Housing (Private Rented Dwellings) Bill, 1981

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: O'HIGGINS C.J.
• Judgment Date: 01 January 1983
• Neutral Citation: 1982 WJSC-SC 1062
• Date: 01 January 1983
• Docket Number: 341-81

HOUSING PRIVATE RENTED DWELLINGS BILL 1981

RE REFERENCE UNDER ARTICLE 26 OF THE CONSTITUTION OF THEHOUSING (PRIVATE RENTED DWELLINGS) BILL 1981

1982 WJSC-SC 1062

341-81

THE SUPREME COURT

1 JUDGMENT OF THE COURT delivered on the 19th day of February1982by O'HIGGINS C.J.

2 This is a reference by the President of Ireland made on the 24th December, 1981 pursuant to Art. 26, s.1, of the Constitution, of the Housing (Private Rented Dwellings) Bill, 1981. Pursuant to Art. 26, s.2, subs.1, of the Constitution the Court assigned counsel to contend that the Bill is repugnant to the Constitution. In the course of their submissions to the Court they have argued that the Bill is repugnant in several of its provisions. The Attorney General and counsel on his behalf have argued that there is no repugnancy.

3 The whole Bill comes before the Court pursuant to the reference thus made. The relevant constitutional provisions stipulate that when a Bill such as this is passed or deemed to have been passed by both Houses of the Oireachtas, the President may, after consultation withthe Council of State, refer the Bill to the Supreme Court for a decision on the question as to whether the Bill, or any provision or provisions of it, is or are repugnant to the Constitution or to any provisionthereof.

4 The Supreme Court consisting of not less than five judges is required to consider every question referred to it by the President under Art. 26. Before pronouncing its decision, the Court must hear arguments by or on behalf of the Attorney General and by counsel assigned by the Court. Its decision must be pronounced in open court as soon as may be, and in any case not later than sixty days after the date of the reference. If the Court decides that any provision of the referred Bill is repugnant to the Constitution or to any of its provisions, the President shall decline to sign the Bill. Otherwise, the President shall sign the Bill as soon as may be after the decision of the Court has beenpronounced.

5 As is provided by Art. 34, s.3, subs.3, of the Constitution, no Court whatever shall have jurisdiction to question the validity of a law, or any provision of a law,the Bill for which shall have been referred to the Supreme Court by the President under Art. 26, or to question the validity of a provision of a law, where the corresponding provision in the Bill for such law shall have been referred to the Supreme Court by the President under Art.26.

6 It is to be noted that the Court's function under Art. 26 is to ascertain and declare repugnancy (if such there be) to the Constitution in the referred Bill or in the specified provision or provisions thereof. It is not the function of the Court to impress any part of a referred Bill with a stamp of constitutionality. If the Court finds that any provision of the referred Bill or of the referred provisions is repugnant, then the whole Bill fails, for the President is then debarred from signing it, thus preventing it from becoming an Act. There thus may be areas of a referred Bill or of referred provisions of a Bill which may be left untouched by the Court's decision. The authors of the Bill may therefore find the Court's decision less illuminating than they would wish it to be.

7 Art. 26, s.2, subs.1, says that the Court's decision is to be reached after hearing arguments by or on behalf of the Attorney General and by counsel assigned by the Court. The Article makes no reference to the hearing of evidence. In fact, in none of the references that have come to the Court so far has evidence been heard. The difficulties that could confront a Court of at least five judges in reaching a unitary decision on the basis of conflicting evidence is too obvious to need elaboration. It is not necessary in this case to decide whether evidence may or should be heard when considering a reference under Art 26. In this, as in all earlier references, the matters argued have had, in the absence of evidence, to be dealt with as abstract problems, to the extent that, unlike practically all other cases that come before the Court, there is an absence or shortage of concrete facts, proven, admitted or projected as a matter of probability. The Court, therefore, in a case such as this, has to act on abstract materials in order to cope with the social, economic, fiscal and other features that may be crucial to aunderstanding of the working and the consequences of the referred Bill. Whether the constitutionality of a legislative measure of that nature which has been passed or is deemed to have been passed by both Houses of the Oireachtas is better determined within a fixed and immutable period of time by means of reference under Art. 26, in which case, if no repugnancy is found, the decision may never be questioned again in any court, rather than by means of an action in which specific imputations of us constitutionality would fall to be determined primarily on proven or admitted facts, is a question on which we refrain from expressing anopinion.

8 The case of Ryan v. The Attorney General 1965 I.R.294 is a good illustration of the procedural difficulties and differences already mentioned. In that case the plaintiff questioned the validity of an Act of the Oireachtas. The result depended on findings of fact based on lengthy oral evidence which was largely scientific in nature and complex in character. This Court upheld the High Court decision that the Act was not invalid of thebasis of that Court's findings of fact but made it clear that if in the future the scientific evidence available should be such as to warrant a different conclusion on the facts the question of the validity of the Act could be reopened. If the Bill for that Act had been referred to the Court under Art. 26 of the Constitution the case for invalidity would have broadly been the same, yet it is doubtful in the extreme if it would have been possible for the Court, not later than sixty days after such reference, to have heard and determined all the matters which necessarily fell to be determined in that case. Furthermore the Court's decision on such a reference would have been subject to the provisions of Art. 34, s.3, subs.3, of the Constitution.

9 The Court has entered on the foregoing exposition of the essential features of a decision on a reference under Art. 26, and of some of the ways in which such a decision is unique in the manner in which it is reached and in its consequences, in order to dispel what sometimes appears to be a misapprehension of the nature and extent of theCourt's jurisdiction in a matter such as this. With those incidents of jurisdiction in mind, the Court now addresses itself to the particular problems inherent in the instant reference.

10 The Bill in question is the Housing (Private Rented Dwellings) Bill, 1981. It comprises a long title, twenty three sections and a Schedule. In considering the question raised in the reference the Court extends to this Bill the presumption of constitutionality which is ordinarily enjoyed by Acts of the Oireachtas.

11 The Bill was passed by both Houses of the Oireachtas in order to deal with the situation resulting from this Court's decision in the cases of Blake and Ors. v. The Attorney General and Madigan v. The Attorney General 1981 I.L.R.M.34. In its judgment in those cases this Court declared Parts II and IV of the Rent Restrictions Act, 1960(as amended) to be invalid having regard to the provisions of the Constitution. The Court's conclusion was that the rent control and certain other provisions contained in that Act were so restrictive,intrusive and unfair as to constitute an unjust attack on landlords' property rights. The Court found that the then impugned legislation

"applied only to some houses and dwellings and not to others, that the basis for the selection is not limited to the needs of tenants, to the...