Protection & anor [2018] IESC 57 (29 November 2018)

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Cite as: [2018] IESC 57

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Judgment
Title:
C v Minister for Social Protection & anor
Neutral Citation:
[2018] IESC 57
Supreme Court Record Number:
89 & 98/16
High Court Record Number :
2013 6753 P
Date of Delivery:
28/11/2018
Court:
Supreme Court
Composition of Court:
Clarke C.J., O'Donnell Donal J., McKechnie J., MacMenamin J., O'Malley Iseult J.
Judgment by:
Clarke C.J.
Status:
Approved
Result:
Other
Details:
Judgment also by McKechnie J.
Judgments by
Link to Judgment
Concurring
Clarke C.J.
O'Malley Iseult J.
O'Donnell Donal J.
Clarke C.J., McKechnie J., O'Malley Iseult J.
MacMenamin J.


Judgment

THE SUPREME COURT
Record No: 89/2016
Clarke C.J.
O'Donnell J.
McKechnie J.
MacMenamin J.
O'Malley J.

Between/
C
Appellant
And
The Minister for Social Protection, Ireland and the Attorney General
Respondents
Judgment of Mr. Justice Clarke, Chief Justice, delivered the 28 th of November 2018
1. I agree with the judgment of O'Donnell J. both as to the conclusions reached and as to the reasoning leading to those conclusions.

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

      (a) The exceptionality of the circumstances in which it would not be appropriate to make an immediate declaration of unconstitutionality and the reasons why a declaration should be made in this case today;

      (b) The undesirability of a Minister, either directly or indirectly, seeking to engage with the Court on the form of legislation which might be proposed in circumstances where a declaration of inconsistency with the Constitution either has been made on a deferred basis or is due to be made after an adjourned period following on from the delivery of a judgment determining such inconsistency; and

      (c) The fact that it may be necessary, in an appropriate case, to explore in greater detail the proper approach to be adopted in cases such as Murphy v. The Attorney General (1982) IR 241 and, indeed, this case where part of a statute is declared inconsistent with the Constitution, thus giving rise to a situation where the remainder of the statute is in force but in a form which was not contemplated by the Oireachtas.

1.3 It certainly does not follow that the constitutional justice of cases such as those mentioned at (c) above necessarily requires that a person be entitled to the full benefit of a statute in a form which might never have been enacted (or at least enacted in the same way) had the impugned provision been known to be inconsistent with the Constitution at the time of the passage of the legislation concerned. Such an approach underlies the view expressed by O'Donnell J. in his judgment, with which I concur, that persons who have not challenged the provision in question cannot expect to obtain a windfall gain because it happens to be struck down in part. But it also follows that a court may have to do the best it can in fashioning a just solution in all the circumstances of the case.

1.4 It would be wrong, for the reasons identified by McKechnie J. in his judgment, to attempt to second guess the precise measures which the Oireachtas might have introduced had it been aware that the provision now struck down was inconsistent with the Constitution less still to engage with the question of the measures which the Oireachtas might now consider putting in place given the declaration of inconsistency with the Constitution which is to be made today.

1.5 However, it is sufficient for present purposes to acknowledge that there are a wide range of potential measures which might have been or might now be introduced which would fall short of conferring on Mr. C the entitlement to obtain a full pension. To hold that he is retrospectively entitled to a full pension as a consequence of the declaration of inconsistency with the Constitution being made today would, therefore, be to confer a windfall gain on him.

1.6 Against that background I am in agreement that the sum of €10,000 proposed in the judgment of O'Donnell J. meets the justice of this case but, like McKechnie J., I would reserve the right to revisit the precise approach which may be appropriate in cases such as this should that question arise again.




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

Introduction
1 On 27 July 2017, this court delivered a judgment (MacMenamin J.; Denham C.J., McKechnie, Clarke and O'Malley JJ. concurring) on the substantive appeal from the decision of the High Court, which had refused to dismiss the challenge to the non-payment of State pension (contributory) to the appellant pursuant to s. 249(1) of the Social Welfare (Consolidation) Act 2005 ("the 2005 Act"). The judgment of MacMenamin J. at para. 65 concluded that "the State may not operate a disqualification regime that applies only to convicted prisoners and, thereby, constitutes an additional punishment not imposed by a court dealing with an offender". However, the court did not immediately proceed to make a declaration of invalidity in relation to s. 249(1), or any portion thereof. Instead, adopting a course which had been recently applied in the decision of N.H.V. v. Minister for Justice and Equality [2017] IESC 35, [2018] 1 I.R. 246 and discussed in Persona Digital Telephone Ltd. v. Minister for Public Enterprise [2017] IESC 27, (Unreported, Supreme Court, 23 May 2017), the court adjourned the matter for a limited period to allow the parties to make submissions on the question of the remedy, on the facts of the particular case.

2 While this development has been described as a "suspended declaration", which is a term applied to a technique adopted in some jurisdictions, it is apparent that the approach of the court in the cases mentioned has been rather more tentative. A suspended declaration involves the making of a declaration of invalidity but directing that it shall not come into effect for a given period. In these cases, the court has not made a declaration, but rather has adjourned the question of determination of the appropriate remedy (which may include a declaration of invalidity). Indeed, in theory it may be open to the court to now declare that s. 249(1) was invalid and of no effect from the date of its passage into law, and did not authorise or permit any step taken after the delivery of the judgment. Nevertheless, the practical effect of the order made in this case is to indicate an unconstitutionality, but to leave in place the legislative provision, permitting prima facie the continued operation of a law considered to be inconsistent with the Constitution for the period between the delivery of the judgment and the making of any formal order. Viewed in that way, the order raises many of the issues involved in the making of suspended declarations of invalidity, and has been discussed in this case by reference to the scholarly debate in this jurisdiction and elsewhere on the appropriateness of making such orders, which is helpfully considered in the judgment MacMenamin J. delivers today.

3 The court took the course of adjourning consideration of the appropriate order to make in this case because, not alone were the provisions of statute themselves somewhat complex and the subject of repeated amendment and adjustment, but much of the argument in the case focussed upon the effect of the interaction between the provisions of the 2005 Act (as amended), and regulations made pursuant to the Act and contemplated by s. 249. Furthermore, the precise basis of the inconsistency with the Constitution identified in the judgment was itself rather nuanced. It is necessary, therefore, to touch briefly on those issues once again, to set out the issue to be determined in this judgment.

4 Section 249 of the 2005 Act can be traced back to the early days of a modern welfare state, and indeed to the provisions of the Old Age Pensions Act 1908. In effect, s. 249 provides for the disqualification from identified social welfare benefits of certain classes of persons, which prima facie disqualification was, however, subject to regulations which could be made under the Act. In broad terms, s. 249(1) provides for the disqualification of persons outside the State, and those undergoing imprisonment or detained in lawful custody, from receiving benefits under Part 2 of the 2005 Act. Section 249(2) makes similar provision in relation to any portion of benefit payable to a person in respect of a spouse where that spouse is either absent from the State or undergoing imprisonment or detained in legal custody. Similarly, s. 249(6) makes provision in respect of unemployment assistance, pre-retirement allowance and disability allowance while a person is resident temporarily or permanently outside the State, or once again, undergoing imprisonment or detention in legal custody. Section 249(1) was the operative provision in this case, and accordingly the one to which attention was focussed, but it is plain that the reasoning of the court is equally applicable to other disqualifications from benefits. Section 249(1) (as amended) provides, so far as is relevant:

      "Except where regulations otherwise provide, a person shall be disqualified for receiving any benefit under Part 2 (including any increase of benefit) for any period during which that person—

      (a) is absent from the State, or

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

5 However, regulations made under the 2005 Act have cut down the sweep of the statutory disqualifications provided for under ss. 249(1), (2) and (6). It can be said that this outcome was contemplated by the opening words of s. 249(1): "[e]xcept where regulations otherwise provide". Neither the power to make such regulations, nor the terms of the regulations themselves, were, however, challenged in these proceedings. Instead, the existence of the regulations and their terms was an important linchpin of the appellant's case. It is sufficient for present purposes to refer to Article 218 of S.I. 142/2007 - Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 ("the 2007 Regulations"). That provides that s. 249 shall not operate so as to disqualify a person for receiving a series of benefits where a person is lawfully detained in any institution for the treatment of mental illness or infectious disease, with the exception of a person whose detention is consequent upon a finding of not guilty by reason of insanity under the provisions of the Criminal Law (Insanity) Act 2006. Furthermore, s. 249 does not apply where a person was detained in lawful custody in respect of his or her being charged with a criminal offence, and the charge is subsequently withdrawn or he or she is acquitted. Finally, even in a case where detention is consequent upon a conviction, the disqualification in respect of certain benefits does not apply if the imprisonment is undergone as an alternative to payment of a fine. The clear thrust of the regulations, therefore, was to cut down the sweep of the disqualification under s. 249 and, in broad terms at least, to limit it to the case of a person convicted and sentenced to imprisonment for a criminal offence, or tried for a crime and found not guilty by reason of insanity. Since, however, such persons were not disqualified for disability allowance by virtue of the provisions of s.249(1A)(c) of the 2005 Act, the practical consequences of the exemptions contained in the regulations appears to be that the only persons to whom the s. 249 disqualification provision applied were those sentenced to imprisonment by a court following lawful conviction.

6 It becomes apparent, on consideration of the somewhat complex provisions of the 2005 Act and the 2007 Regulations, that, since most of the benefits are contributory and in the nature of a pension, that the class of person likely to be affected will be a person of such an age as to otherwise be entitled to receive such benefits, who has sufficient history of employment to accumulate such benefits, but who has nevertheless been found guilty of a crime of sufficient seriousness to require a significant jail sentence. In this case, the appellant was convicted on a number of counts relating to serious offences committed against a family member. He was sentenced to a lengthy term of imprisonment, and his anticipated release date is in 2020.

7 The appellant challenged the provisions on a number of grounds, but significantly for present purposes, the court did not hold for the appellant on the wider grounds asserted, but rather determined that the effect of the narrowing of the disqualification by the 2007 Regulations was to render the disqualification a further punishment for a criminal offence. This, the court concluded, was an interference with the administration of justice, since the process of trial, adjudication and sentence are integral aspects of the administration of justice in criminal matters, consigned by the Constitution to the courts, and which cannot be conferred upon any other body. It followed from this reasoning that if the disqualification had not been limited to persons convicted, but if, for example, it included other persons lawfully detained by the State, and whose accommodation and upkeep was therefore paid for by the State, or if the disqualification was imposed by the court at the sentencing stage rather than by statute, then such provisions might pass constitutional muster. On this reasoning, there was nothing per se offensive to the Constitution in the State excluding payment of (at least some) benefit to a person whose detention was provided for by statute, and equally nothing offensive in the idea that in the case of persons convicted and sentenced to imprisonment, such an order could in an appropriate case be made by a sentencing court. Furthermore, since the unconstitutionality identified was located in the interaction of the regulations and the statute, questions necessarily arose as to how any determination of the inconsistency of the resulting situation with the Constitution could or should be remedied. For these reasons and others, it was understandable that the court adopted the course of adjourning consideration of the appropriate order to be made.

Submissions of the parties
8 This court has now had the benefit of detailed submissions by the parties as to the appropriate orders to be made. Full submissions have addressed the jurisdiction to suspend any declaration of invalidity, or to make a determination of inconsistency with the Constitution, but adjourn the making of a declaration of invalidity. It is useful, therefore, to address that question first.

9 The appellant's starting position is that, although the catalyst for the finding of unconstitutionality is to be found in the terms of the 2007 Regulations, there is no basis for declaring invalid only those portions of the regulations which limited the statutory disqualification. That would be to penalise persons not before the court and who had never had the opportunity of addressing argument on the issue. The focus of the case before the court should be on the provisions of s. 249(1), or more precisely that portion which imposed a disqualification in the case of imprisonment on conviction. Whatever its effect when enacted, it now applied only to convicted persons, and once that was acknowledged, the court should proceed immediately to declare the section invalid, or at least make a declaration of invalidity in respect of that portion applicable to imprisonment, since no issue arose in this case in relation to disqualification where a person was outside the State. The appellant also says that it follows, then, that he is entitled to receive damages including, but not limited to, the amount of the pension unpaid.

10 The appellant points out that the Constitution says nothing about suspending declarations of invalidity. Insomuch as the Constitution addresses the consequences of any judicial finding of invalidity, it does so in the terms of Article 15.4, which provides in the first place a prohibition on the enactment by the Oireachtas of any legislation which is in any respect repugnant to the Constitution. Article 15.4.2 then provides:

      "Every law enacted by the Oireachtas which is in any respect repugnant to this Constitution or to any provision thereof, shall, but to the extent only of such repugnancy, be invalid."
11 The appellant accepts that techniques for suspending a declaration of invalidity have been adopted in other jurisdictions such as South Africa and Canada. In the case of South Africa, the power is expressly conferred by the Constitution itself. While there is no such express provision in the Canadian Charter of Rights and Freedoms, the appellant argues that the constitutional order in that jurisdiction is so different from that obtaining here that it cannot be a guide for an Irish jurisprudence. Instead, it is said that the Irish courts have always adopted the simple and, I think it is implied, principled clarity of the immediate declaration of invalidity, and that there was no reason to depart from that position. On this view, s. 249(1)(b) was invalid, and indeed ought to have been declared invalid as of 27 July 2017, and should in any event be immediately declared invalid.

12 I agree that this matter must be approached as a matter of interpretation of the Irish Constitution. Nevertheless, the Canadian experience in particular is useful in identifying the type of cases in which it has been thought, at least in that jurisdiction and others, to give rise to a type of problem where an immediate declaration of invalidity would cause substantial difficulty. Some of the issues were reviewed in Schachter v. Canada [1992] 2 S.C.R. 679. There, a male parent who intended to stay at home to care for his new-born child contended that legislation unlawfully discriminated against him in that it only permitted maternity leave payments to be made available to a mother, while at the same time a similar benefit was available (under a separate and later statutory provision) to adoptive parents on a gender neutral basis. In that case, the leave could be shared between the parties as they saw fit. This raised a problem which is often encountered in equality claims, and in particular those in which it is suggested that the constitutional infirmity lies not in the specific provision, or the grant of a benefit granted by it, but rather by the fact that it is under-inclusive, in that the benefit does not extend to all the people who are similarly situated and who therefore as a matter of equality should be entitled to it. However, to merely strike down the provision would not benefit the excluded persons, but rather would penalise the persons who already received and were entitled to receive the benefit. A variant of this issue arises in this case in relation to the argument that the provisions of the 2007 Regulations, which reduced the scope of the statutory disqualification, should be struck down, as opposed to striking down the disqualification contained in the 2005 Act. This would broaden the disqualification outside the case of convicted prisoners, and thus arguably remove the source of the unconstitutionality identified, but at the price of disqualifying persons who hitherto had been entitled to receive social welfare, which is, to say the least, an unattractive outcome. In Schachter , a similar problem could be identified: if the statute was struck down, then no natural parents would be entitled to maternity benefit. Hence, it became necessary to consider whether that was the only possible order a court could make in the light of its findings that the failure to extend the benefit to natural fathers was incompatible with the Charter.

13 The Supreme Court of Canada held that it could not declare that natural parents were entitled to benefit on the same basis as adoptive parents. That would be to encroach on the sphere of the legislature and to do something that the legislature could have done but did not do. The only remedy available was to declare the invalidity of the provision. However, the majority of the court considered that the court was entitled to suspend that declaration of invalidity to allow parliament to amend the legislation in a manner consistent with the obligations of the Charter as interpreted by the court. It is important to recognise that this suspension of the declaration had the effect of allowing a situation, determined to be incompatible with the Charter, to continue and to have effect for a limited time. Natural parents could only obtain maternity benefits for the female partner. In effect, it was considered that that situation, determined by the court to be inconsistent with the Charter, was preferable in the short term to wholesale removal of benefits from parties entitled to it, even though such removal, though brutal, would not be inconsistent with the Charter obligation of equality. All natural parents would be treated equally, though equally badly. In deciding instead to suspend the declaration of incompatibility, the Canadian Supreme Court was extending a technique adopted in previous cases where the striking down of the provision posed a potential danger to the public. One example given has resonances in recent Irish litigation. In R v. Swain [1991] 1 S.C.R. 933, the court struck down provisions for the automatic detention of a person acquitted by reason of insanity because of the failure to provide for some sort of hearing for consideration of whether such detention was necessary in any individual case. However, to have removed the only statutory provision permitting detention of all individuals found not guilty by reason of insanity would have posed a clear danger to the public. Accordingly, the court suspended the declaration of invalidity to permit remedial legislation. A further category in which this technique had been considered applicable was where the striking down of the legislation would pose a threat to the rule of law. Here, reference was made to the decision in Re Manitoba Language Rights [1985] 1 S.C.R. 721. In that case, it had been found that the failure to translate legislation in Manitoba into French was a breach of the Manitoba Act 1870, and, furthermore, that such breach meant that no such legislation was in force and effect. Faced with the prospect that the logical consequence of the determination was to render all legislation enacted in this way ineffective, the court made a declaration of invalidity, but suspended it and allowed a quite generous period of time to remedy the issue.

14 These categories are not fixed, and the jurisprudence has developed. There are other circumstances in which the Canadian court will make a suspended declaration. As discussed in the judgment of MacMenamin J., the technique as applied in Canada is now arguably the norm rather than the exception. It is noted in Hogg, Constitutional Law of Canada, Vol. 2 (5th edn., Carswell, 2007) at p.187 that, "while s. 52(1) [of the Constitution Act 1982] requires a court to hold that an unconstitutional statute is invalid, the courts have assumed the power to postpone the operation of a declaration of invalidity. When a court exercises this power, the effect is to grant a period of temporary validity to an unconstitutional statute, because the statute will remain in force until the expiry of the period of postponement". However, Hogg notes that the law has developed beyond the category of cases contemplated in Schachter v. Canada [1992] 2 S.C.R. 679 to a more general position of ‘dialogue' in which the court prefers the legislature to design an appropriate remedy. It is observed however "this is not an abdication of responsibility by the court, because if the legislature chooses to take no action during the period of suspension, the court's declaration of invalidity will take effect. But the period of suspension gives to the legislature the first opportunity to remedy the constitutional wrong". It is not necessary to consider whether such a development would be possible or desirable in the Irish context. What is involved in this case, while perhaps relatively uncharted territory in this jurisdiction, is minimal in comparison to developments in other jurisdictions, the merits of which in an Irish context would require much thought. These cases are enough however to illustrate the problem to which the suspended declaration is addressed, and which are replicated in other jurisdictions with a system of judicial review of legislation. They are all examples of pressing situations where there were strong countervailing considerations, and where the grant of a declaration with immediate effect would cause a very serious problem, which might be considered to be more damaging, at least in the short term, than the unconstitutionality identified.

15 Even more extreme circumstances could be envisaged and have arisen in other jurisdictions. One example is where the flaw relates to the election, or legal constitution, of a legislature, and where immediate invalidity might be simply incapable of remedy, or worse, might remove the only mechanism for remedying the flaw. But the fact that the solution proposed, of suspending the declaration of unconstitutionality in such circumstances in other jurisdictions seems reasonable and sensible, even necessary, does not mean it is constitutionally permissible under the Irish Constitution. Indeed, it is argued here that what is sensible and reasonable must give way to principle, no matter how inconvenient the result. It would not be fair to dismiss this argument as merely a narrow and inflexible absolutism. Part of the appeal of constitutional guarantees of rights is the belief that they contain enduring truths which cannot and should not be compromised. This is indeed a familiar argument for the rule of law: justice must be done whatever the consequences. But that in turn only leads to a deeper question as to what the doing of justice entails. This may be a particularly troublesome question where the issue involves not just the resolution of litigation between the parties but where the outcome may directly affect many others not before the court.

16 It is interesting, if no more, that the terms of s. 52 of the Canadian Constitution Act 1982 bear resemblance to Article 15.4.2 of the Constitution, although Art 15.4.2 is, if anything, in stronger terms. Section 52(1) provides:-

      "The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect."
It is apparent that the Canadian courts have interpreted this provision as authorising the making of suspended declarations in particular cases. However, it cannot be asserted that the text of s. 52 leads inevitably to the conclusion that the courts of Canada had a jurisdiction to suspend a declaration of invalidity, and still less does it follow that Article 15.4.2 must be read to lead to the same result. It is clear that there is scope for differing approaches, and the issue must be approached by reference to principle, the terms of the Constitution and the legal order which it establishes, and in that context with such assistance as may be gained from developments elsewhere.

17 N.H.V. v. Minister for Justice and Equality [2017] IESC 35, [2018] 1 I.R. 246 was itself an unusual case. The unconstitutionality identified in the judgment related not to a particular provision standing alone but to the interaction of two different statutory provisions, neither of which was per se offensive to the Constitution. Asylum seekers were prohibited from working while their case was being processed through the refugee system. There was no time limit on the asylum process for the determination of applications. Neither provision was itself necessarily offensive, but the combined effect was that the ban on work on asylum seekers was unlimited, and this, the court concluded, was inconsistent with the Constitution. It followed, from the reasoning of the court, that the unconstitutionality could be addressed either by imposing some qualification or limitation on the employment ban, or by maintaining an absolute ban while a case was in the asylum system, but limiting the period for that process. The incompatibility with the Constitution could be addressed in theory by removing one or other provision. While the court's jurisdiction was simply to make an order and to ensure that the aspect of the legislative machinery found inconsistent with the Constitution was removed, that could be done in a number of different ways. If, for example, the executive and legislative branches had decided to limit the period for processing refugee applications, it would not have been necessary to make a formal declaration of invalidity of legislation. There was therefore some logic, and it was arguably consistent with the separation of powers, to allow some time for the other branches of government to choose the method by which the law could be brought into conformity with the Constitution, since the underlying policy choice is not in principle a matter for the courts, but rather for the executive and legislative branches. Where two or more provisions of legislation, standing alone are unobjectionable, but which in combination exceed what is constitutionally permissible, it does not seem inappropriate, to allow the legislature the opportunity of choosing which provision should fall. It is of course a step further to allow an opportunity to amend one or other piece of legislation to bring the overall situation into conformity with the court's judgment. In a clear and simple case, this may be straightforward. The amendment may be obvious to all concerned. But it must be recognised that in more complex situations, there is a temptation for the legislative and executive branches to seek to put forward an amendment and seek the courts' approval of it. It is however not normally a function of the court, or any part of the litigation process, to address the compatibility with the Constitution of some new proposed piece of legislation (which has not been the subject of any challenge) and it may be that the appropriate course for a court to take in such circumstances is to adopt a default position that, unless it is demonstrable that the course adopted makes it unnecessary, the court should proceed to declare the provisions invalid, and to make a straightforward declaration to this effect.

18 It is apparent therefore, that to date the Court has acted cautiously in this regard and that N.H.V. v. Minister for Justice and Equality [2017] IESC 35, [2018] 1 I.R. 246 is not itself authority for more ambitious use of the technique. The presumptive approach is that other than in cases of references pursuant to Article 26, the manner in which courts exercise jurisdiction to ensure that legislation post enactment with the Constitution is compatible with it, is through inter partes litigation. It is for the appellant in the first place to identify the provision challenged, and for the court to determine in light of argument whether that challenge or any modification thereof is sustained. If the challenge is upheld, then the normal outcome will be the invalidation of the provision identified by the appellant and no more. This indeed was set out in the further ruling delivered by Clarke C.J., when the matter in N.H.V. returned to this court. In an ex tempore judgment on 30 November 2017, Clarke C.J. pointed out the exceptional nature of the adjournment and continued: -

      "Exceptionally the Court did not take the normal course of immediately declaring the relevant legislative provisions to be unconstitutional thus rendering them of no continuing legal effect. Rather, the Court in its judgment recognised that there were choices to be made as to how the difficulty which had been identified by the Court in its judgment was to be addressed and that at least the first port of call in making those choices rested with the legislature.

      3. It does have to be strongly emphasised that the general rule must be that, on finding a measure of legislation to be unconstitutional, the Court should immediately declare it to be so and thereby render it inoperative under the terms of the Constitution. While the Court has not as yet had the opportunity to consider in any detail the parameters of any exceptional circumstances which might allow the Court to depart from that general proposition, nonetheless it must be made clear that the circumstances in which it would be appropriate for the Court not to follow the general rule must necessarily be exceptional. The Court has identified this case as one in which such exceptional circumstances did arise.

      4. However, in the Court's view, there are significant limitations on the appropriate scope of further interaction between the Court and the parties. I appreciate that it has not been sought on the part of the State that the Court should involve itself in any approval or discussion as to the merits of the choices which the State has now made or the choices which were available to the State at the time when the Court gave judgment. But nonetheless, it is important to emphasise that the whole point of the affording of a period of time to the State was to allow the Legislature to make the decisions which it has to make. It must be emphasised the Court has no role in those matters."

In the circumstances, the court indicated simply that it would sit again on Friday 9 February 2018 to make the declaration of invalidity sought by the applicant, and in the event did so.

19 While therefore it is apparent that what occurred in N.H.V. v. Minister for Justice and Equality [2017] IESC 35, [2018] 1 I.R. 246 is at perhaps the furthest end of the spectrum from the type of suspended declaration and so-called constitutional dialogue contemplated by some authors and authorities, it nevertheless must be accepted that stripped to its essence, even the limited development in N.H.V. has some of the features of the suspended declaration which has given rise to legitimate questions of principle. This issue arises because constitutional litigation, while conducted inter partes , has effect erga omnes . As it happened, the plaintiff in N.H.V was no longer an asylum seeker by the time of the court's decision, and indeed had been employed, and accordingly a declaration of invalidity would have conferred no direct benefit upon the only plaintiff before the court. On the other hand, others in the system would have benefitted from an immediate declaration of invalidity. Therefore, those persons, some at least of whom could have asserted the unconstitutionality as successfully as N.H.V ., since their situation may have been just as extreme, and others, who although their personal situation would not necessarily have grounded a challenge, would nevertheless have benefitted from the invalidity of the legislative ban, were all deprived of that benefit by the fact that the court had adjourned the making of the order declaring the provision invalid. The statutory ban on employment remained in place for that period. The threshold question arises as to whether even this relatively minimal step is consistent with the Constitution. The appellant in this case asserts that it is not.

20 The language of Article 15.4.2 does not put the issue beyond doubt, but it does perhaps offer some guidance. While it requires the invalidity of any legislative provision found repugnant to the Constitution, it also seems to require that the remedy be precisely tailored to exercise the offending element and no more. Thus the provision may be invalid " but to the extent only of such repugnancy" (emphasis added). This is a clear direction to match the remedy to the wrong. Furthermore, the jurisdiction to determine repugnancy of post-1937 legislation and the inconsistency of legislation prior to that date is conferred upon the ordinary courts of law, and not for example on a special constitutional court or administrative body not necessarily composed of lawyers. The function of those ordinary courts is to administer justice, in most cases by litigation inter partes. The administration of justice between parties, is extended by the 1937 Constitution to matters of constitutional validity. Thus it is provided that the High Court, by Article 34.3.1 shall have "full and original jurisdiction" to determine all matters whether in law or fact, civil or criminal. By the following subsection, it is provided that jurisdiction "shall extend" to the question of the validity of any law having regard to the provisions of the Constitution. It follows therefore, that the Constitution contemplates that the issue of constitutional validity will be determined in the courts of justice and by implication, by reference to the procedures, techniques and approaches adopted over years in the administration of disputes, whether of private or public law. It is true therefore that the Constitution shall not expressly provide for the suspension of any declaration of invalidity, but in fact the Constitution says nothing about the making of a declaration, at all. A declaration is a discretionary relief in law or equity, the availability of which has been extended and adapted both by legislative and judicial developments: see for example the observations of Walsh J. in Transport Salaried Staff's Association v. CIE [1965] I.R. 180 at p. 202. While, therefore the Constitution by Article 34.3.2 does explicitly restrict to the Superior Courts the jurisdiction in constitutional challenges to validity of legislation, it says nothing about the proceedings in which such challenges may be mounted or about the rules for such proceedings, whether general or specific, such as the principles relating to the establishment of locus standi , mootness, the rule of double construction, or the approach that requires the court to resolve a constitutional issue last. All of these matters, and others, are features of the administration of justice, and developments which have been made incrementally, sometimes with the benefits of considering developments in other jurisdictions. Human experience throws up an endless variety of situations, and not all of them can be expected to arise for the first time in this jurisdiction. It is, however, not unknown for the discretionary remedies in equity to be tailored to the specific circumstances to ensure that justice is done in the particular case, sometimes by reference to the rights and interests of parties not before the court. This, in principle, can apply with greater effect, when in inter partes litigation, an order is sought with the effect erga omnes , rendering invalid a piece of legislation of general application. Sometimes a breach of a private law right is established but an injunction is withheld. In other cases, the making of a final order may be adjourned for a period to allow arrangements to be made to avoid an unduly harsh outcome. I see no reason why in an appropriate case, where justice requires a measured response, and a step such as adjournment of a final order, which is available to the court, that such a step could be regarded as impermissible in constitutional matters alone. An analogy can perhaps be drawn with the treatment of illness and disease. There are many conditions which are terminal, or which can only be dealt with by radical amputation, but that is no reason to refuse to consider surgery, or less invasive therapies if appropriate. If the legal problem is complex, there is no reason why the remedy should not be nuanced. If that is the position in private law, it cannot be excluded in public law, where the issues may be more difficult and the consequences more far-reaching.

21 The objection that flexibility of a remedy in constitutional challenges offends against principle therefore, is not in my view persuasive. Experience of litigation and disputes more generally, suggests that some cases may not provide the clear cut innocent victim/malicious wrongdoer narrative, more regularly encountered in popular entertainment. More realistically, the system of administration of justice goes to some length to seek to remove unnecessary issues and isolate clear cut issues to which definitive answers can be given. Justice permits, and indeed may require, that a very clear cut decision be rendered in such cases. But it would be foolish not to recognise that there are many situations where the issues require complex and measured solutions. The reason natural justice requires adherence to the rule of audi alteram partem is not procedural formalism: it is because often the other side will have something to be said in their favour, which must be heard, considered, and factored into the decision. Justice is traditionally represented as bearing scales, suggesting that justice is both balanced and measured. I recognise that the force of the argument that the suspension of a declaration of invalidity has the effect of permitting a situation of unconstitutionality, identified and determined by the only body empowered to do so, to continue and have effect. But the fact that litigation determined inter partes has effect erga omnes may mean that the court should take all such matters into account. The system established by the Constitution, as judicially interpreted, is a balanced one, which recognises other values as well as the identification of legislation in some respect repugnant to, or inconsistent with, the Constitution. Thus for example, a provision may be in theory unconstitutional, but if not challenged in a properly constituted proceedings by a party entitled to do so, and before a court vested with the jurisdiction in that regard, a court, although established under the Constitution and bound to uphold it, is not empowered to do anything about it no matter how patent the unconstitutionality. The rules of locus standi , and the requirement to reach constitutional issues last, and to a lesser extent, the double construction rule, all necessarily involve the judgment that the striking down of an unconstitutional provision must be balanced against, and sometimes outweighed by, other countervailing factors. The obligation to render invalid any offending provision of legislation, which is determined to be repugnant to or inconsistent with the Constitution is, a function of the highest importance. As emphasised by Clarke C.J. in the ruling in N.H.V ., the normal remedy when unconstitutionality is identified would be the consequential declaration of invalidity of the provision with immediate effect, and that is the position from which the court should be slow to depart, and against which any other remedy should be measured and justified. But I see no justification for an a priori rule that this is the only remedy available. In this regard, I agree with the observations of MacMenamin J. The precise circumstances in which it is appropriate to make any other order, and in particular to suspend a declaration of invalidity, is however, a matter to be considered carefully, cautiously, and on a case by case basis, and will be exceptional. I would, however, reject the argument that it is in principle impermissible for a court to make any other order other than one of an immediate declaration of invalidity.

22 However, it becomes apparent that this discussion is somewhat beside the point in this case, although, as it transpires, it is a useful entry point for analysis of the issue which is to be determined here. The problem in this case, if there is one, will not be addressed by deferring the determination of invalidity: no legislation taking effect prospectively can now address the fact that while imprisoned the appellant was disqualified from receiving benefit in circumstances which offended the Constitution, because of the effective limitation of the provision to convicted persons, and where the application of that disqualification was not a component of a sentence imposed by the court, with jurisdiction to try and sentence him. The problem, latent in this case, is, however, the closely related question of the impact of any declaration of invalidity (whenever that might be made) on the disqualification from benefit of the appellant pursuant to the invalidated section while it was in force.

The provision to be declared invalid
23 Before addressing that question, it is necessary to address an argument raised as to the nature of the declaration to be made, and in particular whether the declaration of invalidity should be made in relation to s. 249(1)(b) or that portion thereof relating to imprisonment, or alternatively, a declaration of invalidity of those parts of the 2007 Regulations which had the effect of reducing the scope of the disqualification established by s. 249 to convicted persons, or those broadly subject to detention as a result of a verdict in respect of a criminal trial. If I was persuaded that the court had no option but make a declaration of invalidity operating in an indiscriminate fashion as contended for, so that the fairness of the constitutional process was to be found only in the fact that a remedy operated randomly and indiscriminately, I would have given serious consideration to this question, or at least to the question of whether, if the appellant had been unwilling to challenge the primary source of unconstitutionality, a court would be justified in refusing a declaration of invalidity of provisions, the constitutional frailty of which flowed only from provisions which the appellant had not challenged. However, taking the view I do of the flexibility of the approach which is available to the court, I consider it is appropriate in this case to make a declaration of invalidity of that portion of s. 249(1)(b) which disqualifies the appellant and persons in the same position from benefits while serving a lawful term of imprisonment in respect of a sentence imposed upon them, having regard to Articles 34 and 38.1 of the Constitution. This is the provision challenged by the appellant in these proceedings. Having succeeded in his argument, the most appropriate remedy for the appellant should be the declaration of invalidity of the particular subsection which applies to him.

Damages
24 The next issue, however, is what follows from such a declaration. The appellant seemed to assume that it necessarily follows that he is entitled to damages as an inevitable consequence of the making of a declaration of invalidity. But that raises a very important issue. Damages are normally available for a civil wrong. Certainly the violation, by agents of the State, or persons for whom the State is responsible, of the personal rights of the citizens, such as bodily integrity, privacy or otherwise, will give rise to and has given rise to actions for damages. But here, it is not asserted that there is a fundamental right involved. There is no personal right to the passage by the Oireachtas of legislation which may later be found unconstitutional by a future court. It may be said to be the entitlement of every citizen (having standing to do so) to challenge legislation, but that does not mean that the passage of such legislation, without more, gives rise to an actionable claim for damages.

25 As a matter of historical fact, the declaration of invalidity has not normally led, without more, to an award of damages. To take only a few examples, the well-known case of Blake v. Attorney General [1982] IR 117, discussed in the judgment of MacMenamin J., resulted in the striking down of parts II and IV of the Rent Restrictions Act 1960. However, owners of properties affected by the legislation, and whose rights it breached, did not thereby, or at all, obtain an entitlement to award of damages for the loss, which ex hypothesi they had suffered. Other examples are the landmark decisions in McGee v. Attorney General [1974] IR 284 and De Burca v. Attorney General [1976] I.R. 38. Mrs McGee and many other citizens were adversely affected by the prohibition on importation of contraceptives and many others were convicted by juries composed in accordance with the Juries Act 1927, but no one obtained damages. This issue was helpfully discussed in the judgment of Budd J. in An Blascaod Mór Teo. v. Commissioner of Public Works (No. 4) [2000] 3 IR 565. There, the High Court held that the provisions of An Blascaod Mór National Historic Park Act 1989 were unconstitutional, and this conclusion was upheld by the Supreme Court. Thereafter, the plaintiffs claimed consequential damages. Budd J. held that the passage of legislation subsequently found invalid, without more, did not amount to the tort of misfeasance of public office, and although the Oireachtas could not be given absolute immunity from claim, there were valid public policy reasons why damages did not automatically flow from a finding of invalidity. Thus, at p. 581 of the report, he said:-

      "There is therefore little justification for a regime of strict liability for infringement of a constitutional right where such rights are competing and in conflict. In such circumstances "ubi ius, ibi remedium" is too simple a formula and strict liability would in many cases be too low and easy a threshold to reach."
At pp. 583 to 584 he considered the closely related question of the liability of a Minister for an invalid administrative action, and quoted the judgment of Henchy J. in Pine Valley Developments v. Minister for the Environment [1987] I.R. 23:-
      "I consider that the exemption of the State from liability in damages for the Minister's invalid planning permission is not alone not an unconstitutionality but is in harmony with the due operation of the organs of government established under the Constitution".
Budd J. concluded:-
      "If the Minister enjoys a quasi-immunity in respect of administrative acts, it seems that only in exceptional circumstances could the State be made liable for damages in respect of invalid legislation where the legislature is involved in the balancing of the protection of the right of private property against other obligations arising from the common good."
26 The discussion was comprehensive, and I cannot therefore treat that case as decided solely on the grounds that damages were not shown to flow directly from the legislation. In any event the matter is one for this court, and I find the reasoning helpful. The position tentatively arrived at in that case was observed to be consistent with the approach of the law of the European Union. Interestingly, although not cited in that case, the same conclusion was arrived at in Canada. Thus, in Schachter v. Canada [1992] 2 S.C.R 679 at p.720, Lamer C.J. concluded that:-
      "An individual remedy under s.24(1) of the Charter [which established and permitted a personal claim for damages] will rarely be available in conjunction with action under s.52 of the Constitution Act, 1982. Ordinarily, where a provision is declared unconstitutional and immediately struck down pursuant to s.52, that will be the end of the matter."
As the formulation in both the Irish and Canadian cases suggest, this is a general rule, but it is not necessary here to consider the circumstances in which a court may depart from it. I am satisfied that the general principle that the mere finding of unconstitutionality does not give rise per se to a claim for damages, is applicable here, and accordingly the appellant's claim for damages, made on that basis, must fail. It should be noted that the High Court did award nominal damages arising from a finding of unconstitutionality in Redmond v. Minister for Environment (No.2) [2006] 3 I.R. 1, but that decision was not considered by the Supreme Court, which dismissed an appeal in limine , and I would not regard it as setting a standard of an automatic entitlement to damages. Indeed, as set out above, I consider the opposite to be the rule, albeit subject to possible exceptions. Since the principle is a general one, it follows that there may be circumstances in which a court can consider that justice requires that the interests affected can only be properly weighed, and any wrong remedied, by the award of damages. I do not think it useful to speculate on the circumstances in which an award of damages might be made, since that issue was not canvassed in argument, and the facts giving rise to such a situation may be diverse. It is sufficient to record that the argument advanced was that damages arose automatically on a finding of invalidity, a contention which I consider erroneous. My conclusion that damages should not be awarded might be enough to resolve this case, since the appellant's claim was for damages consequent upon the alleged invalidity, without more. In this respect, I agree with the judgment of my colleague MacMenamin J. However, in the course of argument, other possible bases for a claim were canvassed, and in the interests of completeness it is necessary to address them.

Claim to the statutory benefit
27 A related contention, canvassed in argument, is that while the declaration of invalidity to be made by this court does not itself give rise to a claim for damages, nevertheless the consequence of the declaration is to remove what was the only legislative prohibition on receipt of the benefit. The argument is that the structure of the 2005 Act is to confer a general benefit on members of the population who can satisfy certain criteria of age, employment, marital status or illness. The appellant in this case comes within the relevant group but was disqualified by the provisions of s. 249(1)(b), now however declared invalid and of no effect. Therefore, it is suggested that the appellant should be entitled to recover the sum, not as damages but rather as benefit to which he was entitled, and which was wrongly withheld from him, the only justification for such disqualification now having been removed. In terms of pleadings, this might involve the appellant claiming an entitlement to a benefit, the Minister defending that refusal of benefit by reference to s. 249(1)(b), and the appellant in reply asserting the invalidity of the provision. The outcome of the case, on this argument, would be that the appellant would become entitled to recover the benefits which had not been paid.

28 It is not, I think, unduly punctilious to point out that the case was not pleaded, or put, in this way. Instead, the appellant simply claimed consequential damages, to which, for the reasons and on the authority set out above, I consider they have no entitlement. In the circumstances of this case, and the blunt and absolutist basis of the appellant's claim, it would not perhaps be unjust to dismiss the appellant's claim for damages as pleaded, and leave any possible claim to entitlement to benefit to be explored, if at all, in further proceedings by the appellant, and any other person. However, the matter has been addressed in argument, and given the rather torturous course this litigation has taken, it is desirable the matter be resolved, if possible. The argument is closely related to the issues which have been debated at length. In any event the question of an entitlement to a person, disqualified from benefit pursuant to s.249(1)(b), is a matter which would inevitably come before this court, and is, moreover, not dependent on evidence of further argument. There will be a proliferation of claims, and the likelihood of confusion if there is a protracted period before the issue would be definitively resolved. Considerations of efficiency therefore suggest it should be addressed now.

29 I observe immediately that this type of claim is dependent on the quirk of the drafting technique adopted where legislation is found to be under-inclusive in that the capacity to obtain the benefit may depend on how the legislature, and more realistically the drafter, approached the legislation. Legislation may be framed as a general entitlement subject to a limitation subsequently impugned (everyone except X), but may just as readily have been drafted by conferring the benefit positively on only those intended to benefit (only those who are not X). In mathematical terms, 6 minus three produces the same result as 2 plus 1, but on this approach to invalidity, one outcome could be 6 (the limitation being struck down) or 0 if the entire provision falls, although the calculations produce the same result and the added factor (invalidity for excluding X) is common. There are those who say that such randomness of outcome is simply a by-product of the nature of the judicial function, and the limitations on it, but it is at a minimum a noteworthy feature of this area of law and perhaps a reason to be flexible in its application.

30 The question of the theoretical justification of suspending any declaration of invalidity is a useful introduction to this issue because the argument made against the suspended declaration is very similar to that advanced in favour of the determination of entitlement to benefit. It is argued that the declaration of invalidity means invalidity ab initio , that is, in this case, from the date of enactment, or in the case of pre -1937 legislation, from the period of coming into force of the Constitution. As a matter of law, therefore, it is argued that the particular provision, however well-established and acted upon, and irrespective of the nature of the invalidity, whether serious or more minor, must be treated as if it never existed, and as if on the making of the declaration of invalidity, the provisions somehow magically disappeared from the statute book. This, indeed, was the view articulated in the 19th century in the US by Field J. In Norton v. Shelby County (1886) 118 U.S. 425 at p. 426, he said:-

      "An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection, it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed."
This approach has the undoubted virtue of clarity and indeed simplicity. But as Einstein is said to have observed, everything should be made as simple as possible, but not simpler. This discussion can however be short-circuited somewhat, since the issue has been addressed in a series of important decisions of the Irish courts, which are not sought to be challenged in this case, and which accordingly set much of the background for the consideration of this case. In essence, it is clear that a declaration of invalidity operates as a matter of law to establish the nullity of the provision from the date of enactment or the passage of the Constitution, as appropriate. That however does not establish per se the invalidity of actions taken on foot of such legislation at any time before its invalidity was determined by the court. As Chief Justice Charles Evan Hughes said in Chicot County Drainage District v. Baxter State Bank (1940) 308 U.S. 371, at p. 374:-
      "The courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged decree. . . It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects, with respect to particular relations, individual and corporate, and particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are among the most difficult of those which have engaged the attention of courts, state and federal, and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified."
31 In a number of important cases, this court has held that while the general rule is that a declaration of invalidity will also render null and void actions taken on foot of the impugned provision, the declaration of invalidity did not always necessarily nullify transactions or steps taken or even convictions arrived at on the basis of, or pursuant to procedures established, by legislation subsequently declared invalid.

32 In theory, the issue could have arisen in those cases in which important provisions of electoral law were found to be repugnant to, or inconsistent with the Constitution. On the facts, the issue did not precisely arise in O'Donovan v. The Attorney General [1961] I.R. 114, and the issue does not appear to have been recognised in that case. It was adverted to in the case of McMahon v. The Attorney General [1972] I.R. 69, where it was determined that the system of voting established by legislation enacted in 1923 was inconsistent with the constitutional guarantee of secrecy of the ballot. One issue raised in the dissenting judgment was the fact that such a finding could raise an issue as to the validity of all elections and by-elections since 1923, and it might be said a further question arose as to the capacity of the Oireachtas, itself elected under the now invalid procedure, to enact any curing legislation (or indeed any other legislation). The issue was touched on in the majority judgment, where it was noted that the plaintiff had not argued that there was any consequential invalidity. However, this might be thought to be a less than comprehensive answer to a difficult problem which had arisen in other jurisdictions. Notably, in Germany, the Bundesverfassungsgericht held, in 1963, in a case that has close points of comparison to the issue in the almost contemporaneous decision in O'Donovan, that the 1949 Electoral Law "had become" unconstitutional because it no longer corresponded to up to date demographic figures. However, the Bundesverfassungsgericht refused to annul the 1961 election on the ground, considering that the unconstitutionality "was not so evident" as to invalidate the previous apportionment: see the Second Apportionment Case (1963) 16 BVerfGE 130. Later, the High Court of Australia had to confront the same problem in Western Australia v. Commonwealth (1975) 134 C.L.R. 201, where the legality of the dissolution of the Houses of Parliament was challenged and established, but the court concluded that, "what had happened now could not be undone". Previously, in Simpson v. Attorney General [1955] N.Z.L.R. 271, the New Zealand Court of Appeal had simply refused to set aside a parliamentary dissolution on grounds of "manifest public inconvenience".

33 The issue arose much more clearly in the landmark case of De Burca v. Attorney General [1976] I.R. 38. It was decided in that case that the provisions of the Juries Act 1927 were unconstitutional. It is important to recall that while the case is most often associated with the removal of the gender discrimination contained in that Act, the decision also invalidated the property qualification established by the Juries Act. The extent of the unconstitutionality identified was extensive, and it followed, therefore, that the incompatibility of any juries selected under that provision with what had been held to be the requirements of a trial in due course of law, was neither insignificant nor trivial. Did this, however, mean that any conviction recorded by juries empanelled since 1927 must be treated as invalid, and were relevant persons released from custody, and those who had served sentences compensated? The court in De Burca had to address this question, not because it was a consequential claim of the plaintiffs (who had yet to be tried) but because it was invoked by the defendant as a ground for resisting the challenge. The court gave different reasons for rejecting the argument. O'Higgins C.J. asserted bluntly that such a prospect would not be permitted, consistent with the "overriding requirements of an ordered society". Walsh J. offered the ingenious resolution that since no person who was disqualified from membership of a jury had sat on any jury, there was no constitutional infirmity in any subsequent conviction, while at the same time asserting that if the argument had not been rather fortuitously available, he would have preferred to follow the argument to its logical conclusion and invalidate all prior convictions, if that followed from the court's decision.

34 In State (Byrne) v. Frawley [1978] I.R. 326, one such conviction was challenged. The court rejected the challenge, but divided on the reasons. Henchy J. addressed the argument that no member of the jury in Byrne's case had been disqualified from participation and that therefore his conviction was not a consequential nullity. He considered that that argument was not persuasive, since the constitutional flaw identified in De Burca v. Attorney General [1976] I.R. 38 was not the presence of any such person on a jury but rather the fact that the jury would be drawn from a pool which was insufficiently representative of the population at large. Taking this approach, Henchy J. had then to address, in a very direct way, the claim that a consequence of the finding of invalidity in De Burca's case meant that the conviction of Byrne by a jury empanelled under the 1927 Act must be treated as a nullity. Henchy J. pointed out that the trial had been underway at the precise time the De Burca case had been decided, and was indeed adjourned to consider the position. The applicant had elected to proceed with the trial. This conduct he considered precluded him from now asserting any invalidity. Byrne's case presented particularly strong facts, but if the principle was limited to such facts, it would be of very little application. However, the court went on to observe that the same result would follow in any case, even if the trial and conviction occurred before the decision in De Burca was delivered. The case therefore established an important and more broad-ranging, principle. Although a person convicted must be able to challenge a conviction on the grounds of the unconstitutionality of the legislation creating the offence, or controlling the mode of trial, and if successful the conviction would be quashed. It did not follow that such a conclusion must be reached in all cases for all those affected, even those whose factual circumstances may be identical to those of the successful claimant. This was a far-reaching decision, the implications of which were not necessarily recognised at the time.

35 Although the decision that any person convicted by a jury empanelled under the 1927 Act could not challenge their conviction might now sit comfortably with the well-known decision of this court in A. v. Governor of Arbour Hill Prison [2006] IESC 45, [2006] 4 IR 88, that final convictions cannot be challenged on the basis of a subsequent determination of invalidity of a legislative provision, it is important to recognise it was not decided on that basis. Instead, it was treated as a case where the plaintiff was precluded from asserting, and could not benefit from, the invalidity even when such invalidity had already been established by the same court. It is notable that the proceedings in State (Byrne) v. Frawley [1978] I.R. 326 were State-side proceedings seeking an order of certiorari quashing the conviction, but that the conviction itself was separately under appeal. The decision of the court suggests emphatically, however, that if the point had been raised on the appeal, it would not have availed the applicant there either, even though the proceedings had not been concluded, and the conviction could not be treated as final, and thus falling within the principle established by A. v. Governor of Arbour Hill Prison . The decision of the Supreme Court in State (Byrne) v. Frawley is therefore clear authority that there is no absolute rule that once the constitutional invalidity of legislation is established, that all steps taken under it must be treated as a nullity.

36 The decision in A. v. Governor of Arbour Hill Prison [2006] IESC 45, [2006] 4 IR 88, discussed in more detail in the judgment of MacMenamin J., is a more elaborate treatment of the issue generally. That case established that even in the area of criminal law, the finding that a criminal offence, in that case created by the Criminal Law (Amendment) Act 1935, was inconsistent with the Constitution, did not mean that a person imprisoned on the basis of the conviction for that offence, could assert the nullity of the conviction, and claim release.

37 These cases are very important, since they establish beyond question that there is no automatic rule of consequential invalidity, and that certain matters, such as the finality of a conviction, or the failure to take a challenge, may preclude reliance on any invalidity subsequently established. However, both these cases occurred in the field of criminal law and involved attempts by a third party to claim the benefits of an invalidity established in other proceedings. Here, it is the appellant who has succeeded, and who claims for what he contends is consequential relief in the self- same proceedings, which are civil in nature. This, therefore raises slightly different issues.

38 The most relevant authority in this regard is Murphy v. Attorney General [1982] I.R. 241. It is well known that the decision of the Supreme Court in that case, upholding the decision of the High Court, was to the effect that the provisions of the Income Tax Act 1967, which required joint assessment of married couples, were repugnant to the Constitution. Subsequent to the decision, there was, unusually, a further comprehensive hearing on the consequences of that determination both for the plaintiffs, and for all other married couples in the State. The potential financial consequences for the State were obvious, and the uncertainty over the State's budgetary position justified the step of hearing argument on the question of the entitlement of the plaintiffs in that case, and more importantly all other married couples, to recover any excess tax paid under the provisions found invalid.

39 The State sought to argue that the court could adopt an approach adopted in some common law countries known as prospective overruling, where a court, in overruling an earlier precedent and thus changing the law governing a particular area, could determine the date from which the new law established by the decision could take effect. This is closely related to an approach adopted in some jurisdictions in public law matters of providing that any invalidity of legislation will only take effect as ex nunc (from the date of decision) rather than ex tunc , (from the date of the enactment or other provision found invalid). In simple terms, it would involve determination that any invalidity would be prospective only. O'Higgins C.J. was prepared to adopt this course. However, the majority of the court took a different view. In an extensive judgment, Henchy J. analysed the text of the Constitution in both official languages. First, he pointed out that the Irish Constitution contained an express jurisdiction under Article 34 to declare the invalidity of legislation. It was not something deduced from the Constitution or implied, as in other jurisdictions. He approached the issue firstly by considering the position in relation to pre-1937 legislation. Article 50 of the Constitution provided for the continuation and enforcement of the laws of Saorstát Éireann, "to the extent which they are not inconsistent with" the Constitution. It followed, he considered, that where inconsistency with the Constitution was established, the impugned legislation must be declared to have ceased to have effect on the coming into force of the Constitution. In a vivid phrase, he described such a declaration as a "judicial death certificate with a date of death stated as the date when the Constitution came into operation".

40 The next step in the reasoning was to consider the provisions of the Constitution dealing with post-1937 legislation, where such legislation was found to be repugnant to the Constitution. Henchy J. considered that the Constitution adopted the normal approach to an ultra vires Act by branding the enactment as invalid. Both in the consideration of authority and perhaps more importantly, consideration of the true nature of the constitutional limitation on the legislative power, an Act found repugnant to the Constitution was to be held to "be" (and not "become") invalid, ultra vires and therefore "void ab initio ". This conclusion was, he considered, reinforced by the Irish text, which referred to invalidity in Article 15.4 by using the term "gan bhail" which was to be rendered in English as "worthless, void or ineffective". Consequently, a statutory provision, once declared invalid, had invalidity attached from the date of enactment if post-1937, and from the date of the Constitution coming into force, if the statute predated it. He considered that it was not possible or permissible to seek to assert that such invalidity only attached as and from a particular date such as the date of delivery of judgment in a case. Furthermore, normally such a void Act would provide no legal justification for any acts done or left undone, or for transactions undertaken in pursuance of, and the person damnified by the operation of the invalid provision would normally be accorded by the courts all permitted and necessary redress.

41 This was a very clear rejection of the argument that the Irish Constitution permitted the court to make ex nunc declarations of invalidity in the same fashion as was permissible in the CJEU (see the Opinion of Advocate General Stix-Hackl of 17 March 2005, Banco Popolare di Cremona , C-475/03, EU:C:2005:183, paras. 135 to 150), and the European Court of Human Rights (see Marckx v. Belgium (App. No. 6833/74) (1979-80) 2 E.H.R.R. 330) and indeed other European jurisdictions (see, for example, Verstraelen, ‘The temporal limitation of judicial decisions: the need for flexibility versus the quest for uniformity' (2013) 14 German Law Journal 1687). That conclusion was not challenged in this case, and is well established. For that reason, I do not consider that the important considerations raised by MacMenamin J. can arise for determination in this case, but they will no doubt stimulate more thoughtful consideration of this difficult area. However, of greater importance for present purposes is that that clear conclusion did not lead to the plaintiffs, and any other taxpayer, becoming entitled to the repayment of monies which they had been required by law to pay under a provision now determined to be invalid.

42 The invalidity of the legislative provision did not automatically lead to the invalidity of all acts and steps taken on foot of it. "There may be transcendent considerations which make such a course undesirable impractical or impossible" and it might be added, unjust. Taking examples from the field of civil law where cases are overruled, but actions taken on foot of an earlier decision are not set aside, and from the areas of estoppel and acquiescence, Henchy J. pointed out, that the law did not always require the setting aside of steps taken on the basis of a provision subsequently held to be invalid or otherwise ineffective:-

      "For a variety of reasons, the law recognizes that in certain circumstances, no matter how unfounded in law certain conduct may have been, no matter how unwarranted its operation in a particular case, what has happened has happened and cannot, or should not, be undone. The irreversible progressions and bye-products of time, the compulsion of public order and of the common good, the aversion of the law from giving a hearing to those who have slept on their rights, the quality of legality - even irreversibility - that tends to attach to what has become inveterate or has been widely accepted or acted upon, the recognition that even in the short term the accomplished fact may sometimes acquire an inviolable sacredness, these and other factors may convert what has been done under an unconstitutional, or otherwise void, law into an acceptable part of the corpus juris . This trend represents an inexorable process that is not peculiar to the law, for in a wide variety of other contexts it is either foolish or impossible to attempt to turn back the hands of the clock."
43 Murphy v. The Attorney General [1982] I.R. 241 was a case which addressed the tax collection function which was fundamental to the running of the State. The State's accounts are managed on an annual basis. Absent a challenge, the State was entitled to proceed on the basis that it could spend the money it collected. Even though the plaintiffs complained about the collection of taxes from them from the year 1976 onwards, it was held that they were only entitled to the recovery of taxes from the year 1978 to 1979, being the first year in which they had effectively objected to the flow of those taxes into the defendants' central funds by the issuance of a plenary summons:-
      "Up to that year the State was entitled, in the absence of any claim of unconstitutionality, to act on the assumption that the taxes in question were validly imposed, they were properly transmissible into the central fund, and that from there they were liable to be expended, according to the will of Parliament, for the multiplicity of purposes for which drawings are made on the central fund of the State. Equally, every taxpayer whose income tax was deducted from his earnings throughout a particular tax year, no matter how grudgingly or unwillingly he allowed the deductions to be made from his weekly or monthly income, could not avoid having imputed to him the knowledge that the tax he was paying was liable to be immediately spent by the State."
This meant that, in effect, the plaintiffs were entitled to a modest recoupment covering two years excess tax. But more importantly for present purposes, no other person was entitled to recover, or at least any person who had not issued proceedings:-
      "In the absence of special circumstances (which have not been shown to exist in this case), payment of PAYE taxes during the whole of a tax year, without instituting proceedings to have the taxes invalidated on the ground of unconstitutionality, should be held to defeat a claim made later to recover the taxes paid during that year."
44 It is important to recognise the breadth of this ruling. The practical result was that the invalidity identified as operating ex tunc took effect, so far as almost everyone was concerned, ex nunc . Although examples were drawn from the areas of civil law such as estoppel or acquiescence and laches, I agree with MacMenamin J. that the case cannot be seen as an application of purely private law principles. Instead I consider that the examples were used to support a broad principle applicable in the area of public law, and in particular of constitutional law. The doctrines of laches, acquiescence and estoppel, as encountered in private law, normally require knowledge of the potential claim, or positive conduct on the part of the party which makes it unfair to rely on what has been determined to be their legal rights, or both. In the case of a person paying tax, it could not be said that they had, or should have had, knowledge of an invalidity which had only later been established by proceedings. Furthermore, the limiting of the plaintiffs' claim to the period from the commencement of the proceedings is not determined by principle so much as the identification of a convenient point which appears to best balance the rights of the plaintiffs and in this case the State. Normally a person issuing proceedings is entitled to recover damages or receive an entitlement established in those proceedings, for the period prior to commencement of the process, subject only to any relevant provisions of the statute of limitations. The ‘transcendent considerations' identified in Murphy v. Attorney General [1982] I.R. 241, therefore, led to a broad conclusion that justice is served by declaring the invalidity of the provision, and both limiting the consequential recovery to the plaintiff, and, following the pattern of the decision in State (Byrne) v. Frawley [1978] I.R. 326, indicating that any claim seeking to piggyback upon the decision would be unlikely to succeed. I would add that I do not read these judgments as merely an invocation of some broad public policy considerations to avoid the inconvenience which otherwise might follow from invalidation. Instead, in my view these decisions reflect an important principle derived from the nature of public law adjudication through the medium of private litigation.

45 The further hearing and ruling in that case was prompted by the very substantial liability, coupled with the enormous administrative task, that would have ensued had it been held that all tax overpaid by all married couples in the State should be returned, subject only to any possible limitation under the statute of limitations, if applicable. But the decision should not be represented, or indeed misrepresented, as establishing a somewhat dubious principle that size is determinative and that in substantial cases the law will not insist on what is required in smaller claims. Instead, cases with far reaching consequences like Murphy v. Attorney General [1982] I.R. 241 can illustrate a difficulty which is more easily detected than in more modest claims: that is, that justice, both inter partes , and more importantly to all those who are affected by and bound by the outcome of the litigation, may require a more nuanced remedy. A blanket invalidity of all things done on foot of legislation, may be recognised as conferring an unjustified windfall on some parties, and imposing a corresponding unfair burden on others.

46 There are indeed other circumstances where blanket consequential invalidity might offend justice. Since the Constitution has endured for eighty years, and a broadly similar constitutional order has been in place for nearly one hundred, it has been recognised, that there can be instances of creeping unconstitutionality, that is where a provision unobjectionable when enacted becomes unconstitutional because of a substantial change in the underlying factual situation: see for example Brennan v. Attorney General [1983] I.L.R.M. 449 (H.C.), [1984] I.L.R.M. 355 (S.C.). A different situation, traces of which can be seen in this case, occurs when an Act is within constitutional limitations, but when combined with a later piece of legislation, itself also permissible, gives rise to a situation which can be determined to be inconsistent with the requirements of the Constitution. A further instance is where it is recognised that the understanding of constitutionally mandated requirements of fairness, equality, justice and other broad-textured constitutional guarantees may develop over time. For example and most clearly, it was recognised in State (Healy) v. Donoghue [1976] I.R. 325, and more recently in Carmody v. Minister for Justice, Equality and Law Reform [2009] IESC 71, [2010] 1 IR 635 that what was required in the nature of legal assistance to comply with the guarantee of a trial in due course of law under Article 38 has continually developed over time, and the nature of representation permissible in the early days of the constitutional order would not be considered sufficient in more modern times. It is not necessary to consider in any detail the idea of the Constitution as a living tree, to borrow the metaphor of Lord Sankey in Edwards v. Attorney General of Canada [1930] AC 124, with the significant qualification suggested by Lord Bingham in Brown v. Stott [2003] 1 A.C. 681 at p. 703. It is enough, I think, for these purposes, to repeat the observations of Walsh J. in McGee v. Attorney General [1974] IR 284 that the prevailing ideas of the constitutional virtues of prudence, justice and charity, by reference to which the Constitution should be interpreted, are conditioned by the passage of time, and that no interpretation of the Constitution is intended to be final for all time. The application of that observation in any given case recognises that what was done at certain times or circumstances was once consistent with the Constitution, but is no longer. It would border on the perverse to insist nevertheless that the invalidity of all actions done on foot of the impugned law should attach from the moment of enactment of that legislation, or the coming into force of the Constitution. A different situation may arise where a legislative provision is declared unconstitutional by the High Court in exercise of its jurisdiction under Article 34. The law is stated, and takes effect as of the date of that decision. It is the only guide to conduct and every person must act in accordance with it. What then is the position if it is overturned on appeal or indeed that appeal in turn reversed, or as discussed in Murphy v. Attorney General [1982] I.R. 241, binding authority is later overruled? It seems difficult to treat as a nullity, and perhaps a civil wrong, something done that was compelled by, or at least in accordance with, what was then the law. As Dr. David Kenny points out in ‘Grounding constitutional remedies in reality: the case for as-applied constitutional challenges in Ireland' (2014) 37(1) D.U.L.J. 53, there is a curious lack of symmetry between the development of rules limiting the nature and sweep of constitutional challenges, and the relative absence of any rules governing the consequences of any invalidity once identified. Yet the terms of Article 15.4.2 seem to permit, if not indeed require, that a remedy is measured precisely to fit the repugnancy identified, and no more. In the allied field of administrative law, the same idea is found in addressing questions of remedy. In the judgment of Clarke J. (as he then was) in Tristor v. Minister for Environment [2010] IEHC 454 (Unreported, High Court, Clarke J., 10 December 2010), an overriding principle was identified that any remedy in the field of civil litigation could and should attempt in as clinical a way as possible, to undo the consequences of any wrongful or invalid act, but not more. Repugnancy in the Constitution does not come in one standard size, and the remedy for it must be capable of recognising that once invalidity of the legislation is established, it remains a separate and difficult question as to the effect of that invalidity on actions done on faith of that law, or indeed in obedience to it, which, as O'Flaherty J. suggested in McDonnell v. Ireland [1998] 1 I.R. 134 at p. 143, is itself an obligation of all citizens:-

      "Members of society are given no discretion to disobey such law on the ground that it might later transpire that the law is invalid having regard to the provisions of the Constitution"
In my view, the administration of justice under the Constitution may require a court to recognise the wisdom of Hughes C.J.'s observation in Chicot County Drainage District v. Baxter State Bank (1940) 308 U.S. 371 that the actual existence of the statute is an operative fact, which may have consequences which cannot justly be ignored. The past cannot, and I would add should not, always be erased by a new judicial declaration.

Conclusion
47 Turning to this case in conclusion, it appears to bear some comparison with the facts of Murphy v. Attorney General [1982] I.R. 241: indeed, the payment of social welfare payments pursuant to the 2005 Act is the other side of the State's accounting process from the collection of taxes considered in Murphy . In one respect at least this case may present a stronger case for a limitation of the effect of a declaration of invalidity. The outcome of Murphy was that it was never permissible to insist upon a single assessment of married couples. Here, however, the decision of this court is not so clear cut. It seems conceivable that it would be entirely permissible to make at least some adjustment to the entitlement to social welfare of persons detained by the State and whose expenses are reduced by that fact, although not necessarily extending to the blanket removal effected by s. 249(1)(b). There was no time in which a person in the position of the appellant could contend that they were entitled to receive payments while imprisoned, nor was there any legislative judgment that the appellant was so entitled. Indeed, to treat the appellant and anyone in the same position as fully entitled to payments under the 2005 Act, would be to create a new form of legislative entitlement to benefit, and moreover one which not only was not approved by the Oireachtas but, moreover, plainly runs counter to the legislative intention. Just as the court will not sever a provision if the result will be to create legislation inconsistent with the legislative intention as apparent from the Act, the court should be slow to permit a declaration of invalidity to create by default a form of legislation of general application, which it is plain the Oireachtas would not have enacted, and which, moreover, would extend the financial burden on the State and its citizens without sanction of the Dáil. Furthermore, the theory of any claim in litigation is that a person is forced to bring proceedings because the defendant wrongfully withholds something which the plaintiff claims. The failure of the defendant to provide the benefit or pay the damages justifies the commencement of proceedings and the awarding of costs against the defendant. But here, the Minister for Social Welfare could never lawfully have paid the benefit to the appellant. The Minister was bound by the law to apply s. 249(1)(b) and had no entitlement to treat it as invalid or a nullity: that was solely within the jurisdiction of the Superior Courts pursuant to Article 34 of the Constitution. All of these factors point, in my view, to an obligation to fashion an appropriate remedy in this case, rather than adopt the general approach of consequential invalidity.

48 The invalidation of s. 249(1)(b) will require that the Oireachtas now address the question in a comprehensive, and, I hope, humane way, and produce an outcome consistent with the Constitution. That may yet yield benefits for prisoners and others detained by the State. In terms, however, of the recovery of benefits unpaid for the period while the 2005 Act, and more specifically s. 249(1) was in force, I would follow the broad approach in Murphy v. Attorney General [1982] I.R. 241, and would be prepared to hold that this appellant would be entitled to be paid benefits, but limited to a period approximating to the time taken in these proceedings. That must be subject of some rough estimation, since it cannot be that dilatory proceedings would increase the amount recovered. In fact he has already been paid a sum of €7,500 on account of damages by the State authorities. There has been no precise quantification of the amount of the claim made by the appellant under this heading by reference to the progress of the case. Taking a broad and admittedly unscientific approach, I would accordingly order that the appellant is entitled to receive €10,000, in this regard, €7,500 of which has already been paid. The fact that a claim was not intimated earlier means, as in Murphy , that the State was entitled to maintain its accounts on the assumption that the disqualification contained in s. 249 was valid and effective. No person who had not issued proceedings would be entitled to claim any entitlement. Where proceedings have been issued and not advanced, it will be necessary to consider carefully if any entitlement to any benefit is appropriate. However, that issue is not one which arises in this case.



Judgment of Mr. Justice John MacMenamin dated the 28th day of November, 2018


Introduction
1. In what is referred to hereafter as the "principal judgment", already delivered in this appeal [2017] IESC 63; [2017] 2 ILRM 369, the Court indicated that it would not make an immediate declaration concerning the constitutional invalidity of s.249(1) of the Social Welfare (Consolidation) Act, 2005 ("the 2005 Act"), and instead invited further submissions on the precise form such a declaration should take. This was a simple counsel of prudence, reflecting a course of action previously adopted in the recent judgment of this Court in NVH v. The Minister for Justice [2017] IESC 35; [2017] 1 ILRM 105 (O'Donnell J.). The statutory complexity said to arise in this case is described later in the judgment. Counsel for the parties have made comprehensive oral and written submissions for this part of the appeal. The Court is indebted to them for this assistance. Section 249(1)(b) addresses the disqualification of prisoners, the issue in this case.

2. This judgment makes a number of preliminary observations on the procedures involved in the appeal; examines the basis for deferred or suspended declarations of invalidity; makes some obiter observations as to the consequences of such a declaration on the issue of damages in the light of recent jurisprudence of this Court; identifies a wording of the declaration to be made in the case to give effect to the principal judgment; and, finally, addresses the issue of redress and damages sought by the appellant.

3. The various aspects of the law considered here are in varying rates of evolution. Thus, while this judgment contains observations in relation to the issues just mentioned, these are to be seen as arising insofar as material to this appeal. The time has not yet come when it is possible to say that the law is definitively settled. As always, it develops incrementally. There are substantial areas of agreement between this judgment and that delivered today by O'Donnell J.

Preliminary Observations
4. The Court has already held that s.249 is constitutionally flawed because it imposes an automatic punitive sanction on prisoners when such function lies only within the power of the judiciary under Articles 34 and 38.1 of the Constitution. What is in question here is, simply, "facial" invalidity, with the effect that upon a declaration being made, the section will be held to contravene Article 15.4.1 of the Constitution, which provides that the Oireachtas shall not enact any law which is, in any respect, repugnant to this Constitution or any provision thereof.

5. A number of features in the principal judgment require reiteration. First, the declaration to be made will not affect the validity of the custodial part of the appellant's sentence. That is not in question. Next, the principal judgment holds that ss. 108 and 109 of the Act of 2005 contain a simple legal entitlement, on foot of which, subject to compliance with certain statutory conditions, an eligible person may be entitled to the State Pension Contributory ("SPC"). Eligibility is contingent, therefore, upon the fulfilment of these statutory conditions. As the Court pointed out, the appellant does not hold any constitutionally cognisable property right in the pension. The appellant's interest in the pension is, therefore, limited in this way. The issues of redress, as aspects of in their private and public law, can only be considered in that context. Additionally, I would emphasise that the Court did not find that s.249 offended against the guarantee of equality before the law contained in Article 40.1 of the Constitution. The question of over-inclusivity, or under-inclusivity, did not arise in the case of this appellant - a sentenced prisoner. Finally, the principal judgment does not have regard in its ratio to s.249(1)(A) of the Act or the regulations made under the Act.

6. The legal principles discussed in this judgment give rise to a further, more general, observation. Amongst the values espoused in the Preamble to the Constitution are dignity, freedom of the individual and the attainment of "true social order". These are overarching constitutional values. The term "true social order" can, of course, be interpreted malignly, as having anti-libertarian connotations. But, it must always be understood in the context of the application of the rule of law which protects the citizen against abuse of State power. Insofar as it arises here, the value is to be seen as part of the primary function of the Constitution, that is, the attainment of a democratic social order. Each provision of the Constitution is to be read and applied harmoniously with all others. To decontextualise, or select one constitutional provision in isolation from all others, creates the risk of leading to a false conclusion or interpretation.

7. This judgment also touches on a further theme related to those just mentioned. A declaration of constitutional invalidity ab initio can have disruptive consequences on social order. What status or recognition is to be given to acts done in good faith, under a law subsequently invalidated? But the courts are under a duty to vindicate fundamental rights, where necessary by the invalidation of an unconstitutional provision. That will be what is called the "primary redress". The judgment considers the extent to which ab initio declarations of invalidity can be reconciled with the attainment of true social order. Invalidation of a provision ab initio accords with the obligations of the State under Article 40.3 of the Constitution to defend and vindicate the rights of citizens insofar as is " practicable ".

8. The judgment must look at the question of entitlement to redress, to be seen in the context of the declaration based on the conclusions in the principal judgment. Certain obiter observations are made in the context of developments in the law, the effect of which is that, in general, declarations of invalidity should be prospective, rather than retrospective.

9. Is the appellant entitled to an award of damages because the provision impugned here violates Articles 34 and 38.1 of the Constitution? To what extent, if at all, should qualified statutory entitlements of the appellant be vindicated where no personal constitutional right of the appellant was infringed? These all fall for consideration. First, it is necessary to make some observations on suspended or deferred declarations of invalidity.

Suspended or Deferred Declarations of Invalidity
10. Any consideration of how these two concepts of suspension and deferral have evolved must begin with the constitutional provisions which directly address validity in the context of the power of judicial review vested in the courts. Article 50.1 provides:

      "Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in Saorstát Éireann immediately prior to the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas."
But such laws do not enjoy a presumption of constitutionality. Article 15.4 of the Constitution of 1937, in turn, addresses legislation passed after the enactment of the Constitution, which enjoys a presumption of constitutionality. The validity of legislation may be challenged only in the Superior Courts (Article 34.3.2). When the validity of such legislation is tested, the analysis takes place in the context of the Constitution, seen as an entire text. As well as prohibiting the enactment of any law which is in any respect repugnant to the Constitution under Article 15.4.1, Article 15.4.2 provides:
      "Every law enacted by the Oireachtas which is in any respect repugnant to this Constitution or to any provision thereof, shall, but to the extent only of such repugnancy, be invalid."
This Article, section and paragraph is, like Article 50.1, phrased in the present tense. The precise text of those two Articles is relevant to the consideration of deferred and suspended declarations, as well as the question of retrospectivity. These are the constitutional boundary lines for the consideration of deferred and suspended declarations.

11. As provided under Article 25.4.1 of the Constitution, all extant legislation shall become and be law as and from the date of signature by the President, unless the contrary intention appears in that law. From the date of signature forward therefore, the legislation has the force of law. On judicial review of such law, the duty of the Court is not limited, but is qualified: it is to ascertain " the extent only of such repugnancy ".

Background to Deferral and Suspension of Declarations
12. Discussion of these two concepts may conveniently begin with the well-known decision of this Court in Byrne v. Ireland [1972] I.R. 241. In that decision, this Court held that the royal prerogative, previously thought to confer immunity on the State in actions in tort did not survive the enactment of the Constitution. But one unusual event in that case is not described in the Irish Reports. It can be established on unimpeachable testimony, as it is described in the judgment of Barrington J. in McDonnell v. Ireland [1998] I.R. 134. It will be remembered that it was Mr. Donal Barrington, S.C., who appeared as counsel for the successful plaintiff in Byrne .

13. During the appeal in Byrne , this Court, having determined it would reverse the High Court decision of Murnaghan J., expressed the preliminary view that the prerogative had not survived the enactment of the 1937 Constitution. The court offered to adjourn the appeal if counsel for the State would give an undertaking to introduce legislation regulating the citizen's right to sue the State. The court only proceeded to deliver its far-reaching judgment when no such undertaking was forthcoming. It is not unfair to describe the court's decision to adjourn in Byrne as, in effect, a form of "deferral" of a declaration on the principle of sovereign immunity, recognising that such an evolution in the law might have had the potential to adversely affect the social and legal order, as a result of the removal of the defence of State immunity.

14. In Blake v. The Attorney General [1982] IR 117 there were similar considerations. The Court held that Parts II and IV of the Rent Restrictions Act, 1960 were repugnant to the Constitution. But O'Higgins C.J. pointed out that a range of persons might primarily have relied upon the invalid legislation for protection of their tenancies. As a result of the declaration, such persons would no longer have this protection, thereby depriving them of rights they could previously have availed of in legal proceedings. Speaking for this Court the Chief Justice made clear that it was assumed that the matter would receive the immediate attention of the Oireachtas. But he also indicated what was to happen in relation to pending cases in which the invalid provisions might have provided a defence. Where justice required the courts were either to adjourn, or grant a decree for possession with such stay as might appear proper in the circumstances. This approach can also be seen as, in effect, imparting a suspensory effect to the declaration of invalidity. It was again informed by concerns regarding the social order of the State and its citizens. In Murphy v. Attorney General [1982] I.R. 241, the Court adopted a similar "phased" approach to the complex issues.

15. The two concepts of suspension and deferral, amongst others discussed later, came into clearer focus in the judgments of this Court in A v. Governor of Arbour Hill Prison [2006] IESC 45; [2006] 4 IR 88. As is well known, the appellant, A, pleaded guilty to unlawful carnal knowledge contrary to s.1(1) of the Criminal Law Amendment Act, 1935. He was sentenced to a term of imprisonment. Subsequent to his conviction and sentencing, this Court held in CC v. Ireland [2006] IESC 33; [2006] 4 I.R. 1 that s.1(1) of the 1935 Act was invalid, having regard to the Constitution. The declaration made by this Court in CC was phrased in the present tense, to the effect that s.1(1) is inconsistent with the terms of the Constitution. In the case, the appellant, A, successfully challenged his conviction in the High Court, claiming that he was detained under what the courts had held to be a constitutionally invalid provision. There was much public concern that other such convicted prisoners might be released. (For background, see Rossa Fanning, ‘Hard Case; Bad Law? The Supreme Court Decision in A. v The Governor of Arbour Hill Prison ' (2005) 40(1) The Irish Jurist 188, and the footnotes describing contemporary media coverage). The High Court judgment was appealed to this Court. For present purposes, it is necessary only to consider the important, albeit obiter , discussion on the issues of deferred and suspended declarations in one judgment in A .

16. Denham J. pointed out the obvious similarities in phraseology between Article 50.1 and Article 15.4.2 of the Constitution, quoted earlier, and the terms of s.52 of the Canadian Constitution Act, 1982. The 1982 Canadian Act provided that the 1982 Constitution was the supreme law of Canada, and that " any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect".

17. Denham J. outlined the development of Canadian jurisprudence on deferred and suspended declarations. The judgment made clear that, in this State, consideration of such declarations should only arise in extreme circumstances. But it described the rationale for a "suspended declaration" approach as being fundamental to, and derived from, the exercise of the constitutional power of judicial review, thereby facilitating the task of the Court in making decisions upon invalidity. I respectfully agree.

18. Of course, neither the Canadian provision, nor the subsequent jurisprudence, are precisely comparable to our own. The Canadian case law may not be legally persuasive in our courts. However, this judicial consideration, and later Canadian commentary, helps to illustrate the manner in which a not dissimilar jurisprudence developed in a way consistent with a modern democracy. (See, for comparison purposes, Ailbhe O'Neill, ‘Invalidity and Retrospectivity under the Irish and Canadian Constitutions' (2006) 15(13) Constitutional Forum constitutionnel 147). Some academic commentary is also addressed in O'Donnell J.'s judgment.

19. These developments, and the broader issue of constitutional remedies, have been considered in a series of illuminating essays and commentaries by eminent Irish scholars, both judicial and non-judicial. This ground-breaking work can fairly be described as part of a fruitful dialogue between the courts and the academy. This is a debt which should be acknowledged. As well as lighting the way, this writing contains a useful critique of some of the hazards in this form of declaration.

20. I turn to a brief outline of the manner in which the Canadian law developed. The seminal case is Schachter v. Canada [1992] 2 S.C.R. 679, where, on the facts of that discrimination case, Lamer C.J. at p.719(c)-(f) identified three situations where a suspended declaration should be used. These were, first, where an immediate invalidation would pose a danger to the public; where there might be a threat to the rule of law; or where unintended or broader declaration would deprive deserving individuals of benefits to which they were entitled. This might arise where a law was invalidated for being under-inclusive, or depriving others of benefits which should be theirs. (See more recently Carter and Ors v. Attorney General of Canada [2016] 1 R.C.S. 13).

21. Lamer C.J. identified arguments in favour as including that deferred or suspended declarations allow legislative complexities to be resolved; diminished the risk of unforeseen consequences; and served to eliminate or alleviate disruption of the social order consequent on declarations of invalidity. But, against this, as Lamer C.J. pointed out in Schachter , a delayed declaration can allow the persistence of a state of affairs which has been found to violate standards expressed in the Canadian Charter (At pp. 716(e) - 717(b)). He observed that Canadian jurisprudence allowed for "reading in" words to a statute. Such an interpretive process is not, of course, available in our courts. (At p. 716(h) - (i)). He mentioned the further objection that a delay in nullification in fact forced the matter back into the legislative domain at a time which was not of the legislature's choosing, and which set temporal limits which a legislature would not normally countenance. Thus, in that sense, such declarations could themselves be portrayed as an "interference" with a legislature, which normally might consider a difficult issue in its own time, and take whatever action it wished. (At pp. 717(e) - 718(j)). Ironically, in view of what happened subsequently, Lamer C.J. pointed out that such form of declarations should be deployed only sparingly. This is not what occurred.

22. Some Canadian academic commentary outlines other concerns. It is suggested that such declarations are a "weak form" judicial review, and that they "dilute" the rights of applicants. At a level of theory, it was suggested delaying a declaration does not entirely remove its retrospective effect, in the sense that, if legislation is later struck down, then the very act of deferral itself creates a degree of retrospection. (See Robert Leckey, ‘The Harms of Remedial Discretion' (2016) 14(3) International Journal of Constitutional Law 504). Professor Leckey wrote that while delayed declarations were initially an exception, they became the norm, or preferred form of remedy. They were made in a range of circumstances, such as challenges to benefit schemes, declarations regarding fundamental institutions of the State, such as marriage, and other areas where a complex intersection of rights might be readily foreseeable. (See Choudhry and Roach, ‘Putting the Past Behind Us? Prospective Judicial and Legislative Constitutional Remedies' (2003) 21 S.C.L.R. (2d) 205). There are divergent views in Canada as to how, in such declarations, the rights of individual litigants should be measured against the public interest in the maintenance of legal order. Much consideration is given to the question of the risks and benefits of constitutional dialogue.

An Observation Regarding Case Management in this Case
23. In fact, some of these Canadian concerns are not at all theoretical. What happened in case management after the "invalidity hearing", prior to the "remedies hearing", is proof of this. This appeal was divided into two parts. The first was the "invalidity" hearing, the second, a "remedies" hearing. Between the two hearings there were case management hearings, which show some of the hazards of such dialogue. Even when a court is receiving bona fide legal submissions as to remedy, separation of powers concerns can arise. The State may seek to describe the legislative responses in contemplation. A court of law will not always appreciate the extent to which the cogs and mill-wheels of government and legislature move at different rates. There may be multiple different interfaces with different offices and departments of State. Policy issues are considered; consultations take place; inter-departmental committees are formed, and various stakeholders express views on the form remedial legislation may take. Proposals for that legislation may come from sources entirely removed from a court situation. A proposed policy may not precisely, or at all, reflect the manner in which a court has addressed the nature of an invalidity issue in its judgment. There is a risk that in this courts might unwittingly be lured into being asked to consider intended remedial legislation when this is not the business of the courts.

24. There is, too, another hazard. While not on precisely the same point, experience in other common law jurisdictions has shown that incremental application of complex and far-reaching judicial decisions on constitutional issues can be interminable and take up much judicial time in lower courts. Thus, while there is much to be said in favour of the two concepts, one must be award of the hazards.

NVH v. The Minister for Justice
25. The judgment of this Court delivered in NVH , decided on the 30th May, 2017 (O'Donnell J.) mentions one of the strongest factors favouring the exceptional use of deferred declarations. The unanimous judgment held that, where there was no temporal limit on the asylum process, an absolute prohibition on asylum seekers seeking employment contained in s.94 of the Refugee Act, 1996, and largely re-enacted in s.16(3)(b) of the International Protection Act, 2015, infringed on the appellant's constitutional right to seek employment. The judgment went on to adjourn consideration of the order for six months, since the situation described arose due to the intersection of a number of statutory provisions, and could arguably be met by an alteration of someone or other of them. Such choices were primarily a matter for executive and legislative judgment. The Court invited counsel for the parties to make submissions in the form of the order, in the light of the circumstances by then pertaining. (At para. 21).

26. At the adjourned hearing six months later, Clarke C.J., speaking on behalf of this Court, explained in explicit terms that, exceptionally in that appeal, the Court had not taken the "normal course" of immediately declaring the relevant legislative provision to be unconstitutional, thereby rendering the provisions of no continuing legal effect. He observed that the Court recognised that there were legislative choices to be made as to how the issues might be addressed, and that the first "port of call" in making such choices rested with the legislature. ([2017] IESC 82, para. 2). However, Clarke C.J. went on to point out that it had to be " strongly emphasised " that the " general rule " must be that, in finding a legislative measure to be unconstitutional, the Court should immediately declare it to be so, thereby rendering it inoperative under the terms of the Constitution. He pointed out that the circumstances in which the Court would not follow this general rule would necessarily be exceptional, and that there should be " significant limitations " on the appropriate scope of further interaction between the Court and the parties following a finding of invalidity. Thus, he warned when giving judgment on remedy, the Court should not involve itself in any approval or discussion as to the merits of the choices which the State has to make, or the choices available. He emphasised that the Court has " no role in those matters ". The Court directed that the declaration of invalidity would take place from a date stipulated. The Court sat on that date, but purely for the purposes of making the declaration. The declaration in NVH was, therefore, first "deferred" and subsequently "suspended" until the operative date.

27. I mention also what might be characterised as an "admonitory" approach is to be found in Judge McMenamin v. Ireland [1996] 3 I.R. 100, where the Court found that reduction in the plaintiff's pension arrangements amounted to a breach of Article 35.5 of the Constitution, guaranteeing the remuneration of judges during their continuance in office. In that highly unusual circumstance involving separation of powers considerations, the Court declined to grant declaratory relief, instead expressing the view that, once the government had been made aware of the situation in respect of the constitutional injustice, it would take steps to remedy the matter without the need to make any further mandatory order.

28. In summary then, the courts have adopted a relatively flexible approach to declarations when questions of complexity of the social order arise. The power of deferral or suspension of a declaration of invalidity should be " exceptional ", not the rule. The approaches should not be permitted to evolve into being a rule of universal exceptionality. The courts, the legislature and the Executive, must each recognise that their powers and functions are separate, but operate differently under the Constitution. Declarations of these categories are to be seen as integral to the maintenance of overarching principles of legal and social order. In A.C. v Cork University Hospital and Ors. [2018] IECA 217, Hogan J., in the Court of Appeal, suspended a declaration concerning the constitutional validity of powers exercised by the HSE under mental health legislation, where the consequence of an immediate declaration might well be detrimental both to the rights and interests of the persons concerned and the social order generally.

The Consequence of a Declaration of Invalidity
29. Discussion may then move from the future form of some declarations to the past. It is necessary to consider the temporal scope of retrospectivity and retroactivity. A wide-ranging ab initio declaration of invalidity has the potential to cause disruption to social order. It could render void many acts and transactions back to the date of the enactment of the invalid provision. An erga omnes declaration, affecting all persons, can pose unforeseen threats.

30. There is undoubtedly room for argument that the provisions of the Constitution might permit findings of "as applied" declarations of invalidity confined to particular persons or situations.

31. The difficulties with retrospectivity and retroactivity are not confined to any one State, even those without a written constitution. (See Cadder v. Her Majesty's Advocate [2010] UKSC 43, in the immediately neighbouring jurisdiction). But brief consideration of two cases drawn from United States jurisprudence illustrates something of the "spectrum" of temporal retrospectivity, running from absolute nullification to qualified recognition. Each raises the question as to the extent to which a court will recognise the validity of actions taken on foot of legislation found to be invalid. One must, of course, bear in mind that the constitutional remedies in the United States jurisprudence operate differently from those under the 1937 Constitution.

32. Norton v. Shelby County, 118 U.S. 425 [1886], later cited in Murphy v. Attorney General [1982] I.R. 241, is an example of a more "absolute" approach. The breadth of the principle enunciated in the judgment is predicated upon its own remarkable facts. The plaintiff sought declarations as to the validity of bonds to the value of $1,000 each, said to have been issued by Shelby County, Tennessee. The bonds were issued by what were termed " de facto Commissioners", appointed on foot of legislation for that purpose. In fact, legislation creating the Commissioners had been impugned from the very beginning. The Courts of Tennessee had already held that their existence was based on a "usurpation" of the historic role of "county justices", who had previously been charged under law with such function. On appeal, the Supreme Court of the United States held that the status of these commissioners had never been lawful, either on a de jure or de facto basis. Speaking for the court, Field J. expressed a trenchant view:

      "An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation as inoperative as though it had never been passed." (At p. 426).
33. Based on this statement, the courts should treat an impugned law, or measure taken on foot of it, as if it had never taken place; as non-existent, or a nullity. But, whilst much quoted, the judgment is in fact more nuanced than might first appear. The judgment does consider other later authorities where recognition was given to actions taken on foot of impugned law. The passage quoted above, frequently de-contextualised, is now sometimes deployed by political extremists as legitimising disobedience to the legal order, or a specific enactment.

34. Many decades later, in Chicot County Drainage District v. Baxter State Bank , 308 U.S. 371 [1940], the same court had to consider a situation rather different from that in Norton . A bankruptcy court had approved the making of a composition with creditors. But, thereafter, the statute vesting the bankruptcy court with jurisdiction had been declared "inapplicable" under the constitutional law of the United States. The judgment delivered by Chief Justice Hughes, a judge with the wide political as well as legal experience, observed that the courts below had proceeded on the basis of what he referred to pointedly as their " theory " that, having been found to be unconstitutional, the Act of Congress under challenge was not a law; that it was inoperative; conferred no rights, and imposed no duties, therefore affording no basis for the challenged decree. The reference to "theory" was to the judgment in Norton. However, Hughes C.J. went on to point out that such broad statements must be taken with qualifications. He instanced the fact that the " actual existence of a statute, prior to such a determination, [was] an operative fact, and may have consequences which cannot justly be ignored" . He pointed out the fundamental pragmatic truth that the past could not always be erased by a new judicial declaration, and the effect of a subsequent ruling as to invalidity fell to be considered in various aspects with regard to particular relations, both individual and corporate, and particular conduct, both private and official. He continued " Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination." Conceding that the questions are amongst the most difficult of those which engage the attention of courts, he pointed out that it was manifest from numerous decisions that an "all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified." (At p. 374).

35. An over-simplistic analysis might conclude that the distinction between the approaches in two cases was merely fact-based and contextual. But the difference is profound in its consequence. In Norton none of the acts purportedly carried out under the purported "form" of law were susceptible to legal justification, on the basis of de facto "substance"; what had occurred was a "usurpation" of law, which had been immediately challenged by proceedings at State level. It could not be said that reliance on the purported law could have been warranted on a " bona fide good faith" basis. The situation in Chicot County was, however, quite distinct. The bankruptcy law which for many years had been applied both in substance and good faith, was held ultimately to be constitutionally invalid. But the court was prepared to impart recognition to what had been done under that law. Thus, the United States Supreme Court concluded a principle of absolute retroactive invalidity could not be justified. In fact, Chicot County was one of the first decisions where the United States Supreme Court was prepared to consider a prospective declaration of invalidity.

36. In hindsight, the usage of the word " theory " in the Chicot County judgment is highly significant. It relates to how one sees the law. The courts must consider both theory and practicality in the vindication of rights. The Constitution so provides. The integration of constitutional theory and practicalities lies at the centre of the issues discussed here. How far can the courts undo or reshape the facts of history, when, as Henchy J., quoting an eminent historian, put the problem: " The statue has taken shape and never go back to the quarry" . ( Murphy v. Attorney General [1982] I.R. 241, at 315). In the application of the law, the courts must deploy a form of praxis based in principle but applied within a constitutional framework on an engagement with facts and application of such principles in a manner which has regard to consequences, and a hierarchy of values including true social order. Part of such consideration involves an awareness of the fact that judgments can have real and unforeseen social consequences.

The Earlier Jurisprudence of the Superior Courts
37. An investigation of our Superior Court's approach to retrospecitity and retroactivity begins with the judgment of this Court in McMahon v. The Attorney General [1972] I.R. 69. McMahon was an Article 50 case. It was a small harbinger of things to come. In McMahon , this Court declared provisions of the 1923 Electoral Acts constitutionally invalid as they insufficiently protected the secrecy of the ballot. In theory, this might have placed the validity of all elections post-1923 in question. But while applying the declaration retrospectively in theory, the Court, in fact, consciously eschewed a broad application of that theory. It is not clear that the question of retrospectivity was ever argued in McMahon . However, towards the conclusion of his judgment, O'Dalaigh C.J. pointed out that constitutional rights are declared " not alone because of bitter memories of the past but no less because of the improbable, but not-to-be-overlooked, perils of the future." He expressly pointed out that it had been no part of the plaintiff's case in McMahon that the validity of the last, or any previous election, had been, or could be, effected by the irregular voting procedures of which he complained. (At pp. 111-112). Fitzgerald J., in the sole dissenting judgment, pointed out that in fact the plaintiff had not advanced any argument as to the possible consequences of a finding of the procedure being unconstitutional, but he added that, a finding such as that of the majority in the case " raises or could raise " the issue as to whether all elections since 1923 were unconstitutional. (At p. 113). No such challenges were ever initiated subsequently. But the judgments nonetheless show awareness as to the potential disruptive effects of absolutism. O'Dalaigh C.J. consciously limited the majority judgment as to avoid any such risk of unforeseen consequences. It is not without significance, however, that in McMahon the order of the Court stated, again in the present tense, that the impugned provisions " are not consistent with the Constitution ", and " are not continued by Article 50 of the Constitution ". As O'Higgins C.J. pointed out in his judgment in Murphy , a declaration of invalidity under that provision necessarily entails a degree of retrospectivity.

38. It is necessary to refer to two cases only briefly, as O'Donnell J. deals with them more extensively. In de Burca & Another v. Attorney General [1976], the plaintiffs impugned provisions of the Juries Act, 1927, which they submitted improperly had regard to a property qualification for membership of juries. This qualification was held to be invalid, having regard to Article 40.1 of the Constitution. The question arose as to the validity of thousands of previous jury trials which had taken place before questionably constituted jury panels previously. In de Burca , O'Higgins C.J. concluded that the issue could be addressed having regard to the fact that it could not be shown that no one who had served on such juries had been ineligible, and that, consequently, it could not be shown that the trials were constitutionally flawed. Walsh J., on the other hand, was prepared to countenance the possibility that jury verdicts would be invalid, but he, too, was of the view that it could not be shown that ineligible persons had served on juries. I add here that, in Canada, in R v. Bain [1992] 1 SCR 91, this issue was addressed by a suspended declaration to facilitate the enactment of legislation.

39. In State (Byrne) v. Frawley [1978] I.R. 326, a challenge was made to the validity of a trial which had been conducted after the decision of this Court in de Burca. There, the majority of the Court (Henchy, Griffin and Parke JJ.), O'Higgins C.J. and Kenny J. dissenting, concluded that the decision to proceed with the trial had taken place in the knowledge of the de Burca decision. Thus, as a consequence, the appellant was estopped from raising this as a ground claiming invalidity.

Murphy v. The Attorney General - Considered in More Detail
40. The discussion of Murphy v. The Attorney General which follows must be more detailed. As will be seen, the majority and minority of this Court in Murphy approached the question of invalidity from two different theoretical viewpoints. But what is significant was the limited practical retroactive effect even of the majority judgment which, while declaring the provision challenged as being void ab initio, adopted a practical and policy-based approach in qualifying any entitlement to damages or redress. The Court declared that married couples paid significantly more tax than single persons living together. The plaintiffs, a married couple, sought the refund of the money they had overpaid. Self-evidently, the consequences of such a declaration of invalidity, erga omnes and ab initio , could have had cataclysmic effects on the State's financial arrangements.

41. In the minority, O'Higgins C.J. pointed out that Article 25.4.1 of the Constitution declared that every bill became and remained law on the signature by the President. Thus, he reasoned, any subsequent declaration of invalidity could not be seen as relating back to the moment of enactment; rather, it took effect only on the date of such finding by the court. He instanced the possibility that such declarations might potentially interfere with vested constitutional rights; prosecutions. convictions and punishment of citizens; challenges to expenditure of public monies; and the risk that innocent people might be discouraged from entering into obligations or accept liabilities of a permanent nature; and that actions undertaken in good faith might retrospectively become serious wrongs. In my view, these are weighty considerations in favour of prospectivity, provided the text of Constitution does not indicate to the contrary. Having referred to the potential for "turmoil and chaos" arising from such declarations, O'Higgins C.J. concluded:

      "… that under the Constitution a declaration as to the invalidity of a law or any provision thereof can only operate from the moment such invalidity is declared in the High Court or in the Supreme Court. I have been able to arrive at this conclusion from an examination and interpretation of the express provisions of the Constitution. However, even if this had not been possible, the requirements of an ordered society would have inclined my mind to such a conclusion. It would appear to me to be unthinkable that a people, who adopted a Constitution in the interests, inter alia, of achieving a "true social order" (see Preamble) should have intended that, under that Constitution, laws, formally passed, which went into operation and which were respected and obeyed, could, years after their enactment, be declared never to have had the force of law. Such an interpretation of the Constitution would provide for our people the very antithesis of a true social order - an uneasy existence fraught with legal and constitutional uncertainty."
Clearly, O'Higgins C.J. had in mind here cases such as de Burca & Anderson v. Attorney General [1976] I.R. 38, and The State (Byrne) v. Frawley [1978] I.R. 326, which illustrated precisely the difficulties with retrospectivity.

42. The conclusions of the majority in Murphy were set out in the judgment of Henchy J. He espoused the view that when the impugned provision was declared invalid, the legislation had been, at all times, null and void; and that to reach any other conclusion would, he felt, be to fail to recognise the true nature of the constitutional limitations of the legislative power vested in the Oireachtas. It would distort the meaning that should be given to "invalid" in the constitutional context; and would fly in the face of what he referred to as an "unbroken" line of judicial decisions, which expressly, or by necessary implication, pointed to the date of enactment as being the date from which invalidity was to attach to the measure which had been struck down because of its unconstitutionality.

43. The only Supreme Court authority directly cited by Henchy J. was, in fact, the judgment of this Court in McMahon . The manner in which the Court qualified the retrospective potential in the Article 50 case of McMahon has been described. Henchy J. also cited two High Court judgments to which he referred as part of the unbroken line of authority. These were O'Brien v. Keogh [1972] I.R. 144 and M v. An Bord Uchtála [1975] I.R. 81. The facts of both High Court cases did indeed require, by necessary implication, that to give effect to the judgments they be given some limited retrospective effect. But the approach differed from McMahon , in that, there is no indication that the issue of retrospectivity, prospectivity, or damages, was ever raised or considered in those High Court cases. It is difficult to understand either case as part of an unbroken line of authority.

44. In Murphy , Henchy J. nonetheless drew a clear distinction between the theory and the qualified practical effect of the judgment when it came to damages. He expressed the view that a declaration of invalidity took place ab initio , that it was a "judicial death certificate". But the judgments of the majority, while based on an ab initio theory , actually show the careful manner in which, even then, the effects of the theory were qualified and limited, where the practical issue of damages arose. Based on the equitable principle of restitution, the plaintiffs' relief was confined to a period between the date of their effective objection to payment, and the date of the judgment. (p.318) This might be seen as a classical application of restitutionary principles of payment under objection or challenge. Relief was restricted only to that small category of persons who had actually raised the issue in correspondence. Insofar as other taxpayers were concerned, the State could rely on the restitutionary defence of alteration of position, that is to say, that even having regard to the fact that the tax had been exacted by the State in its official guise, such conduct had not been challenged by other taxpayers, and the State had altered its position, and structured its fiscal arrangements in the expectation of tax receipts premised on the impugned taxation regime. Thus, the State was entitled to rely upon the restitutionary defence of alteration of position.

45. Whether seen as an issue of public law, or private law, one might ponder the question of what the reaction of the State should have been to the plaintiff's initiating letters raising objection? Part of the complexity in Murphy is that it arose from a finding that a constitutional right of the plaintiffs, under Article 41.2, as members of a constitutional family, had been breached, in that the taxation provision did not protect the plaintiffs' family with "special care", in the words of that Article. The finding of this personal right had potentially wide constitutional scope however. The duty of the State was to uphold and apply the law. It is difficult to see what steps the State might have taken in the realm of public law, or even in private law, to allow its conduct or reduce its exposure in response to a claim in restitution or to address the issue of imputed invalidity. Seen as a matter of pure logic, not tempered by overarching considerations of social order, a declaration might, in theory, have encompassed all taxpayers back to the date of the enactment. Financial chaos would inevitably have resulted from the application of the theory in its absolute form.

46. The rationale to be found in ss. VIII to XI of Henchy J.'s judgment has relevance to this case. It is necessary to look at the steps in the judge's reasoning. The judge pointed out that, insofar as the case was, in equity, based upon the proposition that the State was unjustly enriched by receipt of the taxes exacted colore officii , in fact, tens of thousands of married couples who came within " the sweep " of the income tax collected. He held that any taxpayer who failed to object was guilty of laches. (At pp. 318 and 319). But he also took into account the fact that the tax had been paid in good faith, and in reliance on the presumption that the " now-condemned sections were favoured with constitutionality ". (At pp. 319 and 320). He pointed out the practical difficulties in respect of restitution, in that different groups of taxpayers paid taxes in each year, if only because of the debts of some taxpayers, and the accession of new persons to the lists of taxpayers. (At p. 320). He observed that the primary purpose of an order of restitution is to restore the status quo , insofar as the repayment of money could do so. But he then went on to cite considerations of impracticality:

      "But when, as happened here, the State was led to believe, by the protracted absence of a claim to the contrary, that it was legally and constitutionally proper to spend the money thus collected, the position had become so altered, the logistics of reparation so weighted and distorted by factors such as inflation and interest, the prima facie right of the taxpayers to be recouped so devalued by the fact that, as members of the community, and more particularly as married couples, they had benefited from the taxes thus collected, that it would be inequitable, unjust and unreal to expect the State to make full restitution." (At p. 320).
47. It is necessary then to pause to consider a passage in Henchy J.'s judgment, which might give rise to misunderstanding. It begins, at page 321:
      "The conclusion that the plaintiffs are entitled only to limited recoupment is supported by comparable decisions in other jurisdictions.

      For example, the United States Supreme Court, unencumbered as it is by any constitutional imperative such as is contained in Article 50 or Article 15, s. 4, sub-s. 1, of our Constitution, has varied in its rulings as to whether its condemnation of a statute as unconstitutional should be given effect to prospectively only or with some degree of retroactivity. However, even in cases where the statute has been declared to have been invalid ab initio (as is the position in the present case), it has come to recognize that legal transactions that took place under the void statute did not necessarily suffer retrospective invalidity with the fall of the statute. The difficulty, if not impossibility, of laying down a general rule on the matter was dealt with by Hughes C.J. in delivering the opinion of the court in Chicot County Drainage District v. Baxter State Bank 37 at p. 374 of the report." (Emphasis added)

He then quotes the passage from Hughes C.J. Having done so, Henchy J. commented:
      "In other words, it has been found that considerations of economic necessity, practical convenience, public policy, the equity of the case, and suchlike matters, may require that force and effect be given in certain cases to transactions carried out under the void statute." (At p. 322).
48. But it is important that Henchy J.'s citation of that passage should not be misunderstood. The reference to a statute having been declared invalid ab initio , " as in the present case ", should not be understood as referring to the statute which was in question in Chicot County Drainage District. There is, in fact, a certain irony in the citation of the passage from Hughes C.J.

49. In fact, Griffin J.'s judgment explains a great deal. Like O'Higgins C.J., Geoghegan J. cited the judgment of Cardozo J. in Great Northern Railway Company v. Sunburst Oil & Refining Company [1932] 287 US 358, as being the first occasion when the technique of overruling was evolved to limit the retrospective effects of a decision of a court, when it overruled one of its own previous decisions. At page 326 of the Irish Reports, Griffin J. quotes Cardozo J., at page 364 of Sunburst , as follows:

      "This is a case where a court has refused to make its ruling retroactive, and the novel stand is taken that the Constitution of the United States is infringed by that refusal. We think the Federal Constitution has no voice upon the subject. A state in defining the limits of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward. It may say that decisions of its highest court, though later overruled, are law none the less for intermediate transactions."
On this, Griffin J. commented that the expressed reasons stated by Cardozo J. for giving cases prospective effect was that it may do so wherever injustice or hardship will thereby be avoided. Griffin J. went on:
      "The Sunburst case permitted prospectivity in relation to judicial decisions. But in 1939, the Supreme Court of the United States extended the right of the court to include prospectivity in respect of the overruling of statutes."
Thereafter, the Irish Report states:
      "The judge here referred to Chicot County Drainage District v. Baxter State Bank, and quoted the passage from Hughes C.J. appearing at pp.321-2 supra."
One must bear in mind, therefore, that, while Henchy J. cited Chicot County in Murphy , it was, in fact, a judgment where the Federal Supreme Court countenanced prospective overruling, and refrained from making an order having ab initio retroactive invalidity effect. It was, therefore, one of those cases which illustrated that the United States Supreme Court had, as Henchy J. wrote, " varied " its rulings as to whether its condemnation of a statute as unconstitutional should be given effect to prospectively, or only with some degree of retroactivity. The Chicot County judgment was, perhaps more contextually, relied upon and cited in the judgments of this Court in A v. Governor of Arbour Hill Prison [2006] I.R. There the Court questioned the validity of an absolute ab initio theory of invalidity.

50. Henchy J.'s reference to "public policy" defences or limitations can only be characterised as belonging more in the realm of public law. The judgment instances examples of a similar approach in EEC law. ( Defrenne v. Sabena (Case C-43/75) [1976] ECR 456). There, the then EEC court, having declared the principle that men and women should receive equal pay for work, thereafter placed limitations on the judgment restricting relief to Ms. Defrenne, and not to other potential claimants. Henchy J. commented:

      "In other words, it has been found that considerations of economic necessity, practical convenience, public policy, the equity of the case and such like matters may require that force and effect be given in certain cases to transactions carried out under the void statute".
He instanced this as " an example from a different judicial metier of the subrogation of abstract principle, and the symmetry of logic to the compulsion of economic, or practical demands of society".

51. Henchy J. wrote that Defrenne had to be seen in light of the possible catastrophic economic consequences that might have resulted from applying the relevant treaty provisions to the full. But, in a short passage which again can only be viewed as belonging far more in the realm of public law rather than the private law of restitution, he went on to say:

      "Nevertheless, it [the Defrenne judgment] stands as a cogent example of the principle that what has been done or left undone under a constitutionally invalid law may, in certain events, such as the evolution of a set of circumstances which it would be impossible, or unjust, or contrary to the common good, to attempt to reverse or undo, have to be left beyond the reach of full redressive legal proceedings and have to be treated as an exemplification of the maxim "communis error facit ius."" (At p.324).
The references to the " constitutionally invalid law "; and " contrary to the common good "; and the usage of the Latin maxim referring to public error making law, are not usually found in private law jurisprudence. One cannot avoid the conclusion that the practical effect of this passage is that, even a constitutionally invalid provision continues to have a subsisting "force of law", at least until a declaration by a court. The phrase "force of law" has a resonance with the judgment of O'Flaherty J. in McDonnell v. Ireland [1998] I.R. 134, considered later.

52. The judgments of this Court in Murphy , and also those in A v. The Governor of Arbour Hill Prison , evince a shared concern that an unqualified application of the theory of invalidity ab initio is simply not consistent with a fundamental premise of the Constitution, that is, the attainment and maintenance of an ordered society under the rule of law. In the post- Murphy cases of Muckley v. Attorney General [1985] I.R. 472, at 482, and O'Rourke v. Revenue Commissioners [1996] 2 ILRM 17, the courts had clear regard to the potential chaos caused by persons making restitutionary claims on foot of the previous tax system. I do not think it necessary to go into either of these judgments in detail however.

53. There are, however, critical factors to bear in mind regarding the judgment in Murphy . The court held that the unequal treatment, for the purposes both of the assessment of taxable income, and of the collection of tax from income, of a married couple, living together, as compared to the treatment of two single persons also living together, was not prohibited by Article 40.1 of the Constitution, being justified by the difference of social function between the married couple and the two single persons. But it then went on to hold that the consequent imposition in certain circumstances of tax on the married couple at a higher rate than would have been imposed on two single persons enjoying identical incomes, did constitute a breach by the State of its undertaking by s.3 of Article 41, to guard with special care the institution of marriage, and to protect it against attack. The entire basis of the judgment in Murphy was that there was an infringement of the plaintiffs' personal constitutional rights. The Court has not made any such finding in this case. The Court did conclude that the plaintiff held a statutory entitlement to the SPC. But the Court stopped short of holding that this was a constitutional entitlement. The statutory entitlement was, itself, subject to conditions set out in the statute itself. This statutory entitlement cannot be converted into a constitutional entitlement for the purposes of imputing a constitutional entitlement.

Cox v. Ireland and McDonnell v. Ireland
54. In Cox v. Ireland [1992] 2 I.R. 503; this Court invalidated s.34 of the Offences Against the State Act, 1939. That provision laid down serious sanctions, including automatic forfeiture of a State pension and disqualification from holding an office or employment under the State, for a period of 7 years for a person convicted of a scheduled offence before the Special Criminal Court. By contrast to the instant appeal, this Court held that Mr. Cox held a constitutional right to the pension. The Court held the State was entitled to provide for the imposition of onerous penalties and forfeitures to deter the commission of crime threatening public order and State authority. Against this, however, the Court considered that the State also had a continuing obligation to protect the constitutional rights of its citizens, including the plaintiff. The Court held that the indiscriminate and over-broad nature of s.34, which provided for such forfeiture and disqualification, was over-broad, and indiscriminate, and thereby constitutionally invalid.

55. Six years later, the issue of retrospectivity of a statutory provision again arose in McDonnell v. Ireland [1998] I.R. 134, which on its facts was somewhat similar to Cox . The plaintiff sought damages for breach of constitutional rights, having sustained sanctions similar to those of Mr. Cox. But the sanctions had been imposed upon the plaintiff, Mr. McDonnell, some 20 years previously. This Court (Keane, O'Flaherty and Barrington JJ.) indicated that, although Mr. McDonnell might have recovered damages within the normal limitation period, an action for breach of constitutional rights was nonetheless a tort for the purposes of the Statute of Limitations, and the plaintiff's action was long out of time. Two of the three judgments delivered indicate divergent approaches to the question of retroactivity.t Barrington J. stated his agreement with the views of the majority in Murphy , to the effect that an unconstitutional law was void ab initio . In his view, the relevant provision could never become a valid law because of its repugnancy to the Constitution.

56. O'Flaherty J., however, took a different approach, echoing O'Higgins C.J.'s minority judgment in Murphy . O'Flaherty J. referred to Article 25.4.1 of the Constitution, which provided that a Bill became law on the President's signature, and remained law unless invalidated or amended. Relying on Article 25.4.1, O'Flaherty J. reasoned that, from the date of an enactment onwards, all citizens were required to tailor their conduct in such a way as to conform with the obligations of the law enacted, without any discretion. He explained that such statutes had " the force of law ", which law formed a " cornerstone of rights and obligations which define how we live in an ordered society under the rule of law. " (At p. 144). He explained his conclusion in this way:

      "A rule of constitutional interpretation, which preserves the distinct status of statute law which, as such, is necessitated by the requirements of an ordered society and by "the reality of situation"… should have the effect that laws must be observed until struck down as unconstitutional . The consequences of striking down legislation can only crystallise in respect of the immediate litigation which gave rise to the declaration of invalidity." (Emphasis added) (At p. 144).
His rationale for this approach relates to the maintenance or attainment of social order in society. He added, briefly:
      "This is what occurred in Murphy v. The Attorney General [1982] I.R. 241 as well as in Cox v. Ireland [1992] 2 I.R. 503." (At p. 144).
57. In this brief, but significant, passage, O'Flaherty J. was undoubtedly referring to the fact that in Murphy , all those couples affected by the impugned provision who had not challenged or objected to it, continued to be bound by the law. The impugned statute continued to have full force and effect , albeit that it had been successfully impugned by the plaintiffs. His conclusion on this point, like that of O'Higgins C.J. in Murphy , was premised on the concept of an ordered society under the rule of law.

A v. Governor of Arbour Hill Prison
58. This Court returned to this issue in A v. The Governor of Arbour Hill Prison . The case involved the validity of Mr. A's criminal conviction. The question arose, unavoidably, as to when the declaration of invalidity in the earlier decision in CC v. Ireland (Cited at para. 12 supra ) had " crystallised ". Hardiman J.'s judgment concurred in the order, but di so on different reasoning. The judgments of Murray C.J., McGuinness, and Geoghegan JJ., each concurring with the other, interpret the majority view in Murphy as being that there had to be a subsisting recognition of acts done on foot of a law, even when such law has been successfully impugned.

59. In A , Murray C.J. closely analysed the majority and minority judgments of this Court in Murphy , referring to Henchy J.'s judgment, and also quoting passages from O'Higgins C.J.'s judgment as to the point of invalidity. Murray C.J. preferred the approach adopted by O'Higgins C.J. in Murphy . But, having referred in detail to the judgment in Chicot County , Murray C.J. referred to the passages from O'Flaherty J.'s judgment in McDonnell quoted earlier, Murray C.J. expressed this definitive conclusion:

      "This statement of the law I am quite satisfied is correct. It is the logical and ineluctable application of the principles and considerations set out in the judgment of this court in Murphy v. The Attorney General and indeed other judicial dicta." (At p. 141).
60. Murray C.J. then enunciated a principle, deduced from this analysis, to the effect that " final decisions in judicial proceedings, civil or criminal, which have been decided on foot of an Act of the Oireachtas which has been relied upon by parties because of its status as a law considered or presumed to be constitutional, should not be set aside by reason solely of a subsequent decision declaring the Act constitutionally invalid." He held that, save in exceptional circumstances, any other approach would render the Constitution dysfunctional, and ignore that it contains a complete set of rules and principles designed to ensure " an ordered society under the rule of law ", in the words of O'Flaherty J. (At para. 116). He added:
      "I am quite satisfied that the Constitution never intended to visit on that ordered society the potential unravelling of judicial decisions over many decades when a particular Act is found unconstitutional solely on the consideration of the ab initio principle to the exclusion of all others." (At para. 117).
61. The judgments referred to in A all make clear that a declaration of invalidity is the " primary redress ". Denham J.'s judgment does not dissent from this view. Where there is a direct challenge to a provision therefore, a court must declare it to be unconstitutional where it concludes there is invalidity. That will be the " primary redress ". The law is therefore that a declaration of invalidity " crystallises " at the point of time the declaration is made by a court, and not before.

62. In fact, Denham J., concurring, actually went somewhat further, in reference to the Irish legal authorities which Henchy J. cited in Murphy . She wrote that there never had been a " principle of retrospective application generally of a declaration of unconstitutionality in our jurisprudence ". She stated in terms:

      "On the contrary, outside the litigation which sought the declaration, declarations of unconstitutionality have not been applied retrospectively." (At para. 135).
Denham J. accepted, however, that while there had been a " practice " of retrospectivity, as illustrated by the authorities cited, this had not been stated as a principle, and had not been the subject of an express decision of this Court. Referring to the consequences of an ab initio approach, she observed:
      "Justice is not served, nor is the reality of the situation in our community served, by applying retrospectively an invalidity in circumstances where a law has been relied upon by all for many years. Such a principle of retrospective application would be the antithesis of law and order." (para. 175).
63. Stepping back, it is easy to see that, while there are differences of theoretical approach between the majority in Murphy , and the majority of this Court in A , the question will often reduce itself, in practice , to one of what is practicable and just. Both judgments evinced share a common concern as to the maintenance of social order, in the context of limitation of ancillary redress.

64. A v. The Governor of Arbour Hill has been cited in this appeal. Its correctness has not been challenged. Very arguably, the principles of prospectivity expressed there might be applied in this case. I do not find it necessary to approach this appeal in this way, and it has not been so argued. The issue of prospectivity versus retrospectivity, with all its consequences, has not yet been fully considered, and would require more detailed reflection and deliberation. What follows, therefore, is also an obiter dictum , in relation to prospectivity.

An Obiter Observation
65. In my opinion, a theory of constitutional interpretation should not become so dogmatic and absolute that it tends to undermine the very basis of the social order which is central to that Constitution. To avoid such consequence, the law can provide that the striking down of legislation will only crystallise in respect of the immediate litigation which gives rise to the declaration of invalidity. Declarations of invalidity should, in general, be prospective. (See also, to the same effect , DPP v. Kavanagh [2012] IECCA 65, Court of Criminal Appeal, composed, significantly of Denham C.J., Moriarty and Hogan JJ., at para. 74). As I interpret the judgments in A , a distinction is to be made between the making of a declaration prospectively, and then whether there are circumstances in which there should be retroactive recognition of acts, consequences or effects which might arise from such a declaration. The identification of such circumstances is a matter of construing the Constitution, and applying the rights and duties contained therein in order to determine the extent to which the effect of the declaration should be applied to the question of ancillary relief, such as damages. This process can only be done on a case by case basis. One must acknowledge that the majority judgments of this Court in A mark a development on the themes previously explored in Murphy , it can now fairly be said that the judgments of this Court in A , and the observations in Kavanagh , signify the need for a renewed rigour of analysis when it comes to the consideration of damages upon a finding of invalidity. To my mind, that rigour must apply to identifying principles for an award of damages upon a finding of invalidity.

66. The principle of prospectivity espoused in A should not be confined to the facts of that case; in general, a declaration of invalidity should be prospective. In fact, the wording of Article 50, and Article 15.2.4 of the Constitution do not require that a declaration of invalidity be ab initio , or in any way retrospective. The contrary is the case. The wording of Article 15.4.2, both in English and the Irish language version, is actually phrased more in the future tense than the past tense. In the English language, Article 15.4.2 provides that 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" (Emphasis added). The Irish language version is similarly phrased, first in the future conditional tense and then in the future tense:

      "I gcás aon dlí dá n-achtóidh an tOireachtas a bheith ar aon chuma in aghaidh an Bhunreachta seo nó in aghaidh aon fhorála den Bhunreacht seo beidh sé gan bhail sa mhéid go mbeidh sé in aghaidh an Bhunreachta seo agus sa mhéid sin amháin." (Emphasis added)
Henchy J. points out that the text uses the term " gan bhail " in the sense of null and void. But one cannot ignore the words that came immediately before " gan bhail " which are not always referred to. Those words are " béidh sé", in the future tense. The Constitution requires a court to determine only the extent of the repugnancy as found. (See Bunreacht na hÉireann: a study of the Irish text, Ó Cearúil, The Stationery Office 1999, pp. 235 and 686). To my mind, the words of the Constitution, read harmoniously, do not necessitate, either expressly or by implication, that a declaration be retrospective, or have retroactive effect . It is true that, up to the decision in A , a number of judgments did apply or consider retroactive effects on a case by case basis, but did so in a guarded and careful way, having regard to effect and consequence in each instance. The question of entitlement to damages must be seen in the light of that guardedness. The courts adherence to identifiable remedies, whether in restitution or constitutional tort, must be part of the consideration.

67. These are obiter observations. I now emphasise that the conclusion I have reached in this appeal does not hinge upon prospectivity, but rather on the fact that in Murphy the plaintiffs did hold a personal constitutional right, and also on a consideration of the jurisprudence cited to the Court on constitutional torts.

The Declaration, Redress and Damages
68. The form of the declaration is closely connected to the issue of damages. Counsel's submissions are detailed and helpful, but one's gratitude must be slightly tempered. The reasons for this hesitation refer back to concerns expressed earlier in this judgment, on the hazards of "constitutional dialogue" between the court and the parties as to the form and scope of a declaration. Misunderstanding is a hazard in any dialogue. But an invitation to make submissions on remedy should not to be seen as being an open-ended one. Having reached conclusions on the law, in muy view, a court should not to be requested to consider a different form of declaration; one not sought by the appellant, and one which does not reflect the operative conclusion of the Court as to why the s.249 of the 2005 Act is constitutionally invalid.

69. The principal judgment contained observations to the effect that the s.249(1) disqualification was arbitrary, indiscriminate, and disproportionate, insofar as concerned the appellant. But the ratio of the principal judgment is that the disqualification operated by s.249(1)(b) is a penalty on prisoners, in that it constitutes an impermissible incursion into the judicial domain. The judgment did not hold there was any other constitutional invalidity. Any question of entitlement to damages, or an entitlement at all, can only derive from what the Court has held to be invalid. The judgment does not speak to any constitutional right of the appellant to equality of treatment before the law under Article 40.1 of the Constitution, or a narrowing of the disqualification by the Regulations.

70. To reach such a determination would have necessitated going considerably beyond the scope of the principal judgment, and would have required a court to consider the proportionality of s.249(1) in its true legal sense, having regard to the legitimacy of the end which the provision seeks to achieve. Whether that objective is legitimate and proportionate are arguable propositions. The provision might be justified on the grounds of the legislation being part of a social solidarity code, or indeed on the alternative grounds that the appellant's basic needs, which he would normally discharge from his SPC, are, in fact, undertaken by the State during the period of his imprisonment. But the case did not extend that far.

71. As Barrington J. pointed out in Brennan v. The Attorney General [1983] ILRM 449, at 480:

      "A classification must be for a legitimate legislative purpose … It must be relevant to that purpose, and … each class must be treated fairly." (at page 483)
Since that time, this Court has adopted the same approach on numerous occasions. (See Louth v. Minister for Social Welfare [1998] 4 IR 321; An Blascaid Mor Theo v. Commissioners of Public Works in Ireland (No. 3) [2000] 1 I.R. 6; R e Article 26 and Employment Equality Bill, 1996 [1997] 2 IR 321; Re Article 26 and Part V of the Planning & Development Bill, 1999 [2000] 2 IR 321; Re Article 26 and Sections 5 and 10 of the Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 I.R.; Gilligan v. Ireland [2013] 2 IR 745; and In MR & DR v. An tArd Chláraitheior [2014] 3 IR 533; MacMenamin J.).

72. While the question of discrimination between convicted and non-convicted prisoners was addressed in the High Court by Binchy J., in the context of the holding of a property right, versus statutory right, the question of legitimacy of purpose of the legislation did not fall within the scope of this appeal.

73. In the course of submissions in the remedy hearing, counsel for the Minister was asked to furnish a copy of a draft "proposed declaration" to be made by the Court. This read as follows:

      "The Court declares that the State is not entitled to 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 [as it does not treat persons who are undergoing other forms of State detention in the same manner] with the result that the State may [not] at present apply the disqualification regime provided for by s.249(1) of the Social Welfare Consolidation Act, 2005 to convicted prisoners."
74. Sections 249(1)(b) and s.249(2) of the Act of 2005, provide that neither the pension, nor any increment thereon shall be payable to prisoners while in detention. The Minister's case is that these are to be seen as a "social solidarity" provisions; part of a developed legislative scheme to protect social welfare entitlements. On that basis, counsel for the Minister submitted earlier at the first "invalidity" hearing that the impugned provision was not punitive, but rather a statutory delineation of eligibility. But the Court rejected that argument, for the reasons outlined in the principal judgment. The judgment does not concern itself with "over inclusivity", or "under inclusivity". The declaration of invalidity in the judgment is anterior to any question concerning personal constitutional rights. But the conclusion of the judgment is that the disqualification is a penalty, in that it constitutes an unlawful incursion into the judicial domain. This is an erga omnes declaration.

75. Counsel for the respondents have submitted that they will not propose legislative amendments to allow the question of social welfare payments to be suspended, or to be considered by a judge. They consider that such an approach is not consistent with government policy on social welfare payments. This is not a concern for this Court. Counsel for the Minister informed the Court that, in projected amending legislation, the Minister intended to engage, therefore, in what might best be described as a legislative " levelling down " process, the effect of which would actually be to render a broader category of persons ineligible for the SPC pension. But to give effect to this aim, the Minister now seeks to impugn s.249(1)(A), and regulations made thereunder. The Minister makes the case that s.249(6), (6A), (10) and (17) contain a series of similar disqualifications in respect of "assistance based schemes", including job seekers allowance. It is said that an award of damages could run into millions of Euro.

76. Under the latter provision, and the regulations made thereunder, a range of persons are indeed excluded from disqualification. (See Articles 217 - 219 Social Welfare (Consolidated Claims, Payment & Control) (Amendment) (No. 1) (Absence from State) Regulations, 2017, (S.I. 12/2017). The Regulations also contain exceptions from disqualification in regard to persons who have not been found guilty of criminal offences, as well as relating to persons absent from the State.

77. But, in fact, as the Minister concedes, the appellant's challenge was, in truth, confined to s.249(1)(b) of the Act, as it applies to prisoners as opposed to other categories of person who may be subject to a disqualification for other reasons, such as absence from the State. It is my firm view, that the Court should not be lured down an avenue it does not need to explore by allowing a view as to what the Minister may, or may not, do. This cannot influence the form of declaration. The Minister's wish is that the Court confine the invalidity declaration not only to s.249(1)(A) but also what were referred to as " the relevant parts " of the regulations; which were a " problematic exception " from the disqualification in respect of prisoners in detention. But what the Minister wishes to " impugn " - there is no other word - is a provision, the constitutionality of which was not challenged.

78. In my opinion, therefore, the Court cannot be swayed by a submission, however forcefully made, that it should recharacterise the conclusion of the principal judgment, either for reasons of administrative convenience, or on the basis of a submission not material to the conclusion in its principal judgment. Still less, should this Court accept a submission the effect of which was, that by confining itself to making a declaration in the form intended and previously indicated, this Court would, itself, be " interfering " with the role of the executive in its proposals to amend the legislation now found invalid. This was the thrust of the Minister's written submission. I go no further than to say such a submission was misconceived. It would run counter to the principle of separation of powers, fundamental to, and part of the very structure of the Constitution. For the purposes of absolute clarity, I do not express any ex ante view, either by way of approval, comment or criticism in relation to any proposed amending legislation. The Court is not, at least at this point, called on to consider what is proposed, potentially affecting a wide category of prisoners who, subject to necessary qualification, owing to their status are entitled to the protections contained in, or arising from, the Constitution.

The Declaration
79. At risk of repetition, it is s.249(1)(b) which imposes the disqualification on prisoners, as opposed to other categories of person, such as those absent from the State. I would hold that the "primary redress" should take the form of a declaration to the effect that s.249(1)(b) of the Social Welfare (Consolidation) Act, 2005 is invalid, having regard to Articles 34 and 38.1 of the Constitution. Such declaration should be effective from the date of delivery of this judgment.

Damages
80. The nature of the declaration must, in turn, operate as a framework for the conclusion on damages. A declaration of invalidity does not, per se , necessitate an entitlement to damages in every case. Historically, in many such cases, the issue of damages did not even arise. Can this declaration, erga omnes . without more, give rise to either general or pecuniary damages in this case?

81. To my mind, the discussion on damages starts, and, in a sense ends, with the nature of the constitutional invalidity. This was that the disqualification from SPC was an extra-judicial punishment. This has an unavoidable consequence to any claim for damages.

82. In An Blascaod Mor Teo. v. Commissioners for Public Works in Ireland (No. 4) [2000] 3 IR 565, Budd J. was prepared to accept that, in appropriate circumstances, a plaintiff might recover damages for infringement of a constitutional right brought about by invalid legislation, where the damage was proved to have "flowed directly" from the effects of the invalidity, without some intervening "imponderables" and "events". He also expressed the view that the legislature should be given a degree of tolerance when it has to weigh conflicting rights in the balance. In my view, this is a correct statement of the law. I do not accept that a declaration of invalidity, per se , can give rise to damages, even nominal damages. It follows that I would not follow the judgment of Herbert J. in Redmond v. Minister for Environment (No. 2) [2006] 3 I.R. 1, where he awarded nominal damages on a declaration on this issue. It is not without significance that, even in Redmond , Herbert J. stated that it was not either possible or desirable to formulate principles of general application as to the circumstances in which a court might so award damages, or to the type of such damages. But there is nothing in Herbert J.'s judgment which runs counter to Budd J.'s observation that any award of damages must flow directly from the finding of invalidity. I move in a moment to consider whether the appellant can show direct loss flowing from the invalidity.

83. Before doing so, I would mention that in Keating v. Crowley [2010] 3 IR 648, at para. 79/80, Murray C.J. commented that it was undoubtedly the case that, in certain circumstances, the State was liable to pay compensation to individuals for breach of their constitutional rights. He opined that this would be particularly so when the State, at the time the damage was caused, was acting unlawfully and with mala fides , or misfeasance of public office. But he went on to state:

      "It is an altogether different matter to determine the liability of the State, including its vicarious liability, for acts bona fide done by a judge exercising his jurisdiction under a law which at the time enjoyed the presumption of constitutionality or other bona fide exercise of statutory powers which also enjoyed such a presumption."
84. I consider first direct loss. The circumstances of this fall within the "exceptional" category identified by Budd J. To my mind, it is not possible to identify that damages, or any other form of entitlement, flow directly from the invalidity, because of the very existence of intervening "imponderables" and "events". An entitlement to damages or redress must be analysed on the basis of what would have been the case had the provision been constitutionally compliant. Of necessity, this would have meant that the issue as to eligibility, or ineligibility, or degree of eligibility, for SPC would have been dealt with by the trial judge who was sentencing Mr. C. One cannot avoid this fact. No statutory entitlement either can be said to directly flow from the invalidity. But, even if the appellant's entitlement is characterised as being statutory, the question remains, under what rubric any right to repayment of any sum could arise? If general damages, one is entitled to enquire as to the nexus between the award and the constitutional invalidity. Similar observations apply in relation to special or pecuniary damages. Nominal damages, generally, are a very small sum, frequently amounting to €1 or €100. For my own part, I am unable to see a basis for any award.

85. But, no matter what might be the basis, the underlying question posed by Murray C.J. in Keating v. Crowley remains. Why should the Minister, or any of the respondents, pay any sum to the appellant for, without mala fides , having applied a law, which was entitled to the presumption of constitutionality, and which continued in being for so many years without challenge?

86. The appellant accepts that the declaration takes effect only as of the date of judgment. How then can it be claimed that the Minister acted unlawfully prior to that declaration? Entitlement to damages for past invalidity must surely hinge upon an "unlawful" activity. An award of damages must recognise that there has been a finding that, in the past, some person, or individual, acted contrary to law, or in breach of duty. Yet the Minister did no more than apply the law as it stood. That law was entitled to a presumption of constitutionality until struck down for invalidity. But it is not necessary to determine the case on this basis alone.

87. As pointed out earlier, the principal judgment does not hold that there was an infringement of a personal constitutional right, which directly caused the appellant loss or damage measureable in law. The breach of Article 34 or 38.1 by the State does not, necessarily, create a corresponding right to damages in the individual citizen. (See also Greene v. Minister for Agriculture [1990] I.R., for an example of this).

88. To conclude that the appellant is entitled to damages, simply by virtue of a declaration of invalidity in his case, would, to my mind, be to elide the logical steps and to remove from the analysis any consideration of the basis in legal principle upon which the appellant should be so entitled. (See Cleary: Public and Private Law Principles, Murphy v. Attorney General Reassessed (2011) DULJ 155, at p.162). I entirely acknowledge that there are, and will be, cases where successful plaintiffs would be entitled to an award of damages or remedy, on foot of a declaration of invalidity, but, on the basis of the arguments now advanced, I am forced to conclude this is not one of them.

Common Elements in the Case Law - Comparison between Kennedy and Murphy: A Personal Right
89. If one characterises the claim for damages as a constitutional tort, further difficulties arise in addition to those discussed earlier. To characterise a "tort" as a "wrong" is a mere truism. Yet, in this case, it is a revealing one.

90. Kennedy v. Ireland has been cited to this Court as an instance of a case where damages have been awarded for an infringement of constitutional rights. Kennedy , of course, was not a case involving constitutional invalidity. The right to damages was based on a finding that the plaintiffs' personal constitutional rights to privacy had been infringed by the defendants, in circumstances tantamount to misconduct in office. That judgment, too, illustrates the difficulties the appellant faces material to this case. Kennedy concerned a personal constitutional right: this case does not. Kennedy did not concern a declaration erga omnes : this case does. Kennedy was a case where there was a breach of a constitutional right with a correlative constitutional duty owed to both plaintiffs: this case does not have those ingredients. In Kennedy the Court was in a position to make an assessment of damages directly flowing from the violation of the constitutional right. The detriment sustained by the appellant in this case was merely the denial of a process whereby a sentencing judge might, or might not, have imposed an additional punishment upon him.

91. In Murphy , Henchy J.'s decision to allow the plaintiffs a limited form of recoupment was undoubtedly based on principles of restitution. The judgment is again predicated on a finding that the unlawful taxation of the married couple infringed their personal rights under Article 41.3 of the Constitution, containing the pledge to protect the institution of the family with special care. The extra taxation unlawfully imposed on the plaintiffs in Murphy had been extracted colore officii , that is, where a public officer demands, and is paid, money, or more money, than he is entitled to. (See Mason v. New South Wales [1959] 102 CLR 108, Windeyer J., p. 140-141, and Murphy [1982] I.R. 241 at 316). On foot of these findings, the plaintiff was held to advance a claim on money held and received. The State was held to be a constructive trustee of the monies unlawfully paid. But this entitlement was predicated on the fact that the provision was held to be invalid ab initio . A finding of unjust enrichment in Murphy was possible only because the provision was held to have been invalid at the time the tax was paid . Upon that basis, the Court was in a position to hold that the tax had been imposed, and the money paid under duress. Thus, to reach a determination that the appellant is entitled to damages, implicitly involve a determination which has retrospective effect. But this consideration begs a further question in the context of this case. It was only by applying restitutionary principles that Henchy J. was able to limit the recovery temporally, and as to scope of eligible persons. It is difficult to see upon what basis, in principle, such limitations can be applied, if it is held that the appellant is entitled to payment by virtue of statutory entitlement, or of damages.

92. I would add here that any claim for damages or compensation must have regard to the fact that, had the appellant been at liberty, the pension, or vast preponderance of it, which he would have received would have been expended on basic needs, an issue not significantly disputed in the High Court. But this has not been quantified.

93. Undoubtedly, there have been occasions, such as Murphy , when, upon a declaration of invalidity, the courts have made an award of damages. But in each such case, be it Cox , Kennedy , or Murphy , the courts have taken care to hold that the right to damages derives from the infringement of a constitutional right personal to the plaintiff, and a correlative breach of duty on the part of the defendant held liable for damages which directly caused the loss or damage caused to the plaintiff. There is, in my view, no basis for elevating the appellant's statutory right subject to statutory conditions to the status of a personal constitutional right, thereby entitling him to ancillary relief.

Constitutional Tort
94. I might add that, in all "constitutional tort" cases where damages were awarded, the courts found an infringement of a constitutional right, together with identifiable fault or wrongdoing, imputable to a defendant. (See, the education cases, Cosgrove v. Ireland [1982] ILRM 48; Hayes v. Ireland & Others [1987] ILRM 651; Conway v. Irish National Teachers' Organisation [1991] 2 I.R. 305).

95. In Kearney v. The Minister for Justice [1986] I.R. 116, Costello J. felt in a position to award damages to a plaintiff who was a prisoner, who had suffered an infringement of his personal constitutional right to communicate. Letters which had been delivered to the prison where he was detained had not been conveyed to him, as a result of the wrongful action of prison officers. In those circumstances, the plaintiff was awarded simply nominal damages on the basis that he had suffered no pecuniary loss, and was not entitled to exemplary damages. The case is not similar to the instant case. I am unable to see any basis in law for an award of damages, even on a nominal basis, for a finding of what is a bare invalidity, without more.

96. In Meskell v. CIE [1972] I.R., where the plaintiff was held entitled to damages by reason of a denial of his personal constitutional right to form associations under Article 40.6(iii). Meskell is also illustrative of the proposition that the courts will tend to award damages in circumstances where the analogies to the law of tort are clear. In that case, the plaintiff sought a declaration that his dismissal was in pursuance of an unlawful conspiracy, agreement or combination. All of these were alleged wrongs referable personally to him. I would add that, as Barrington J. pointed out in McDonnell v. Ireland , the courts take care to ensure that the invocation of a constitutional tort is not simply used as a " wild card " in defeasance of the normal categories of rights and duties outlined in the Constitution. For these reasons, in my view, even without applying any principle of prospectivity at all. I do not think the appellant has made out a case for damages, or for any entitlement. In so finding, I would express an openness to exploring other forms of proportionate remedy, including damages or otherwise, upon a finding of constitutional invalidity. But, in my view, this case does not permit such an explanation.

97. I conclude with the following summary:

      1. A court should, where necessary, consider the question of ancillary redress by damages where a finding of constitutional invalidity so requires. In general, however, a declaration of invalidity should be prospective. A finding of constitutional invalidity, without more, will not, generally, give rise to a claim for damages, especially when the State or its servants did nothing more than to uphold or apply the law challenged in a bone fide manner. For an award of damages on foot of a declaration of invalidity, it must be shown that the invalidity itself directly caused the claimants loss.

      2. Where there has been a finding of invalidity, a court will, where necessary, decide whether the invalidity was accompanied by an infringement of a personal right giving rise to damages, or whether there exists factors such as misfeasance in public office, malice, ill-will, or other constitutional tort, including breach of a personal right. Here the respondents merely applied the law as it stood, without any wrongdoing.

      3. For damages to be recoverable in the case of an invalidity there must first be shown to be a breach of a claimant's personal constitutional right, accompanied by an actionable wrong on the part of the defendant, in a manner generally cognisable under the common law, or law of torts. These are general observations.

      4. In my view, the appellant has not shown that any personal constitutional right of his was breached. What has been shown is, rather, that s.249(1)(b) of the Act of 2001 is constitutionally invalid, because it imposed an extra-judicial punishment on prisoners.

      5. The constitutional invalidity was caused by the absence of judicial process relating to the disqualification at the time of his sentencing. What the outcome of such a hearing might be, in the words of Budd J., is "imponderable", and "unascertainable". Any "loss" resulting, even if it were quantifiable, is necessarily indirect. In general, it seems to me that the simple application of the law, as it stood for many years, could not in itself give rise to a claim in damages, or a finding of wrongdoing. These would be necessary to establish any claim.

98. The Court has been informed that, subsequent to the findings in the principal judgment, the Minister offered the appellant the sum of €7,500 by way of compensation or redress. Doubtless, this must be seen as a prudential tactical step. The respondents have accepted that "a component of the remedy should be an award of damages. For my part, on consideration of the case law, I cannot now see how, as a matter of logic, any entitlement for the appellant, great or small, can arise in this case. Nor can I see a principled basis for arriving at any particular figure other than by resort to a limited form of ab initio invalidity which, in Murphy , could be justified by explicit reliance on restitutionary principles based on retrospectivity. I do not see that the same rationale can apply here. I am not persuaded that the appellant's rights, or the respondent's conduct, are comparable to that in Murphy .

Conclusion
99. The conclusions set out in this judgment are in reliance on the authorities cited to the Court. The issues in this case gave rise to a consideration of matters which have not perhaps been previously analysed in this context. I believe that, having regard to the issues raised and considered, this is a case which has general public importance to be reflected in any costs award. This judgment does not purport to answer all the many difficult legal issues which arise in cases of this type. It simply seeks to answer the questions which arise on the facts of this case. For the reasons explained in this judgment, I would hold that the claim for compensation, no matter how characterised, whether as a statutory entitlement, or restitution, or as a constitutional tort, was unsustainable. I would hold the appellant is entitled only to a declaration in the form set out in this judgment. I would dismiss any claim for damages or compensation, and would simply make a declaration in the form set out in this judgment.



The Supreme Court

C. v. The Minister for Social Protection & anor

28th November 2018
Information Note

Four judgments were delivered in this case today. A brief judgment was delivered by the Chief Justice concurring with the substantive majority judgment of Mr. Justice O’Donnell and also indicating agreement with certain observations made by Mr. Justice McKechnie. Next there is the judgment of Mr. Justice O’Donnell which represents the majority view of the Court being concurred with by the Chief Justice, Mr. Justice McKechnie and Ms. Justice O’Malley. Third there is a judgment of Mr. Justice McKechnie which substantially concurs with the judgment of Mr. Justice O’Donnell but makes a number of observations with which the Chief Justice and Ms. Justice O’Malley have expressed agreement. Finally, there is the judgment of Mr. Justice MacMenamin which agrees with much of the majority judgment of Mr. Justice O’Donnell but differs on some issues including the question of damages. In those circumstances, it is the purpose of this Information Note to set out the principal conclusions of the Court.

This Court has already (on the 27th July 2017) given a substantive judgment in this case. The unanimous view of the Court on that occasion is set out in the judgment of Mr. Justice MacMenamin who concluded, in the context of the plaintiff’s complaint about the non-payment of a contributory social welfare pension, that “the State may not operate a disqualification regime that applies only to convicted persons and, thereby, constitutes an additional punishment not imposed by a court dealing with an offender”. The disqualification of the plaintiff from the payment of his pension resulted from the operation of s. 249(1) of the Social Welfare (Consolidation) Act 2005. For the reasons set out in some detail in the judgment of Mr. Justice MacMenamin, the original scope of the disqualifications provided for in that section was such that a range of persons, including those not resident in the State or those who were otherwise in receipt of benefits from the State, were excluded. However, as a result of successive measures narrowing down the scope of the exclusions in question, the position which pertained when the plaintiff was imprisoned was that the only category of persons excluded from receipt of a contributory social welfare pension under the provisions of the section in question were those who were culpably imprisoned. That analysis formed the basis of the decision of the Court.

However, the Court did not immediately proceed to make a declaration of invalidity either in relation to the section in question, or any other measure. The matter was put in for further argument both as to the precise form of order which should be made and for the purposes of determining whether the plaintiff was entitled to the substantial damages which he claimed consequent on the finding of invalidity. The parties were agreed that the Court could address this issue at this point rather than refer the matter back to the High Court for further trial. The question of whether, and if so in what circumstances, a court might decline to make an immediate order of invalidity but rather either adjourn the question of making such an order or make such an order on a deferred basis also arose.

The judgments delivered today are unanimous on the question that the Court does have a jurisdiction to delay the making of a declaration of invalidity or to make a deferred order. However, each of the judgments emphasises that this jurisdiction should only be exercised sparingly.

Each of the judgments also agree that the appropriate form of order to make is one now declaring s. 249(1)(b) to be invalid as in breach of the Constitution.

The majority view (identified in the judgment of Mr. Justice O’Donnell) is that the effect of such a declaration of invalidity is to deem that section not to have formed part of the law at least since the time when, by virtue of the changes in the scope of its application, it became only applicable in the case of those culpably imprisoned. Mr. Justice MacMenamin expresses a contrary view to the effect that the section is only invalid from today’s date being the date when the order declaring the section to be invalid having regard to the Constitution is made.

So far as damages are concerned the majority concludes that the Plaintiff is not entitled to damages simply by reason of the finding of invalidity. The majority view, to be found in the judgment of Mr. Justice O’Donnell, emphasises that it does not follow that someone affected by a statutory provision which is found to be unconstitutional is necessarily entitled to damages while accepting that there may be particular circumstances where that may be so.

It also follows from the view of Mr. Justice MacMenamin to the effect that the section is invalid only from today’s date and that the plaintiff had no constitutional (as opposed to statutory) right to his pension and that he is not, therefore, entitled to damages.

However, the majority judgment also addresses the argument that, having regard to the fact that the plaintiff would have had an entitlement to a contributory old age pension were it not for the existence of s. 249(1)(b), it follows that he should be entitled to recover arrears of pension unpaid. The majority judgment concludes that his capacity (and that of any other claimant) to recover under this heading is significantly limited by analogy with factors identified in Murphy v AG [1982] IR 241., but that the plaintiff, having initiated proceedings, should nevertheless recover a sum of €10,000 (while noting that a substantial portion thereof, being €7,500 has already been paid on account).

Both the Chief Justice and Mr. Justice McKechnie make observations to the effect that it may be necessary to revisit the precise way in which the approach identified in Murphy should be applied in cases such as this, in the event that further proceedings occur in which such issues arise. The anonymity of the Plaintiff has been maintained solely to protect the identity of his victim in the original criminal proceedings which gave rise to his imprisonment.


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