The Equal Status Bill, 1997

• Jurisdiction: Ireland
• Judgment Date: 19 June 1997
• Neutral Citation: 1998 WJSC-SC 6878
• Date: 19 June 1997
• Docket Number: [S.C. No. 156 of 1997],156/97
• Court: Supreme Court

1998 WJSC-SC 6878

THE SUPREME COURT

HAMILTON C.J.

O'FLAHERTY J.

DENHAM J.

BARRINGTON J.

KEANE J.

156/97

(IN THE MATTER OF) EQUAL STATUS BILL 1997

IN THE MATTER OF ARTICLE 26 OF THE CONSTITUTION OF IRELAND

AND

IN THE MATTER OF THE EQUAL STATUS BILL, 1997

Citations:

EQUAL STATUS BILL 1997 S71

CONSTITUTION ART 26.2.1

CONSTITUTION ART 26

EMPLOYMENT EQUALITY BILL 1996 S15

CONSTITUTION ART 38.1

CONSTITUTION ART 40.1

EMPLOYMENT EQUALITY BILL 1996, IN RE UNREP SUPREME 15.5.1997

EQUAL STATUS BILL 1997 S40(3)

EMPLOYMENT EQUALITY BILL 1996 S63(3)

CONSTITUTION ART 13.3.1

CONSTITUTION ART 25.1

CONSTITUTION ART 25.4

CONSTITUTION ART 26.1.3

EQUAL STATUS BILL 1997 S2

EQUAL STATUS BILL 1997 S22

EMPLOYMENT EQUALITY BILL 1996 S38(4)

EMPLOYMENT EQUALITY BILL 1996 S38(5)

EQUAL STATUS BILL 1997 PART III

EMPLOYMENT EQUALITY BILL 1996 S38

EMPLOYMENT EQUALITY BILL 1996 S38(2)

EMPLOYMENT EQUALITY BILL 1996 S38(4)

EQUAL STATUS BILL 1997 S23

EQUAL STATUS BILL 1997 S24

EQUAL STATUS BILL 1997 S25

EQUAL STATUS BILL 1997 S26

EQUAL STATUS BILL 1997 S27

EQUAL STATUS BILL 1997 S28

EQUAL STATUS BILL 1997 S29

EQUAL STATUS BILL 1997 S30

EQUAL STATUS BILL 1997 S31

EQUAL STATUS BILL 1997 S32

EQUAL STATUS BILL 1997 S33

EQUAL STATUS BILL 1997 S34

EQUAL STATUS BILL 1997 S35

EQUAL STATUS BILL 1997 S36

EQUAL STATUS BILL 1997 S37

EQUAL STATUS BILL 1997 S38

EQUAL STATUS BILL 1997 S39

EQUAL STATUS BILL 1997 S40

EQUAL STATUS BILL 1997 S41

EQUAL STATUS BILL 1997 PART IV

EQUAL STATUS BILL 1997 S42

EMPLOYMENT EQUALITY BILL 1996 S38(1)

EMPLOYMENT EQUALITY ACT 1977

EQUAL STATUS BILL 1997 S40(3)

EQUAL STATUS BILL 1997 S70

CONSTITUTION ART 26.1.1

HOUSING (PRIVATE RENTED DWELLINGS) BILL 1981, IN RE 1983 IR 181

MATRIMONIAL HOME BILL 1993, IN RE 1994 IR 305

CONSTITUTION ART 15.4.1

CONSTITUTION ART 13.3.1

Synopsis:

Constitutional Law

Article 26 reference- constitutionality of Bill- certain provisions of Bill dependant upon enactment into law of Employment Equality Bill- ss. 40(3) and 71 of Equal Status Bill similar in terms to ss.63(3) and 15 of Employment Equality Bill which was found repugnant- whether Court not withstanding repugnancy of these two sections, obliged to consider constitutionality of remaining provisions of Bill- presumption of constitutionality- different circumstances to be considered - Held: Bill found unconstitutional- ss. 40(3) and 71 found repugnant- futile for Court to consider constitutionality of remaining provisions - (Supreme Court: Hamilton C.J., O'Flaherty J., Denham J., Barring ton J., Keane J. - (* Decision of the Court delivered by Hamilton C.J.) - 19/06/1997)

|Equal Status Bill 1997, In re|

1 The decision of the Supreme Court on the Reference to it by the President of the Equal Status Bill, 1997 pronounced pursuant to Article 26, section 2, sub-s. 1 of the Constitution of Ireland on the 19th day of June, 1997 .

The Reference

2 By order given under her hand and seal on the 7th day of May 1997, the President, Mary Robinson, after consultation with the Council of State, in pursuance of the provisions of Article 26 of the Constitution, referred the Equal Status Bill, 1997 (hereinafter referred to as the Bill) to the Supreme Court for a decision on the question as to whether the said Bill or any provision or provisions thereof is or are repugnant to the Constitution or to any provision thereof.

Proceedings on the Reference

3 Counsel were assigned by the Court to argue that the Bill is repugnant to the Constitution.

4 Prior to the oral hearing, counsel assigned by the Court presented in writing heads of the argument intended to be made by them and submissions of law in support of such arguments.

5 These were replied to in writing on behalf of the. Attorney General together with submissions of law on his behalf.

6 At paragraph 3.2.1 of the submissions filed on behalf of the Attorney General it is stated that:

"Section 71 of the Bill, which provides, inter alia, for vicarious liability of employers in relation to criminal offences, is in similar terms to section 15 of the Employment Equality Bill, 1996. The latter provision has been held to be repugnant to Articles 38.1 and 40.1 of the Constitution in the decision of the Court in Re The Employment Equality Bill 1996. It is accepted by reason of that decision of the court [that] section 71 of the Bill appears repugnant to Articles 38.1 and 40.1."

7 In paragraph 3.2.2 of the written submission it is stated that:-

"Section 40(3) of the Bill is in similar terms to the provisions of section 63(3) of The Employment Equality Bill.This relates to the admission as evidence in a criminal prosecution of facts in a document certified by the Director. The Court has held that section 63(3) of The Employment Equality Bill is repugnant to Article 38.1 of the Constitution and it appears the decision of the Court in relation to section 40(3) of the Bill must be the same."

8 In paragraph 3.3.1 of the written submissions, it is submitted on behalf of the Attorney General that:-

"having regard to the conclusion of the Court as to its obligations under Article 26 upon such a reference in its decision in Re The Employment Equality Bill, 1996, the Court should now consider, not withstanding the repugnancy of section 40(3) and 71, all the other provisions of the Bill, and in particular those which have been impugned by counsel assigned by the Court and give its decision upon the constitutionality of such provisions."

9 The Court considered that, in these circumstances, the procedure it should adopt was to hear at the outset arguments on behalf of the Attorney General in support of the submission that, notwithstanding the concession in paragraphs 3.2.1 and 3.3.3 of the written submissions that section 71 and section 40(3) appear to be repugnant to the Constitution, the Court should consider all the other provisions of the Bill, and in particular those which had been impugned by counsel assigned by the Court, and give its decision upon the constitutionality of such provisions.

10 On the 10th and 11th days of May, 1996, the Court heard oral submissions on this issue from counsel on behalf of the Attorney General and counsel assigned by the Court and at the conclusion of such oral submissions reserved its judgment.

Problems with regard to the Equal Status Bill, 1997

11 The aforesaid approach was adopted by the Court because of certain inherent and obvious difficulties which arose in connection with the Bill.

12 This Bill was passed by the Oireachtas on the 29th day of April 1997 at a time when The Employment Equality Bill, 1996 had not been signed by the President in accordance with the provisions of Article 13.3.1 of the Constitution but had by order given under her hand and seal on the 3rd day of April 1997 been referred to the Supreme Court for a decision on the question as to whether The Employment Equality Bill or any provision or provisions thereof were repugnant to the Constitution or to any provision thereof. The signature of the President is an absolute requirement before a Bill passed by both Houses of the Oireachtas is enacted into law.

13 Article 13.3.1 of the Constitution provides that:-

"Every Bill passed or deemed to have been passed by both Houses of the Oireachtas shall require the signature of the President for its enactment into law."

14 Article 25.1 of the Constitution provides that:-

"As soon as any Bill......., shall have been passed or deemed to have been passed by both Houses of the Oireachtas, the Taoiseach shall present it to the President for his signature and for promulgation by him as a law in accordance with the provisions of this Article."

15 Article 25.4 provides :-

16 2 "1. Every Bill shall become and be law as on and from the day on which it is signed by the President under this Constitution, and shall, unless the contrary intention appears, come into operation on that date.

17 2. Every Bill signed by the President under this Constitution shall be promulgated by him as a law by the publication by his direction of a notice in the Iris Oifigiúil stating that the Bill has become law.

18 Article 26.1.3 of the Constitution provides that:-

"The President shall not sign any Bill the subject of a reference to the Supreme Court under this Article pending the pronouncement of the decision of the Court."

19 Article 26.3.1. provides that

"In every case in which the Supreme Court decides that any provision of a Bill the subject of a reference to the Supreme Court under this Article is repugnant to this Constitution or to any provision thereof the President shall decline to sign such Bill."

20 Notwithstanding these provisions, and the situation created thereby, the Oireachtas passed the Equal Status Bill, 1997 which Bill presumed that the terms of the Employment Equality Bill 1996 had been enacted into law.

21 The Court pronounced its decision on the reference of the Employment Equality Bill, 1996 on the 15th day of May 1997.

22 The Bill contains numerous references to the Employment Equality Act, 1997 when, in fact, no such Act existed at the time of the passing of the Bill because it had not been signed by the President or exists, because the Supreme Court having decided that certain provisions were repugnant to the Constitution the said Bill was not signed by the President.

23 It is unfortunate that the Oireachtas passed the Bill, at a time when the Employment Equality Bill, 1996 had been referred by the President to the Supreme Court for a decision as to whether it or any provision of it was repugnant having regard to the terms of the Constitution, because the Bill and the Employment Equality Bill 1996 were inextricably linked; the Bill contained two sections viz. sections 40(3) and section 71 which were, in all material terms, similar to the provisions of sections 63(3) and section...