Norris v Attorney General

• Jurisdiction: Ireland
• Judge: O'HIGGINS C.J.,Henchy J.,McCARTHY J.
• Judgment Date: 01 January 1984
• Docket Number: [1977 No. 5793P],(278/80)
• Court: Supreme Court
• Date: 01 January 1984

NORRIS v. A.G.

NORRIS

v

THE ATTORNEY GENERAL

HIGH - 1977/5793P - McWILLIAM - 10.10.81.

1983 WJSC-SC 763

O'Higgins C.J.

Finlay P.

Henchy J.

Griffin J.

McCarthy J.

(278/80)

THE SUPREME COURT

Subject Headings:

CONSTITUTION: statute

HUMAN RIGHTS: european convention

1 JUDGMENT delivered the 22nd day of April 1983by O'HIGGINS C.J. [FINLAY & GRIFFIN CONCURRED]

2 In these proceedings the Plaintiff seeks a declaration that Sections 61 and 62 of the Offences Against the Person Act 1861 (the 1861 Act) and Section 11 of the Criminal Law (Amendment) Act 1885 (the 1885 Act) are inconsistent with the Constitution and were therefore not continued in force by Article 50 thereof and do not form part of the law of the State. His claim, having been considered and rejected in the High Court, has been brought to this Court by way of appeal.

The impugned legislation

3 The legislation which the Plaintiff challenges provides for the criminalisation and punishment of sexual acts and conduct of a kind usually regarded and described as abnormal or unnatural. Section 61of the 1861 Act, as amended, deals with the offence of buggery committed with mankind or an animal, and provides a maximum penalty of penal servitude for life. Section 62 of the same Act deals with associated offences, such as attempts and assaults for the purpose of committing buggery, and specifically covers indecent assaults on a male person. A maximum penalty of two years' imprisonment is provided. Section 11 of the 1885 Act provides as follows:

"Any male person who, in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be liable at the discretion of the Court to be imprisoned for any term not exceeding two years, with or without hardlabour."

4 It is to be noted that the offences dealt with in Sections 61 and 62 of the 1861 Act can, in relation to mankind, be committed with or upon a male or female person, but can only be committed by a male.It is also to be noted that the offence dealt with in Section 11 of the 1885 Act only applies to male persons, that the Section applies irrespective of the ages of the male persons involved and irrespective of whether the act is committed in public or private or with or without consent. While the impugned legislation does not expressly deal with homosexual practices and conduct it is accepted that the effect of the three Sections taken together is to prohibit and criminalise such conduct between male persons. No similar prohibition exists in relation to such practices and conduct between females.

The relevant facts

5 The Plaintiff is now and has been, since 1967, a lecturer in English at Trinity College, Dublin. He is aged 38 and is unmarried. Although born in Leopoldville, in the former Belgian Congo, he is an Irish citizen. He has asserted in his Statement of claim and in evidence that he is congenitally and irreversibly homosexual in outlook and disposition,that he is neither sexually attracted to nor has he any interest in women, that he desires a sexual relationship based on his congenital orientation and that for him any heterosexual relationship, such as that of marriage, in not open or possible. He claims that at an early age his realisation of his own feelings and disposition, and, a growing awareness of public attitudes and of the state and sanctions of the criminal law, not only caused him considerable anxiety and distress, but also led to a profound nervous illness which required protracted medical care and counselling. When he recovered from his illness, he decided to declare himself publicly as a homosexual and, with other homosexual men and women, formed an association known as the Irish Gay Rights Movement, of which he became chairman. In this capacity he was interviewed on television and was given an opportunity to explain the aims and activities of the movement. He is at present involved in two similar organisations - The National Gay Federation and The Committee forHomosexualLaw Reform. Although known to be a homosexual and to have indulged in homosexual activities, he has never been prosecuted, nor have any of the members of the organisations with which he is or has been associated. He has, however, had the experience, some time in 1976, of his cross-Channel mail being opened by the authorities, but this does not appear to have been continued.

6 This action has been brought by him as an individual citizen. It is not a representative action nor one brought on behalf of the organisations or groups with which he is identified, although the fact of the existence of such groups and of people with similar dispositions, feelings and outlooks may be relevant. It is as a personal litigant seeking the relief claimed that the Plaintiff's rights and standing in bringing this action fall to be considered.

Courts not empowered to reform the law

7 In the course of his evidence at the trial, the Plaintiff, on many occasions, made it clear that his purpose, in the meetings he attended, the interviews he gave and in the organisations with which he is associated, is to achieve a reform of the law by the decriminalisation of certain homosexual activities. He indicated in evidence the reforms and changes which he wished to achieve, which would provide protection for the young and incapacitated, but would free from all criminal sanctions homosexual conduct carried out in private between consenting male adults. Lest it be thought that this Court could or should consider the merits of such proposed reforms or express any view thereon, I desire to make it clear that such is not and can never be a function of this Court. The sole function of this Court, in a case of this nature, is to interpret the Constitution and the law and to declare with objectivity and impartiality the result of that interpretation on the claim being considered. Judgesmay, and do share with other citizens, a concern and interest in desirable changes and reform in our laws, but, under the Constitution, they have no function in achieving such by judicial decision. It may be regarded as emphasising the obvious but, nevertheless, I think it proper to remind the Plaintiff and others interested in these proceedings that the sole and exclusive power of altering the laws of Ireland is, by the Constitution, vested in the Oireachtas. The Courts declare what the law is - it is for the Oireachtas to make changes if it so thinksproper.

Issue whether challenged legislation was continued in force by the Constitution when enacted in 1937

8 In this case we are concerned only with the question whether the items of legislation, which are challenged in these proceedings, have, in whole or in part, been carried over or re-enacted into our corpusiuris by the People when they enacted the Constitution in 1937. Whether they have been so re-enacted depends on whether they passed the tests prescribed by Article 50which is in the following terms:

"Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in Saorstat Eireann 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."

9 The purpose of the Article is to continue in force the laws which had previously operated in Saorstat Eireann, with as few exceptions as possible. The phrase "subject to the Constitution" indicates an obvious requirement that in order to be operable in the new State such laws must fit into the framework of and be controlled by the Constitution. If, by the nature of their provisions, this were not possible, such laws, on that account alone, could not be continued. Subject to the Constitution in that sense, such laws are to continue to be of full force and effect "to the extent to which they are not inconsistent therewith". If the Article hadprovided that such laws would continue to be of full force and effect "to the extent to which they are consistent with the Constitution" would it have the same meaning and effect? In my view, it clearly would not. In such circumstances, consistency would have to be proved and in the absence of such proof the law or laws would be inoperative. However, according to the actual words used in the Article, the law or laws in question operate unless inconsistency is established and the onus of establishing such is placed on the person who challenges their continued validity. This is not to say that such pre-Constitution laws enjoy any presumption of consistency or constitutionality. They do not. Each such law must be examined to see what it purports to authorise or permit. If on such examination it emerges that the law permits what the Constitution prohibits or forbids what the Constitution sanctions, then inconsistency is established, and to the extent thereof the law would be declared to haveceased to have effect on the coming into operation of theConstitution.

10 While this case is concerned with legislation passed, not by the Oireachtas of Saorstat Eireann, but by the British Parliament, it has proceeded on the basis that such legislation survived the foundation of the State in 1922 and was in force as part of the laws of Saorstat Eireann immediately prior to the coming into operation of the Constitution. Accordingly, the question is whether it was continued under Article 50. If on examination of such legislation now, in the light of the Constitution as it has been interpreted and understood since its enactment, inconsistencies are established, such legislation, to the extent thereof, must be held not to have been so continued. To achieve this result, however, the Plaintiff must show that such inconsistencies exist. It is not sufficient to show...