C -v- Minister for Social Protection & anor,  IESC 57 (2018)
|Docket Number:||89 & 98/16|
|Party Name:||C, Minister for Social Protection & anor|
THE SUPREME COURT [Record No. 89/2016]
THE MINISTER FOR SOCIAL PROTECTION, IRELAND AND THE ATTORNEY GENERAL
Judgment of Mr. Justice John MacMenamin dated the 28th day of November, 2018
In what is referred to hereafter as the “principal judgment”, already delivered in this appeal  IESC 63;  2 I.L.R.M. 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  IESC 35;  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.
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.
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.
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.
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.
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.
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”.
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.
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
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.
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
Discussion of these two concepts may conveniently begin with the well-known decision of this Court in Byrne v. Ireland  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  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.
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...
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