Judicial Review of Laws

Cases

 

Finn v. The Attorney General

[1983] IR 154
Barrington J. 157
H.C.

Barrington J.
20th July 1983

The plaintiff is a solicitor and resides at Kings Square, Mitchelstown in the county of Cork. In this action he seeks a declaration that the proposal contained in the Eighth Amendment of the Constitution Bill, 1982, is repugnant to the Constitution and is of no legal force and effect. He also seeks an injunction restraining the Minister for the Environment, the first defendant, from holding a referendum on the proposed amendment. Initially the plaintiff applied to the Court by motion for an interlocutory injunction. That motion was heard by me on the 12th July, 1983. On the same date the defendants filed their defence and, by agreement between the parties, the plaintiff withdrew his application for an interlocutory injunction and the entire action was heard by me on the 12th and 13th July, 1983.
The plaintiff’s case is that the proposed referendum is superfluous and not permitted by the Constitution because the right to life of the unborn child (which the amendment seeks to insert in, and have protected by, the Constitution) is already in the Constitution and protected by it. The plaintiff puts the matter as follows in his statement of claim:
“(2) On or about the 26th day of May, 1983, a Bill expressed to be ‘The Eighth Amendment to the Constitution Bill 1983’, was passed by both houses of the Oireachtas.
(3) In purported pursuance of the requirements of Article 46, sub-Article 4, of the Constitution, the said Bill contains a proposal in the words following: ‘The State acknowledges the right to life of the unborn, and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.’
(4) Article 40, sub-Article 3.2, of the Constitution provides as follows: ‘The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.’
(5) The said Article 40, sub-Article 3.2, of the Constitution asserts:

(a) the constitutional right to life itself and the right to have human life guarded against all threats directed to its existence whether before or after birth, and
(b) the constitutional right of the unborn to be born.
(6) Article 46, sub-Article 1, of the Constitution provides: ‘Any provision of this Constitution may be amended, whether by way of variation, addition, or repeal, in the manner provided by this Article.’
(7) The said working of the said proposal, as set out in paragraph 3 hereof, fails to comply with the requirements of the said Article 46, sub-Article 1, and accordingly the said proposal contained in the said Bill is repugnant to the provisions of the Constitution and of no legal force and effect.”
Mr. Mackey, who appeared for the plaintiff, submitted that unborn children are already fully protected in Irish law. Section 58 of the Offences Against the Person Act, 1861, makes any attempt to procure an abortion a criminal offence punishable with penal servitude for life. The civil law also gives certain limited protection to the child in its mother’s womb. For instance s. 58 of the Civil Liability Act, 1961, provides: “For the avoidance of doubt it is hereby declared that the law relating to wrongs shall apply to an unborn child for his protection in like manner as if the child were born, provided the child is subsequently born alive.” What is more important, Mr. Mackey points to certain judicial dicta which indicate that the unborn child enjoys constitutional protection. For instance, in McGee v. The Attorney General 1 Mr. Justice Walsh said at p. 312 of the report: “On the other hand, any action on the part of either the husband and wife or of the State to limit family sizes by endangering or destroying human life must necessarily not only be an offence against the common good but also against the guaranteed personal rights of the human life in question.” In the same case Mr. Justice Griffin ((at p. 335) referred indirectly to the subject of abortion when he stated: “In this context, I wish to emphasise that this judgment is confined to contraceptives as such; it is not intended to apply to abortifacients, though called contraceptives, as in the case of abortifacients entirely different considerations may arise.”
Mr. Justice Walsh returned to the same subject in G. v. An Bord Uchtála 2 when, in the course of his judgment, he stated at p. 69 of the report:
“Not only has the child born out of lawful wedlock the natural right to have its welfare and health guarded no less well than that of a child born in lawful wedlock, but a fortiori it has the right to life itself and the right to be guarded against all threats directed to its existence whether before or after birth. The child’s natural rights spring primarily from the natural right of every individual to
life, to be reared and educated, to liberty, to work, to rest and recreation, to the practice of religion, and to follow his or her conscience. The right to life necessarily implies the right to be born, the right to preserve and defend (and to have preserved and defended) that life, and the right to maintain that life at a proper human standard in matters of food, clothing and habitation. It lies not in the power of the parent who has the primary natural rights and duties in respect of the child to exercise them in such a way as intentionally or by neglect to endanger the health or life of the child or to terminate its existence. The child’s natural right to life and all that flows from that right are independent of any right of the parent as such.”
Mr. Justice Walsh then repeated the passage which I have quoted from his judgment in the McGee Case .1
More recently, in Norris v. The Attorney General 3 Mr. Justice McCarthy referred with approval to the passages I have quoted and stated his own view (on the constitutional protection of the rights of the unborn child) in this passage from his judgment: “It is not an issue that arises in the instant case, but it may be claimed that the right of privacy of a pregnant woman would extend to a right in her to terminate a pregnancy, an act which would involve depriving the unborn child of the most fundamental right of allthe right to life itself. I recognize that there has been no argument in the instant case relevant to such an issue, but nothing in this judgment, express or in any way implied, is to be taken as supporting a view that the provisions of s. 58 of the Act of 1861, making it a criminal offence to procure an abortion, are in any way inconsistent with the Constitution . . . For myself I am content to say that the provisions of the preamble [to the Constitution] which I have quoted earlier in this judgment would appear to lean heavily against any view other than that the right to life of the unborn child is a sacred trust to which all the organs of government must lend their support.”
A difficulty for this line of interpretation may arise from the fact that in many places the Constitution of Ireland, 1937, refers to the rights of the”citizen” rather than to the rights of the person. For instance Article 40, s. 3, of the Constitution refers to the personal rights of the citizen, and places on the State the duty of protecting the life of “every citizen.” On the other hand, it is arguable that the term “citizen” is used in different senses in different parts of the Constitution. For instance, Article 9, which deals with the acquisition and loss of Irish citizenship, clearly uses the term “citizenship”in the artificial or legal sense which denotes the privileges which attach to membership of a particular political community. An unborn child is not a citizen in this sense. On the other hand, Articles 40 to 44 (inclusive) are in a section of the Constitution which is headed “Fundamental Rights.” Article 40 is headed “Personal Rights.” It is arguable that these rights derive not from a man’s citizenship but from his nature as a human being. The State does not create these rights, it recognises them, and promises to protect them.
The French Declaration of Rights, 1789, is entitled “Declaration of the Rights of Man and the Citizen”. Sometimes the citizen is referred to in the body of the text, but article 1 opens with the statement:”Men are born and remain free and equal . . .” A similar switching of gear can be discovered in Articles 40 to 44 of the Constitution. Articles 41, 42 and 43 recognise that man has certain rights which are antecedent and superior to positive law. By doing so, the Constitution accepts that these rights derive not from the law but from the nature of man and of society, and guarantees to protect them accordingly. If man has any natural rights, the right to life must be among them.
The fact that the wording of Article 40, s. 3, commits the State to protect and vindicate the life of “every citizen” does not justify the inference that it relieves the State of the obligation to defend and vindicate the lives of persons who are not citizens. This is because the whole scheme of moral and political values which are clearly accepted by the Constitution indicates otherwise. In McGee v. The Attorney General 1 Mr. Justice Walsh stated the matter as follows at p. 310 of the report: “Articles 40, 41, 42 and 44 of the Constitution all fall within that section of the Constitution which is titled ‘Fundamental Rights.’ Articles 41, 42 and 43 emphatically reject the theory that there are no rights without laws, no rights contrary to the law and no rights anterior to the law. They indicate that justice is placed above the law and acknowledge that natural rights, or human rights, are not created by law but that the Constitution confirms their existence and gives them protection.” In The State (Nicolaou) v. An Bord Uchtála 17 the Supreme Court expressly left open the question of whether a foreigner could invoke the Constitution to attack the validity of an Act of the Oireachtas; that question does not arise in the present case.
On the basis of the authorities opened to me by Mr. Mackey, and in the light of the above reasoning, I would have no hesitation in holding that the unborn child has a right to life and that it is protected by the Constitution.
Mr. Geoghegan, on behalf of the defendants, does not dispute Mr. Mackey’s submission that the Constitution protects the life of the unborn child; neither does he submit that the Constitution does protect the life of the unborn child. He joins issue with Mr. Mackey at a later stage of Mr. Mackey’s argument.
Mr. Mackey, having established that the Constitution protects the life of the unborn child, submits that the proposed referendum is not only unnecessary but is constitutionally impermissible. He bases this submission on his parsing of Article 46, s. 1, of the Constitution. That section states:”Any provision of this Constitution may be amended, whether by way of variation, addition, or repeal, in the manner provided by this Article.” Mr. Mackey submits that this means that the Constitution can be amended only by a variation, an addition, or a repeal; and that the proposed amendment is none of these.
Mr. Geoghegan disputes that interpretation of Article 46; but his main submission is that the Court has no power to examine, or to attempt to construe, the proposal contained in the Bill or to consider whether it is, or is not, in conformity with the Constitution. It is no function of the High Court, he submits, to construe Bills or to decide whether they are, or are not, repugnant to the Constitution. The High Court has power under Article 34 to consider the question of the validity of any post-Constitution statute having regard to the provisions of the Constitution. It has power to consider whether any pre-Constitution statute is, or is not, consistent with the Constitution and whether it was, or was not, carried forward by Article 50 of the Constitution: see The State (Sheerin) v. Kennedy .13 But it has no power to consider whether a Bill is, or is not, repugnant to the Constitution. Only the Supreme Court can do that and then only when the matter is properly referred to it by the President under Article 26 of the Constitution. But Article 26 specifically exempts (from the power of the President to refer Bills to the Supreme Court) a Bill “expressed to be a Bill containing a proposal to amend the Constitution.” The logic of this seems obvious, for the Bill, being a Bill to change the Constitution, may well contain a proposal which conflicts with something already in the Constitution. To ask the Supreme Court to enquire whether the Bill was or was not “repugnant” to the existing provisions of the Constitution would be a futile exercise.
Mr. Geoghegan goes further and says that the Courts have simply no function so far as the content of the proposal to amend the Constitution is concerned. Likewise, the President’s role in a referendum appears to be concerned with the propriety of the procedure being followed rather than with the content of the proposal being placed before the people.
The President’s duty in relation to a referendum on a proposal to amend the Constitution is described in Article 46, s. 5, of the Constitution as follows: “A Bill containing a proposal for the amendment of this Constitution shall be signed by the President forthwith upon his being satisfied that the provisions of this Article have been complied with in respect thereof and that such proposal has been duly approved by the people in accordance with the provisions of section 1 of Article 47 of this Constitution and shall be duly promulgated by the President as a law.”
It is necessary to refer also to Article 46, s. 4, which provides: “A Bill containing a proposal or proposals for the amendment of this Constitution shall not contain any other proposal.” It is extremely unlikely that the Houses of the Oireachtas would abuse their powers by attempting to incorporate some other proposal with a proposal to amend the Constitution.
Apparently, such a possibility was present to the minds of the framers of the Constitution and, therefore, it cannot be dismissed. Mr. Geoghegan submits that in such an eventuality the President could refer the Bill to the Supreme Court under Article 26 of the Constitution. However, the President would not appear to have the power to refer the Bill to the Supreme Court if the Bill were to be “expressed” to be a Bill to amend the Constitution. In such an event, were the proposal which was contained in the Bill supported by a majority of the people at a referendum, the procedure prescribed by Article 46 of the Constitution would not have been followed and it would appear that the President would be justified under Article 46, s. 5, of the Constitution in refusing to sign the Bill.
Mr. Mackey, however, submits that the Courts too have a duty to uphold the Constitution and that, upon a complaint being properly made that the Houses of the Oireachtas had acted in contravention of Article 46, s. 4, of the Constitution by incorporating other proposals in a Bill to amend the Constitution, the Courts would be justified in examining the Bill and taking appropriate action. Subject to this possible exception, I accept Mr. Geoghegan’s submission that the High Court has no function in relation to the content of a proposal to amend the Constitution. Certainly it is not concerned with the propriety or wisdom of any such proposal, nor has it any power to restrain the two Houses of the Oireachtas from putting any such proposal before the people.
Much time was spent at the hearing in debating the separation of powers contemplated by Articles 15, 28 and 34 of the Constitution, and Mr. Mackey stressed the independence and powers of the judiciary. But it appears to me that this case is concerned not with those issues but with the exercise by the people of the power which they have reserved to themselves to amend the Constitution when invited to do so by the two Houses of the Oireachtas. I agree with what Miss Justice Carroll said on this subject in her recent decision in Roche v. Ireland 7 when she referred to a referendum as a”solemn process of legislation” and where she drew the analogy with the decision of the Supreme Court in Wireless Dealers Association v. Fair Trade Commission .8 Article 6 of the Constitution contemplates the establishment of certain organs of governmentlegislative, executive and judicial; but it also refers to the residual powers which the people reserve to themselves “in final appeal, to decide all questions of national policy, according to the requirements of the common good.” Mr. Geoghegan referred me to a passage in the judgment of Budd J. in Byrne v. Ireland 15 which appears at p. 295 of the report and which reads as follows:
“This Constitution was passed by the Oireachtas and submitted to the People in a referendum; it was enacted by the People on the 1st July, 1937, and came into operation as and from the 29th December, 1937. It can now only be amended by way of a referendum by a decision of the People. Therefore, the Constitution and its form are the creation of the People and depend upon the will of the People both for its existence and the determination of its form from time to time by way of the referendum provided for by Articles 46 and 47 of the Constitution. The State is, in its turn, recognised by the Constitution. Its powers and obligations are determined by it. It is thus to be seen that it is the People who are paramount and not the State.”
Mr. Mackey’s submission requires the restrictive interpretation which he seeks to place on the people’s power to amend the Constitution. Mr. Mackey contends that the Constitution can be amended by way of variation, addition, or repealbut not otherwise. If, he contends, the rights of the unborn child are already implicitly protected by the Constitution, it is not open to the people to amend the Constitution by making that protection explicit. When the people provided that the Constitution could be amended”whether by way of variation, addition, or repeal,” I very much doubt if they intended to restrict their powers in this manner.
Mr. Geoghegan initially placed some reliance on the use in Article 46, s. 1, of the word “whether” as indicating that the people were merely giving illustrations of a general power of amendment. Curiously enough, there does not appear to be any word in the Irish text of the Constitution corresponding to the word “whether.” But I am quite satisfied that Mr. Geoghegan is right when he contends that the reference to “variation, addition, or repeal” is meant to illustrate the wide scope of the power of amendment rather than to restrict it. Article 50 of the Constitution of Saorstát Éireann ,1922, provided simply for “amendments of this Constitution.” In The State (Ryan) v. Lennon 9 the contention was put forward (at p. 185) by counsel that the power of “amendment” in article 50 of the Constitution of 1922 did not extend to a power of repeal but meant merely a power to improve, to vary in detail or to remedy defects. While that submission was rejected by the former Supreme Court of Justice, the case and the problem would have been present to the minds of the drafters of the present Constitution and probably account for the wording of s. 1 of Article 46 of the Constitution. That The State (Ryan) v. Lennon 9 was present to the minds of the drafters of the present Constitution is illustrated by Article 51 of the transitory provisions to the Constitution which stated that the provision therein contained enabling the Constitution to be amended by simple legislation for a period of three years could not itself be amended under the provisions of that article. In other words, Article 51 of the Constitution was not to be amended in the way in which the Oireachtas had amended article 50 of the Constitution of 1922an amendment which the Supreme Court of Justice had held to be valid in The State (Ryan) v. Lennon .9
I am satisfied that by Article 46, s. 1, the people intended to give themselves full power to amend any provision of the Constitution and that this power includes a power to clarify or make more explicit anything already in the Constitution.
Finally, to succeed in his submission, Mr. Mackey would have to show that the proposed amendment, if accepted by the people, would not vary or affect the protection which I believe the Constitution presently gives to the unborn child. In deference to Mr. Geoghegan’s submission, which I accept, that it is generally no function of the Court to attempt to construe a Bill containing a proposal to amend the Constitution, I feel obliged to decline to attempt to construe the present proposal. I will say only that Mr. Mackey has failed to convince me that the present proposed amendment, if accepted by the people, will not change or vary the constitutional position of the unborn child as I have attempted to describe it earlier in this judgment.
For these various reasons I would dismiss this action.

 

Supreme Court

O’Higgins C.J.
26th July 1983

In these proceedings the plaintiff seeks a declaration that the proposal contained in the Eighth Amendment of the Constitution Bill, 1982, is repugnant to the Constitution of Ireland, 1937, and of no legal effect. The judicial power to review legislation on the ground of constitutionality is confined (save in cases to which Article 26 of the Constitution applies) to enacted laws. Save in these excepted cases, there is no jurisdiction to construe or to review the constitutionality of a Bill, whatever its nature. The Courts have no power to interfere with the legislative process. For this reason the plaintiff lacks standing to maintain these proceedings and has no cause of action. As these proceedings cannot be maintained, the Court should not find it necessary to consider the matters dealt with in the judgment of Mr. Justice Barrington. This appeal should be dismissed.

Walsh J.
I agree.

Henchy J.
I agree.

Griffin J.
I agree.

Hederman J.
I agree.

Kavanagh v. Governor of Mountjoy Prison

[2001] IEHC 77 (29th June, 2001)
THE HIGH COURT
2001 No. 840 SS
JUDGMENT of Finnegan J. delivered on the 29th day of June, 2001 .
1. This is an application for leave to apply for Judicial Review which pursuant to my direction is on notice.

THE FACTS
2. The circumstances giving rise to the application are as follows. The Applicant was charged with seven offences, one a scheduled offence under the Offences Against the State Act, 1939 and six non scheduled offences. Pursuant to the Offences Against the State Act, Section 47(1), the Director of Public Prosecutions directed that the Applicant’s trial on the scheduled offence should be before the Special Criminal Court and further in respect of the non scheduled offences pursuant to Section 47(2) of that Act certified his opinion as to the inadequacy of the ordinary Courts to secure the effective administration of justice and the preservation of public peace and order. This resulted in his been charged before the Special Criminal Court with all seven offences. The Applicant challenged the certificate of the Director of Public Prosecutions under the Offences Against the State Act 1939, Section 47(2) (but did not challenge the certificate under Section 47(1) thereof) by way of an application for Judicial Review which failed: See Joseph Kavanagh -v- The Government of Ireland and Others (1996) 1 IR 321. Thereafter on the 29th October, 1997 before the Special Criminal Court the Applicant was convicted of the offences and sentenced to terms of imprisonment of 12, 12 and 5 years on three offences the sentences to run from the 20th July, 1994, the date from which the Applicant had been in custody. The Applicant appealed to the Court of Criminal Appeal against the Special Criminal Courts refusal of leave to appeal and his application to that Court for leave to appeal was dismissed on the 18th May, 1999.

3. Shortly before the commencement of his trial before the Special Criminal Court the Applicant submitted a communication to the Human Rights Committee (“the Committee”) established under the International Covenant on Civil and Political Rights claiming violation of the following Articles of the Covenant: Article 2.1, Article 2.3(a), Article 4.1, Article 4.3, Article 14.1 with Article 14.3, Article 14.2 and Article 26. The communication was concerned with the operation in his case of the Offences Against the State Act 1939, Section 47(2). Ultimately the Committee communicated its views on the Applicant’s communication to the Applicant and to Ireland the views having been adopted on the 4th April, 2001. The relevant portion of the views is contained in paragraph 10.3 of the Committee’s communication in the following terms:-

“The Committee considers that the State party has failed to demonstrate that the decision to try the Author before the Special Criminal Court was based upon reasonable and objective grounds. Accordingly, the Committee concludes that the Author’s right under Article 26 to equality before the law and to equal protection of the law has been violated.”

THE PROCEEDINGS
4. Arising out of the views of the Committee the Applicant seeks leave to apply for the following reliefs by way of Judicial Review:-

1. An Order of Certiorari quashing his conviction by the Special Criminal Court on 29th October, 1997.
2. A declaration that Section 47(2) of the Offences Against the State Act 1939 (as construed by the Supreme Court) is incompatible with the United Nations Covenant on Civil and Political Rights and is accordingly repugnant to the Constitution in particular, Articles 29.2 and 3 thereof.
5. A number of other reliefs are also claimed but at this stage can be regarded as ancillary reliefs to those which I mention. The grounds relied upon by the Applicant are as follows:-

“Ireland is a high contracting party to the United Nations Covenant on Civil and Political Rights of 16th December, 1966 and by accepting that Covenant’s Optional Protocol of the same date Ireland accepted the authority of the Covenant Human Rights Committee to adjudicate on complaints against Ireland of a violation of the Convention. On 27th August, 1997 the Applicant complained to the Committee that his pending trial before the Special Criminal Court on 14th October, 1997 would contravene the Covenant on the grounds that the denial of a jury trial in the circumstances contravened his human right to equality before the law in the administration of criminal justice. In the course of proceedings (before the Committee) the State declined to proffer any good reason for the Director having certified on 15th July, 1994 that the ordinary Courts were inadequate to try the Applicant on the charges in question. On 4th April, 2001 the Human Rights Committee having carefully considered the complaint and the State’s response thereto adjudicated that the Applicant’s right to equality under Article 26 had been contravened and that he should be granted an effective remedy for such violation. He had been sentenced to 12 years and approximately 2 years remain to run of his sentence taking account of remission and temporary release. By virtue of Articles 29.2 and 3 of the Constitution as well as the doctrine of legitimate expectation as a matter of Irish (as well as International) law the Executive is obliged to respect that adjudication and grant the several reliefs sought herein”.

6. At the hearing of the application before me the Applicant sought to extend the scope of the same to bring within its ambit the provisions of the Offences Against the State Act 1939, Section 37(1). I am satisfied that this is unwarranted as the Committee was not asked to nor did it express a view within the meaning of the Covenant on the compatibility of that Section with the Covenant. Nor were they competent to do so: the Optional Protocol Article 5.2 provides that the Committee shall not consider any communication from an individual unless it is ascertained inter alia that the individual has exhausted all available domestic remedies and while the Applicant challenged the Director of Public Prosecutions’ certificate under the Offences Against the State Act, Section 47(2) by way of Judicial Review he did not challenge the Director’s direction under Section 47(1). In these circumstances there appears to me to be no basis upon which this application should be extended in the manner sought. Accordingly, I refuse leave to apply for Judicial Review for the reliefs sought insofar as it is sought to rely upon the Director of Public Prosecutions’ direction under the Offences Against the State Act, Section 47(1).

THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS
7. Ireland is a party to the Covenant. By the Covenant each State Party undertakes to respect and to ensure to all individuals within it’s territory and subject to it’s jurisdiction the rights recognised in the Covenant. Article 28 of the Covenant established a Human Rights Committee. Article 41 of the Covenant provides that a State Party to the same may declare under the Article that it recognises the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the Covenant. The Covenant thereafter provides the procedures to be adopted by the Committee to achieve a friendly solution of a matter communicated and failing this for the preparation of a report confined to a brief statement of the facts: the report is to have attached to it the written submissions and a record of the oral submissions made by the States Parties.

8. It the matter is not thereby resolved the Covenant provides for the appointment of a conciliation commission which in turn will make a report embodying it’s findings on all questions of fact and its views on the possibilities of an amicable solution of the matter which the States Parties may accept or not.

9. Ireland has also signed the Optional Protocol to the Covenant which enables the Committee to receive and consider communications from individuals claiming that they are victims of a violation by a State Party of any of the rights set forth in the Covenant. On receipt of a communication from an individual the Committee will obtain a written explanation or statement from the State Party. Having considered the complaint and any submissions thereon the Committee will forward it’s views to the State Party concerned and to the individual.

10. Neither the Covenant nor the Optional Protocol contain any provision for the enforcement of the solution contained in a report of the committee on a communication by a State Party, a report of the conciliation committee on a communication by a State party or the views of the Committee on a communication under the Optional Protocol by an individual, all of which appear to depend for their effect on their moral authority. However, Article 2. of the Covenant contains the following provisions at Article 2.2 and 2.3 –

2.2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognised in the present Covenant.
2.3. Each State Party to the present Covenant undertakes
(a) To ensure that any person whose rights or freedoms as herein recognised are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have the right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy:
(c) To ensure that the competent authorities shall enforce such remedies when granted.
11. As to the meaning to be ascribed to the term “views” in the Covenant, it appears from the travaux preparatoire that this term was preferred to the stronger terms “suggestions” and “recommendations”. Dominic McGoldrick in his work “ The Human Rights Committee” at page 151 says:-

“It is clear from the drafting work that the views of the HRC do not constitute a legally binding decision as regards the State Party concerned. In this respect the OP parallels the reports of the European Commission on Human Rights, and the supervision systems of the International Labour Organisation and under the European Social Charter. It contrasts markedly with the decisions of the European Court of Human Rights and the recommendations of the Committee of Ministers under the ECHR which are legally binding. There is no higher organ expressly authorised to review or supervise the implementation of the HRC’s views, so these remain the last word on the communication”.

12. I accept this. The views of the Committee do not constitute a legally binding decision.

13. As to the undertaking by States Parties to the Optional Protocol to provide an effective and enforceable remedy in case of a violation, it appears that the Committee regards itself as having a supervisory role. Thus, in communicating its views on the Applicants communication the Committee dealt with remedy as follows:-

“Bearing in mind that, by becoming a party to the Optional Protocol, Ireland has recognised the competence of the Committee to determine whether there has been a violation of the Covenant and that, pursuant to Article 2 of the Covenant, the State party has undertaken to ensure to all individuals within it’s territory and subject to it’s jurisdiction the rights recognised in the Covenant and to provide an effective and enforceable remedy in case a violation has been established, the Committee wishes to receive, within 90 days, information from the Government of Ireland about the measures taken to give effect of the Committee’s views. The State Party is requested also to give wide publicity to the Committee’s views.”

14. The views expressed by the Committee in the past on the appropriate remedy have included the following:-

1. To provide compensation to the victim.
2. To immediately release the victim.
3. To adjust the provisions of legislation in order to implement Covenant obligations.
4. To give the victim a fresh trial incorporating appropriate procedural guarantees.
15. However, the Committee considers that its role comes to an end with the communication of views. The Committee, however, takes an interest in any action by the State Party as a consequence of the Committee’s views under the Optional Protocol both in any action taken by the State party which concerns either the legal issues involved or the situation of the person concerned.

THE CONSTITUTION
16. The following provisions of the Constitution are relevant to the arguments raised by the Applicant on this application.

Article 15.4.1 The Oireachtas shall not enact any law which is in any respect repugnant to this Constitution or to any provision thereof.
Article 15.4.2 Every law enacted by the Oireachtas which is in any respect repugnant of this Constitution or to any provision thereof, shall, but to the extent only to such of such repugnancy, be invalid.
Article 29.2 Ireland affirms its adherence to the principle of the pacific settlement of international disputes by international arbitration or judicial determination.
Article 29.3 Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other States.
Article 29.6 No international agreement shall be part of the domestic law of the State, save as may be determined by the Oireachtas.

THE APPLICANT’S SUBMISSIONS
17. The Applicant’s submissions are threefold and are as follows:-

1. The Covenant is part of customary international law and so part of the Common Law and justiciable at the suit of the Plaintiff. The State having been found to be in breach of the Covenant by a competent judicial tribunal to whose determination it has submitted is bound by the determination of that tribunal. The Applicant having been convicted in breach of his Covenant rights is entitled as a matter of domestic law to have his Covenant rights vindicated.
18. The Covenant has not been incorporated in to domestic law by statute and, accordingly, the Constitution Article 29.6 applies. The Applicant however submits that the Covenant has been so widely accepted by the international community that it must now be regarded as part of customary international law: Accordingly by virtue of Article 29.3 it is incorporated in to Irish domestic law. I am satisfied however, that Article 29 has as its subject the relations between states only and, accepting the proposition that the Covenant in its entirety is part of Irish domestic law for the purposes of this application, cannot affect the rights of individuals. In Re: O’Laighleis (1960) IR 93 at page 124, Maguire C.J. says:-

“Clauses 1 and 3 of Article 29 of the Constitution clearly refer only to relations between states and confer no rights on individuals”.

19. This proposition applies equally to international law whether created by treaty or by convention or the source of which is customary international law. I am bound by this decision of the Supreme Court.

Further in Act Shipping (PTE) Limited -v- Minister for the Marine and Others (1995) 3 IR 407, Barr J. dealt with the relationship between Article 15.2.1 of the Constitution and customary international law. Speaking of Article 15.2.1 at page 412 he says:-
“As far as I am aware the implications of this provision have not been considered as yet by the Supreme Court or the High Court. It raises the question as to whether customary international law can become part of Irish domestic law otherwise than through the legislative power of the Oireachtas. In my opinion Article 15.2.1 of the Constitution does not inhibit the evolution of international customary law in to Irish domestic law. It relates to the “making” of laws for the State, which, it provides, is a power exclusively reserved to the Oireachtas. Customary law is not made in the sense envisaged by Article 15.2.1. Customary international law evolves from a practice or course of conduct which in terms become widely accepted. I am satisfied that this State subscribed to the international custom whereby innocent foreign commercial vessels in serious distress have a prima facie right to refuge in waters of an adjacent coastal state and that this customary right has long since merged in to Irish domestic law.
If the foregoing interpretation of Article 15.2 is not well founded in law, it seems to me that international custom in maritime law whereby a ship in serious distress is entitled to a safe refuge, is so long established as to be deemed to have been absorbed into Irish domestic law before the enactment of the Constitution in 1937. If it was already part of Irish domestic law when the constitution was enacted then Article 15.2 has no bearing on its validity.”

20. The second proposition of Barr J. can have no application in the present case the Covenant dating only from the 16th December, 1966.

21. As to the first proposition, accepting its correctness, it does not avail the Applicant. This point was clearly dealt with by the Supreme Court in Re: O’Laighlsis (1960) at page 124:-

“These provisions (The Constitution, Article 29.1 and 3), Mr. McBride submitted reproduced the pre-existing common law, and by the common law, he said those principles “which were commonly accepted as binding by civilised nations became part of the domestic law unless they could be shown to be contrary to it. He referred to the English authorities West Rand Central Gold Mining Company -v- Rex (1905) 2 KB 391, Chung Chi Cheung -v- The King (1939) AC 160. From the latter case he cited in particular this passage from the speech of Lord Atkin (at p. 167):-
“…so far, at any rate, as the Courts of this country are concerned, international law has no validity save insofar as its principles are accepted and adopted by our own domestic law. There is no external power that imposes its rules upon our own code of substantive law or procedure. The Courts acknowledge the existence of a body of rules which nations accept amongst themselves. On any judicial issue they seek to ascertain what the relevant rule is, and having found it, they will treat it as incorporated into the domestic law so far as it is not inconsistent with rules enacted by statutes or finally declared by their tribunals.”

Clauses 1 and 3 of Article 29 of the Constitution clearly refer only to relations between states and confer no rights on individual; they can in no way assist Mr. McBride’s argument.”

22. Further, Barr J. goes on to say

“If in the present case it can be established that, in the circumstances prevailing, the M.V. Toledo had a right (subject as aforesaid) to the benefit of a port or anchorage of refuge in Ireland by reason of an established usage or custom in international law, then that right is part of Irish domestic law and the State is answerable in its domestic Courts to the Plaintiff for unlawful failure to honour it.”

23. This proposition if it is that an individual can litigate such a right appears to me to be contrary to the statement of the law in Re: O’Laighleis. Article 29.1 and 3 refer only to relations between states and confer no rights on individuals. The same must be true of Article 29.2. The right found for by Barr J. must be justiciable only at the suit of the State in which the vessel concerned is registered. In these circumstances I am bound to follow the decision of the Supreme Court.

24. Finally, in relation to this submission, I am not satisfied that the views of the Committee can be said to be a judicial determination the expressions of views having the moral authority of the Committee but nothing more than that. The Committee is not a Court under the Constitution and without a constitutional amendment cannot affect the administration of justice in the Courts established under the constitution: Constitution Article 34.1.

2. The State by its adherence to the Covenant has undertaken pursuant to Article 2.3 thereof to provide an effective remedy to individuals whose Covenant rights have been violated. The views of the Committee that the Applicant’s Covenant rights have been violated is a binding judicial determination to that effect. An Order of Mandamus should therefore issue from this Court to compel the State to provide an effective remedy.
25. This submission must fail for the same reasons as the first. Even if the Covenant is part of Irish domestic law, the subject of international law is the State and not the individual: See O’Laighleis (1960) IR at 124. Such matters as are raised by the Applicant are not justiciable at the suit of an individual.

3. The Applicant submits that by ratifying the Covenant and Optional Protocol the State created a legitimate expectation that its executive and judicial branches would adhere to the Covenant’s requirements and that where the Committee communicates in its views a finding of a violation of a Covenant right the State would promptly take steps to enforce the right which has been violated and grant the victim redress.
26. The Applicant relies upon Fakih -v- The Minister for Justice (1993) 2 IR 406 and Gutrani -v- The Minister for Justice (1993) 2 IR 427.

In Webb -v- Ireland (1988) IR 353 at 384, Finlay C.J. dealt with legitimate expectation in the following terms:-
“It would appear that the doctrine of legitimate expectation sometimes described as reasonable expectation has not in those terms been the subject of any decision of our Courts. However, the doctrine connoted by such expressions is but an aspect of the well recognised equitable concept of promissory estoppel (which has been frequently applied in our Courts) whereby a promise or representation as to intention may in certain circumstances be held binding on the representor or promisor. The nature and extent of that doctrine in circumstances such as those of this case has been expressed as follows by Lord Denning in Amalgamated Investment and Property Company Limited -v- Texas Commerce Investment Bank Limited (1982) QB 84 at p. 122:-
“When the parties to a transaction proceed on the basis that an underlying assumption – either of fact or of law – and whether due to misrepresentation or mistakes makes no difference – on which they have conducted the dealings between them – neither of them will be allowed to go back on that assumption when it would be unfair or unjust to allow him to do so. If one of them does seek to go back on it, the Courts will give the other such remedy as the equity of the case demands.””

27. The Applicant in support of his claim to have a legitimate expectation relies upon a decision of the Australian High Court of Appeal, Minister of State for Immigration and Ethnic Affairs -v- Teoh (1994-1995) 183 CLR 273. The headnote to the report gives the finding of four of the five Judges in the following terms:-

“Although a convention ratified by Australia does not become part of Australian law unless its provisions have been validly incorporated into municipal law by statute, the ratification was an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision makers would act conformably with the convention. It is not necessary that a person seeking to set up such a legitimate expectation be aware of the convention or personally entertain the expectation. It is enough that the expectation is reasonable in the sense that there are adequate materials to support it.”

28. From the judgment it is clear that in Australian law an international treaty to which Australia is a party does not form part of Australian law unless those provisions have been validly incorporated into municipal law by statute. The position therefore would appear to correspond with that in the United Kingdom at common law: See Thakrar -v- Secretary of State for the Home Department (1974) 2 All E.R. 261. Specifically the Australian Courts are not constrained by any provision corresponding to the Constitution Article 29.6. In an Irish context the phrase “ absent statutory or executive indications to the contrary” must be expanded to have regard to constitutional indications. Bearing this in mind the true nature of the judgment is more readily understood when regard is had to the words used in context. As to context, I should first refer to the decision of McCracken J. in Abrahamson -v- Law Society of Ireland (1996) 1 IR 403, and the four principles which he therein sets out as reflecting the established law on legitimate expectation. The first two principles are relevant here:-

1. It is now well established in our law that the Courts will, as a general rule, strive to protect the interest of persons or bodies who have a legitimate expectation that a public body will act in a certain way.
2. In protecting those interests the Courts will ensure that where the expectation relates to a procedural matter the expected procedures will be followed.
The Teoh case relates to a procedural matter, namely whether the Defendant had a reasonable expectation that the Minister’s delegate in considering an application for resident status will act in conformity with the United Nations Convention on the Rights of the Child to which Australia was a party. In their judgment Mason C.J. and Dean J. held that the ratification of a convention is a positive statement by the Executive Government to the world and to the Australian people that the Executive Government and its agencies will act in accordance with the convention. That statement, they held, is adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision makers will act in conformity with the convention and it is unnecessary that a person seeking to set up such a legitimate expectation should be aware of the convention or should personally entertain the expectation it being sufficient that the expectation is reasonable in the sense that there are adequate materials to support it. They went on to say:-
“The existence of a legitimate expectation that a decision maker will act in a particular way does not neccessarily compel him or her to act in that way. That is the difference between a legitimate expectation and a binding rule of law. To regard a legitimate expectation as requiring the decision maker to act in a particular way is tantamount to treating it as a rule of law. It incorporates the provisions of an unincorporated convention into municipal law by the back door.”

29. They went on to hold that if the decision maker proposes to make a decision inconsistent with a legitimate expectation procedural fairness requires that the persons affected should be given notice and an adequate opportunity of presenting a case against the taking of such a course.

30. The judgments of Mason C.J. and Dean J. discussed the place of such a convention in Australian law having regard to the common law rule as to conventions which have not been incorporated in to municipal law. They accept that a statute has to be interpreted and applied, as far its language permits, so that it is in conformity and not in conflict with the established rules of international law. However this principle is no more than a cannon of construction and does not import the terms of the treaty or convention into municipal law as a source of individual rights and obligations. They expand on the limited relevance of a convention not incorporated into municipal law at page 288 –

“Apart from influencing the construction of a statute or subordinate legislation, an international convention may play a part in the development by the Courts of the common law. The provisions of an international convention to which Australia is a party, especially one which declares universal fundamental rights, may be used by the Courts as a legitimate guide in developing the common law. But the Courts should act in this fashion with due circumspection when the Parliament itself has not seen fit to incorporate the provisions of a convention into domestic law. Judicial development of the common law must not be seen as a back door means of importing an unincorporated convention into Australian law. A cautious approach to the development of the common law by reference to international conventions would be consistent with the approach which the Courts have hitherto adopted to the development of the common law by reference to statutory policy and statutory materials. Much will depend upon the nature of the relevant provision, the extent to which it has been accepted by the international community, the purpose which it was intended to serve and its relationship to the existing principles of our domestic law.”

31. I am satisfied that this decision is of no benefit to the Applicant here. Firstly, the Applicant here is not concerned with procedural fairness but rather is seeking from the Courts substantive protection for the Covenant right which he claims, that right having its origin in a convention which is not part of Irish domestic law. Secondly, and more fundamentally there can be no legitimate expectation of a substantive right which would conflict with the statute law of the State or the Constitution or with the well established principles of the common law. I am satisfied that the right claimed is in conflict with the Constitution Article 29.6 and with the common law as declared in Thakrar -v- Secretary of State for the Home Department . I unhesitatingly indorse the view of Mason C.J. and Dean J. that the judicial development of the common law must not be seen as a back door means of importing an unincorporated convention in conflict with the established common law rule that a convention unless validly incorporated into domestic law does not form part of the domestic law and a further rule that public international law does not confer substantive rights justiciable in the Courts of this jurisdiction upon individuals. A fortiori, the development of the common law must not be used as a device to circumvent the provisions of the Constitution Article 29.6 and 15.2.1.

32. It has been agreed between the parties that the appropriate test to be applied on this application is that contained in G. -v- DPP (1994) 1 IR 374. The Applicant must show an arguable case. With regard to the first two submissions to accede to the same would require that this Court disregard the decision of the Supreme Court in Re: O’Laighleis . With regard to the third submission, while the same would appear to find support on a reading of the headnote to the report in Minister for State for Immigration and Ethnic Affairs -v- Teoh a reading of the judgments clearly shows that this is not the case. In these circumstances I am satisfied that the Applicant has not satisfied the test of showing an arguable case laid down in G. -v- DPP . Accordingly, I refuse the Applicant leave to apply for Judicial Review.

Kavanagh v. Governor of Mountjoy Prison

[2002] IESC 13 (1st March, 2002)
THE SUPREME COURT
194/01
Keane C.J.
Denham J.
Hardiman J.
Geoghegan J.
FennellyJ.

JUDGMENT delivered the 1st day of March, 2002 by FENNELLY J. [Nem Diss.]
1. This is an appeal from the refusal of the High Court (Finnegan J) to grant to the appellant leave to apply for judicial review related to his conviction by the Special Criminal Court. The appellant relies on Ireland’s accession to the United Nations Covenant on Civil and Political Rights (“the Covenant”) and particularly on the views expressed by a Human Rights Committee under the Covenant about his conviction.
2. On 20th July 1994 the appellant was arrested and charged, by direction of the Director of Public Prosecutions, before the Special Criminal Court with seven offences relating to the kidnapping and imprisonment of a senior manager of a banking company. One of the offences, possession of a firearm with intent to commit an indictable offence, namely false imprisonment, was a scheduled offence for the purposes of the Offences against the State Act, 1939. The remainder, including false imprisonment, robbery, and demanding money with menaces were not scheduled offences.
3. Section 47 of the Offences against the State Act, 1939 provides as follows:
“47(1) Whenever it is intended to charge a person with a scheduled offence, the Attorney General may, if he so thinks proper, direct that such person shall, in lieu of being charged with such offence before a justice of the District Court, be brought before a Special Criminal Court and there charged with such offence and, upon such direction being so given, such person shall be brought before a Special Criminal Court and shall be charged before that Court with such offence and shall be tried by such Court on such charge.
(2) Whenever it is intended to charge a person with an offence which is not a scheduled offence and the Attorney-General certifies that the ordinary Courts are, in his opinion, inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to the trial of such person on such charge, the foregoing sub-section of this section shall apply and have effect as if the offence with which such person is so intended to be charged were a scheduled offence.
(3) (not relevant).”
4. On 15th July 1994, before the appellant was arrested and charged, the Director of Public Prosecutions, exercising the powers of the Attorney General, had given the certificate required by section 47(2). The appellant was, consequently, charged and tried before that court. Thus the Director of Public Prosecutions by the exercise of his powers under both subsections of section 47 ensured that the appellant was tried before the Special Criminal Court instead of the ordinary courts. That fact, in particular that he was denied a trial by jury, is at the core of his subsequent complaints.
5. The appellant unsuccessfully sought judicial review of the decision of Director of Public Prosecutions (see Kavanagh v Director of Public Prosecutions [1996] IR 321.) on a number of grounds including the failure of the state in the person of the Director of Public Prosecutions to respect his right of equal treatment before the law as guaranteed inter alia by the Constitution and the European Convention for the Protection of Human Rights and Fundamental Rights (hereafter “the European Convention”). His application for judicial review was rejected by Laffoy J in the High Court on 6th October 1995 and unanimously by this Court on 18th December 1996, principally on the ground that the decision of the Director of Public Prosecutions was not reviewable in the absence of mala fides.
6. The appellant was convicted by the Special Criminal Court on the 29th October 1997 of robbery, possession of a firearm with intent to commit an indictable offence (false imprisonment) and demanding money with menaces. He received concurrent sentences of 12, 12 and 5 years respectively to date from 20th July 1994.
7. On 27th August 1997, prior to the commencement of his trial, the appellant made a complaint to the Human Rights Committee (“the Committee”) to the effect that his trial before the Special Criminal Court violated his rights under a number of articles of the Covenant. Ireland is a party to the Covenant. It is dated 16th December 1966. Article 3 obliges “each State Party… (a) to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity..”
8. Article 28, in Part IV of the Covenant, provides for the establishment of a Human Rights Committee, consisting of eighteen members, who are to be “persons of high moral character and recognised competence in the field of human rights, consideration being given to the usefulness of the participation of some persons having legal experience.”
9. Ireland has also ratified the Optional Protocol which enables the Human Rights Committee established under article 28 of the Covenant “to receive and consider …communications from individuals claiming to be victims of violations of any of the rights set forth in the Covenant …..” Article 1 of the Protocol provides that a “State Party that becomes a party to the …. Protocol recognises the competence of the Committee…” in respect of such individual claims. Subject to the proviso that the individual complaining “has exhausted all available domestic remedies,” the Committee “shall consider communications received under the …Protocol in the light of all written information made available to it by the individual and by the State Party concerned.”
10. The appellant’s complaint to the Committee invoked two principal articles of the Covenant. Article 14 lists a number of the most basic procedural and substantive rules protecting the rights of accused persons in the criminal process. It is enough to say that the Committee did not find it necessary to examine the appellant’s complaints under article 14, though a minority view was recorded. Furthermore, unlike the case made under article 26, to which I am about to refer, no attempt was made in the course of the present proceedings to rely directly on the substantive provisions of article 14.
11. Article 26 of the Covenant provides:
“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
12. The Committee upheld the appellant’s complaint of violation of this article. It observed that:
“No reasons are required to be given for the decisions that the Special Criminal Court would be “proper”, or that the ordinary courts are “inadequate,” and no reasons for the decision in the particular case has been provided to the Committee. Moreover, judicial Review of the DPP’s decisions is effectively restricted to the most exceptional and virtually undemonstrable circumstances.”
13. Accordingly, the Committee considered that “the State Party [had] failed to demonstrate that the decision to try the author before the Special Criminal Court was based on reasonable and objective grounds.” It continued: “Accordingly, the Committee concludes that the author’s right under article 26 to equality before the law and to the equal protection of the law has been violated.” The link between the conclusion so expressed and the principle of equality appears to be that the appellant was treated differently from other persons who were charged with similar offences before the ordinary courts.
14. The Committee, having referred to article 3(a) of the Covenant, quoted above, conveyed its conclusion to the Irish government as follows:
“13. Bearing in mind that, by becoming a party to the Optional Protocol, Ireland has recognised the competence of the Committee to determine whether there has been a violation of the Covenant and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the Covenant and to provide an effective and enforceable remedy in case a violation has been established, the Committee wishes to receive, within ninety days, information from the Government of Ireland about the measures taken to give effect to the Committee’s Views. The State party is requested also to give wide publicity to the Committee’s Views.”
15. The appellant, who is serving the sentences of imprisonment impose by the Special Criminal Court, applied in the High Court for an inquiry pursuant to article 40.4 of the Constitution into the lawfulness of his detention, but, as was accepted at the hearing of the appeal, the essential reliefs sought were:
a) certiorari to quash his conviction;
b) a declaration that section 47(2) of the Offences against the State Act, 1939 (as construed by the Supreme Court) is incompatible with the UN Covenant on Civil and Political Rights and is accordingly repugnant to the Constitution , in particular, Articles 29, 2 and 3 thereof.
16. The appeal becomes, in reality, an application for leave to apply for judicial review. The grounds for these reliefs, as advanced both in the High Court and on the appeal, are based in part on the provisions of the Covenant itself and in part on the views communicated by the Committee. They include arguments based on a novel or at least revised interpretation of article 29 of the Constitution as well as a legitimate expectation created by the adherence of Ireland to the Covenant and the Protocol. All of these were rejected in a considered reserved judgment of Finnegan J (as he then was). I will discuss these arguments as they have been advanced at the hearing of the appeal.
EQUAL TREATMENT: THE CONSTITUTION
17. The appellant’s starting point is the principle of equal treatment, both as it expressed in article 26 of the Covenant and as it is given concrete expression in the views of the Committee. Dr Forde, Senior Counsel, submitted that the general principles of international law have greatly expanded the scope and content of this principle over the past fifty years. Article 29 section 3 of the Constitution declares that:
“Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other States.”
18. This, according to the appellant, “constitutionalises” the general principles of international law, including the principle of equal treatment. The latter can, therefore, be invoked in the courts of Ireland so as, where appropriate, to invalidate a conviction or to render repugnant a statutory provision. Attention was drawn to the dissenting judgment in the International Court of Justice of Judge Tanaka, South West Africa Cases (1966) on “the essence and nature of fundamental rights ..[in the context of the United Nations Charter] … in which the principle of equality before the law occupies the most important part ….” This Court, it is acknowledged, ruled in In Re O Laighleis [1960] IR 93 that article 29 section 3 confers no rights on individuals. Dr Forde was at pains to say that he did not suggest that In Re O Laighleis was wrongly decided. It was probably correct in its time. However, the substance of the principles of international law has changed so radically that the case would no longer be decided in the same way. These principles take effect in Irish law by virtue of article 29 section 3 and there is thus no need for their enactment into Irish law pursuant to art 29 section 6.
19. As an alternative, Dr Forde invoked article 29 section 2:
“Ireland affirms its adherence to the principle of the pacific settlement of international disputes by international arbitration or judicial determination.”
20. This provision would apply to the views expressed by the Committee. However, when pressed as to whether the views of such an international body could prevail against a judgment of a court established under Irish law, Dr Forde appeared to accept that his argument would probably be incompatible with article 34 of the Constitution.
LEGITIMATE EXPECTATIONS
21. The second part of Dr Forde’s argument concerned legitimate expectation. The State’s accession to the Covenant and ratification of the Protocol created a legitimate expectation that the State would respect the terms of the Covenant itself in its substance and, more particularly, that it would take steps to give effect to the views of the Committee. These might extend to or include an application by the Director of Public Prosecutions to the Special Criminal Court to have the conviction quashed. Dr Forde cited a wide and impressive array of authority to show that courts in various countries have extended the application of the doctrine of legitimate expectation to encompass undertakings to be implied from the acceptance by states of international obligations.
22. I will refer briefly to some of these authorities. In the New Zealand Court of Appeal in Tavita v Minister of Immigration [1994] 2 NZLR 257, a decision had been made under immigration legislation for removal of an “overstaying” immigrant. The immigrant later founded a family in New Zealand. Judicial review proceedings were brought in relation to the original order and subsequent implementing decisions. Reliance was placed on New Zealand’s adherence to certain international human rights instruments, including, as it happens articles 23 and 24 of the Covenant but also the United Nations Convention of 1989 on the Rights of the Child. In that case the argument centred on whether the administrative authorities including the Minister should have regard to provisions of these instruments conferring protection on family relationships such as the one the immigrant had established. The matter was not formally determined: the court adjourned the matter to provide an opportunity for the authority to reconsider the case. Cooke P, as he then was, made some remarks on the relevance of a state’s international obligations in the context of domestic decision-making upon which Dr Forde relies. He characterised as “unattractive” an argument of the respondents “apparently implying that New Zealand’s adherence to the international instruments [had] been at least partly window dressing.” Later he said:
“If and when the matter does fall for decision, an aspect to be borne in mind may be one urged by counsel for the appellant: that since New Zealand’s accession to the Optional Protocol the United Nations Human Rights Committee is in a sense part of this country’s judicial structure, in that individuals subject to New Zealand jurisdiction have direct rights of recourse to it. A failure to give practical effect to international instruments to which New Zealand is a party may attract criticism. Legitimate criticism could extend to New Zealand courts if they were to accept the argument that, because a domestic statute giving discretionary powers in general terms does not mention international human rights norms or obligations, the executive is necessarily free to ignore them.”
23. The decision of the High Court of Australia in Minister of State for Immigration and Ethnic Affairs v Teoh [1994-1995] 183 CLR 273 was also concerned with the effect on the exercise of administrative powers of ratification of United Nations Convention on the Rights of the Child. Decisions to refuse resident status and to deport had been made. Arguments in reliance on the Convention, which had entered into force as regards Australia before the relevant decisions were made, were raised at a late stage. The best interests of children affected by state action were, inter alia, required to be “a primary consideration.” It appeared that one possible effect of the decisions was the break-up of the immigrant’s family. The joint judgment of Mason C.J. and Keane J treads a careful line between giving direct effect in Australian law to an international agreement that had not been legislatively adopted and the duty of administrative authorities to respect expectations legitimately entertained that Australia would act in accordance with international obligations freely entered into. The judgment contains the following at page 291:
“… ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention (46) and treat the best interests of the children as ‘a primary consideration’.”
“It follows that while Australia’s ratification of the Convention does not go so far as to incorporate it into domestic law, it does have consequences for agencies of the executive government of the Commonwealth. It results in an expectation that those making administrative decisions in actions concerning children will take into account as a primary consideration the best interests of the children and that, if they intend not to do so, they will give the persons affected an opportunity to argue against such a course. It may be said that such a view of ratification will have undue consequences for decision-makers. But it is important to bear in mind that we are not concerned with enforceable obligations, but with legitimate expectations, and that there can be no legitimate expectation if the actions of the legislature or the executive are inconsistent with such an expectation.”
24. Earlier in the same judgment reference was made to the fact that, while the treaty making power fell within the province of the executive, “the making and the alteration of law fall within the province of Parliament, not the executive.” It continued: “So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law.”
25. While Australia, as a common-law country, operates the general dualist approach to the domestic effect of international agreements, it does not appear from the judgments of the High Court that Australian law replicates that rule with anything quite like the constitutional rigour with which it is embodied in article 26 section 6 of the Constitution:
“No international agrement shall be part of the domestic law of the state save as may be determined by the Oireachtas.”
26. The appellant also relied on a decision of the High Court of Hong Kong Special Administrative Region of 13 July 2000. In that case, Cheung J adopted the approach outlined in the New Zealand and Australian decisions in another immigrant case, and went on: “Where legitimate expectation is invoked by reference to the international covenants, the court is, of course, dealing with the concept of procedural propriety and not as a matter of substance.”
27. Finally Dr Forde cited Fakih v Minister for Justice [1993] 2 IR 406 and Gutrani v Minister for Justice [1993] 2 IR 427 as showing that the courts in this jurisdiction will ensure that the State, in dealing with aliens, pay due regard to procedures it has undertaken to observe in letters written to an international organisation.
CONSIDERATION OF THE APPLICATION
28. The appellant does not have to go further, on this application, than to demonstrate that he has, in the words of Finlay C.J., “a statable, an arguable case in law”, [G v Director of Public Prosecutions [1994] 1 IR 374 at page 381]. The Chief Justice described this burden as light and also said at page 382:
“The aim is … to effect a screening process of litigation against public authorities and officers. It is to prevent an abuse of the process, trivial or unstatable cases proceeding, and thus impeding public authorities unnecessarily.”
29. The appellant sees article 29 of the Constitution not as an obstacle to his reliance on the general principle of equal treatment, but as the channel through which it flows into Irish law: in fact, not merely into Irish law but into the Constitution. This approach is logical and necessary. The appellant wishes to find a legal means to free him from the obligation to serve the sentences of imprisonment imposed on him. That, as he sees it, can be done either by quashing the conviction or invalidating the relevant provisions of the Offences against the State Act. Nothing less will suffice. The appellant has, as he was in any event required to establish to the satisfaction of the Committee, exhausted all available legal remedies in Irish law. He pursued his complaint against the decision of the Director of Public Prosecutions all the way to the Supreme Court. He has appealed his conviction and sentence to the Court of Criminal Appeal, all to no avail.
30. He relies, therefore, on article 29, sections 3 and 2 in that order. For the purposes of this analysis, it can be assumed without deciding that the appellant is correct in his contention that the principle of equal treatment before the law has become a generally recognised principle of international law and even that its scope and content has expanded sufficiently since O Laighleis was decided to encompass the appellant’s treatment at the hands of the Director of Public Prosecutions. It can even be assumed, again without so deciding, that the principles of international law which article 29 section 3 requires the State to respect include the rights claimed by the appellant.
31. The difficulty for the appellant, on this application does not lie in the quality of the principle of equality. It is to be found in the wording of the constitutional provisions. The obligation of Ireland to respect the invoked principles is expressed only in the sense that it is to be “its rule of conduct in its relations with other States.” It is patent that this provision confers no rights on individuals. No single word in the section even arguably expresses an intention to confer rights capable of being invoked by individuals.
32. The appellant is mistaken, in my view, in his interpretation of O Laighleis. That case was also concerned with an argument that provisions of the Offences against the State Act were contrary to international law but also to the provisions of the European Convention. The unanimous judgment of the Court, delivered by Maguire C.J. said (page 124):
“Clauses 1 and 3 of Article 29 of the Constitution clearly refer only to relations between states and confer no rights on individuals..”
33. The judgment went on to hold that, in the specific case of the European Convention, there was “an insuperable obstacle” to importing its provisions into domestic law. That was, in particular, the reservation by Article 15, section 2, sub-sect ion 1 of the “sole and exclusive power of making law for the State..” to the Oireachtas. Moreover, Article 29, section 6 permitted an international agreement to have effect in domestic law when and to the extent that the Oireachtas so decided. It concluded:
“No argument can prevail against the express terms of section 6 of Article 29 of the Constitution before judges whose declared duty is to uphold the Constitution and the laws.”
34. It is fair to say that Dr Forde, conscious no doubt of the force of these combined provisions and of the undisturbed status of the decision in O Laighleis did not contend for direct effect to be given to the provisions of the Covenant. He limited this part of the argument to the contention that Article 29 “constitutionalises” general principles of international law. The O Laighleis case remains the law and has been followed in other cases: see, for example State (Sumers Jennings) v Furlong [1966] IR 183; State (Gilliland) v Governor of Mountjoy Prison [1987] 201. O Laighleis has stood the test of time because the words that it interpreted are clear beyond argument and do not admit of any other construction.
35. Turning to Article 29, section 2, the words are, if anything clearer. The reference to “international arbitration or judicial determination” occur in the context and only in the context of the State’s affirmation of its adherence “to the principle of pacific settlement of international disputes …” To take them out of that context would do violence to the text of the Constitution. Furthermore, though the point is now surplusage, insofar as Dr Forde relied on this provision to invoke the expression of views of the Committee as against the conviction of the appellant by the judgment of the Special Criminal Court, it would conflict with Article 34, section 1 of the Constitution:
“Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.”
36. The notion that the “views” of a Committee even of admittedly distinguished experts on international human rights experts, though not necessarily lawyers, could prevail against the concluded decision of a properly constituted court is patently unacceptable. To be fair, even in international law, neither the Covenant nor the Protocol make such a claim. Neither the Covenant nor the Protocol at any point purports to give any binding effect to the views expressed by the Committee. The Committee does not formulate any form of judgment or declare any entitlement to relief. Its status in international law is not, of course, a matter for this court. It suffices to say that the appellant has not furnished any arguable case for the effect of the Committee’s views. His case encounters the “insuperable obstacle” identified in the judgment of Maguire C.J.
37. I turn finally to the argument based on legitimate expectation. It is unnecessary to pronounce any view on the impressive array of authority cited by Dr Forde for the proposition that decision-makers should take international human rights instruments into account when making decisions in areas potentially affected by those instruments. It can be accepting without deciding that such decision makers should pay due regard to such instruments. It is, however, the particular form of legitimate expectation claimed by the appellant which has to be considered.
38. The principle of respect for legitimate expectations, though novel and as yet not fully explored, can be confidently defined as a rule applicable, ratione materiae, to the decision-making process. Where the state is involved, it should be assumed for present purposes that all makers of administrative decisions may come within its scope once the state itself has adopted a relevant position in the international sphere. On that hypothesis, decision makers should not be allowed to disappoint expectations which they have themselves created and which are reasonably entertained by those within the purview of the powers they exercise. Why, one asks? The simple almost naive answer is that it would be unfair. I discussed this in my judgment in Daly v Minister for the Marine and the Attorney General (unreported 4th October, 2001). Moreover, the doctrine of legitimate expectation does not, in the normal course of events, guarantee anything more than procedural fairness. Mason C. J. and Keane J. In their joint judgment in the Teoh case said (page 291):
“The existence of a legitimate expectation that a decision-maker will act in a particular way does not necessarily compel him or her to act in that way. That is the difference between a legitimate expectation and a binding rule of law. To regard a legitimate expectation as requiring the decision-maker to act in a particular way is tantamount to treating it as a rule of law.”
Depending on circumstances, it is conceivable that application of the doctrine will have the effect of conferring substantive rights, but that will necessarily be an indirect consequence. The decision-maker, confronted with the duty to take created expectations into account may find it difficult or even impossible credibly to reject an application for a particular result.
39. In this case, the appellant wishes in essence to obtain an order, by whatever legal procedure may be available, having the effect of invalidating his conviction at the hands of the Special Criminal Court. His invocation of the unconstitutionality of the impugned sections of the Offences against the State Act, 1939 are merely incidental to that objective. They are but means to that end. Indeed, at the hearing of the appeal, Dr Forde modified his position, stating that it would not be necessary to have a declaration of unconstitutionality; it would suffice to follow the rule that the sections be construed so as to be in conformity with the Constitution. The target would remain the order of conviction. It would be quashed, even if that involved relief formulated in a novel form such as requiring the DPP to apply to have the conviction set aside. This is substantive relief of a far-reaching kind.
40. Such a claim for relief seems greatly to exceed the reach of the doctrine of legitimate expectation, however generously it might be extended. However, that may not conclusively establish that the appellant has failed to establish a stateable case.
41. The decisive question is whether, by reliance on the doctrine of legitimate expectation, the appellant can make an arguable case to have his conviction quashed. In order to obtain this relief, the appellant must demonstrate credibly, i.e., arguably, that either the right to equal treatment as guaranteed by the Covenant or the expression of views of the Committee has the effect of invalidating the conviction.
42. At this point, the clear terms of article 29 of the Constitution return to the picture. How, one might ask, could the provisions of an international agreement which has not been adopted into Irish law or the views expressed by a Committee established thereunder prevail over the legal effect of a conviction by a duly constituted Irish court? Once again, the joint judgment of Mason C.J. and Keane J is instructive. The judges observed that to allow the doctrine of legitimate expectations to compel a decision-maker to act in a particular way “incorporates,” i.e., would incorporate “the unincorporated convention into our municipal law by the back door.” It seems clear beyond argument that what could not be achieved directly through the mechanism of article 29, section 3 could not be achieved indirectly by invoking the doctrine of legitimate expectations. To permit that result would do much more than extend the range of application of the doctrine. The terms of the Covenant have not been enacted into Irish law. They cannot prevail over the provisions of the Offences against the State Act, 1939 or of a conviction by a court established under its provisions. For the reasons already stated, the views of the Committee cannot be invoked to invalidate that conviction without contravening the terms of article 29, section 6 article 15, section 2(1) and article 34 section 1 of the Constitution.
43. To accept that the appellant has an arguable case under any heading of his claim would imply that the Court may be able to disregard the clear and unambiguous provisions of the Constitution in their relations with international agreements. The Constitution establishes an unmistakable distinction between domestic and international law. The government has the exclusive prerogative of entering into agreements with other states. It may accept obligations under such agreements which are binding in international law. The Oireachtas, on the other hand, has the exclusive function of making laws for the state. These two exclusive competences are not incompatible. Where the government wishes the terms of an international agreement to have effect in domestic law, it may ask the Oireachtas to pass the necessary legislation. If this does not happen, article 29, section 6 applies. I am prepared to assume that the State may, by entering into an international agreement, create a legitimate expectation that its agencies will respect its terms. However, it could not accept such an obligation so as to affect either the provisions of a statute or the judgment of a court without coming into conflict with the Constitution.
44. In my view, the appellant has not established any arguable case under any of the headings of judicial review in respect of which he seeks leave. I would refuse the application and dismiss the appeal.

Mulcreevy v Minister for Environment, Heritage and Local Government

and Dun Laoghaire-Rathdown County Council

[2004] 1 I.L.R.M. 419
Mulcreevy v. Minister for Environment, Heritage and Local Government & Ors [2004] IESC 5 (27 January 2004)

THE SUPREME COURT
Keane C.J.

Hardiman J.

McCracken J.

15/04

 

JUDGMENT delivered the 27th day of January 2004, by Keane C.J.

The lands at Carrickmines, Co. Dublin, which are the subject of these proceedings, contain the remains of Carrickmines Castle, a site which is clearly of considerable historical and archaeological interest. The second named respondents (hereafter “the local authority”) are engaged in a major road scheme known as “The South Eastern Motorway Scheme”. It is not in dispute in these proceedings that the construction of the motorway has been authorised under the relevant legislation and that it forms a strategic element of the national road network, providing a high speed link between the N11 and other national primary routes around Dublin. The route of the motorway traverses part of the Carrickmines Castle site and, since the route was decided upon, extensive archaeological works have been carried out by consultants appointed by the local authority at sites affected by the motorway. It is not in dispute that the remains of Carrickmines Castle are a “national monument” within the meaning of the National Monument Acts, 1930 to 1994, and that the construction of the motorway, as it proceeds, will necessitate the removal of some of the remains, including, in particular, what is described as a granite stone masonry revetment forming part of the defensive structures of the castle, and some of which has already been removed. It is the intention of the local authority to reconstruct that section elsewhere on the site which they own. It should be added that it is also not in dispute that the archaeological excavations carried out on behalf of the local authority have involved an expenditure of in excess of €6 million and the employment of up to 200 archaeologists.
The fact that the motorway works have, and will, result in the removal or destruction of part of the archaeological remains in question has led to much controversy. In previous proceedings in the High Court and in this court arising out of the construction of the motorway, to which it will be necessary to refer in more detail at a later stage, it emerged that there was a sharp difference of view between Dr. Valerie J. Keeley, an archaeologist who was the director of a consultancy firm retained by the local authority, and a historian, Dr. Séan Duffy, as to the extent and significance of the removal or destruction. Dr. Keeley was of the view that the archaeological procedures implemented on the site had been entirely appropriate, contrary to the view of Dr. Duffy. In these proceedings, Dr. Mark Clinton, an archaeologist who was the site director for the excavation programme from 1st September, 2002 until 11th October, 2003 swore an affidavit in which he takes issue with the approach adopted by Dr. Keeley.
It is not necessary for this court to attempt to resolve this difference of opinion between professionally qualified and experienced archaeologists, any more than it was necessary for the High Court to do so. Not is it necessary for the court to determine where the balance must be struck between the preservation of what is acknowledged to be a site of great archaeological and historic interest and the implementation of a major infrastructural project.
To understand the issues which have arisen in the High Court and again in this court, it is necessary at the outset to summarise briefly the history of the earlier proceedings to which I have already referred and which are now reported under the title Dunne & Anor –v- Dun Laoghaire – Rathdown County Council [2003] 1 IR 567. In that case, the plaintiffs issued proceedings in which they sought injunctive relief restraining the local authority from removing parts of the monument. Their application for an interlocutory injunction granting them that relief pending the hearing of the action was refused in the High Court. Their claim was essentially that the plaintiffs, before proceeding with the works, required the joint consent of the first named respondent in these proceedings (hereafter “the Environment Minister”) as the successor of the Commissioners of Public Works in Ireland (hereafter “the Commissioners”) and the local authority. It was conceded on behalf of the local authority that the consent of the Environment Minister had not been obtained, but in addition to advancing other arguments based on matters such as the standing of the plaintiffs, laches and the balance of convenience, it was also urged on behalf of the local authority that the consent of the Environment Minister was in any event unnecessary since it was that minister who had authorised the road project in question and that they had also been granted an excavation licence to carry out archaeological digging under another provision of the legislation. That submission was rejected by Hardiman J. with whom the other members of the court, Geoghegan J. and McCracken J. agreed, and the court also rejected the other arguments advanced on behalf of the local authority against the granting of the injunctive relief.
Thereafter, the local authority applied to the Environment Minister for the necessary consent. A joint consent of the local authority and the Environment Minister was given on 3rd July, 2003 and on the same day the Environment Minister made the National Monuments (Approval of Joint Consent) Order, 2003. The order stated that it was being made by the Minister because he considered
“that the public interest in the construction of the South Eastern Motorway along the approved route justifies the carrying out of works described in the joint consent impacting on archaeology at the site …”
It is agreed in this case that, before the works restrained by the interlocutory injunction could proceed, it was necessary that this order should be laid before both Houses of the Oireachtas and that it would not become effective until 21 sitting days of both Houses had elapsed during which no resolution to annul the order had been passed by either House. It is accepted that, accordingly, the order did not come into effect until the 2nd December, 2003. The interlocutory injunction granted by this court was discharged by the High Court on 8th December, 2003 and, on that day, the local authority stated that it would be taking the appropriate steps to implement the approval given by the Environment Minister.
On 23rd December, 2003 an application was made on behalf of the plaintiffs to the High Court for leave to issue proceedings by way of judicial review claiming inter alia
(i) An order of certiorari of the National Monuments (Approval of Joint Consent) Order, 2003 made on 3rd July, 2003 (hereafter “the approval order”);
(ii) An order of prohibition prohibiting the local authority from in any way demolishing, removing (in whole or in part), disfiguring, defacing, altering, injuring or interfering in any way with the monument;
(iii) An injunction against the local authority to the same effect pending the hearing of these proceedings.
The grounds on which the relief were claimed were as follows:
(i) The approval order was ultra vires the provisions of the National Monument Acts, 1934 to 1994, since it was neither in the interests of archaeology nor in the interest of public health or safety to make the order and there was no other ground on which the order could be made;
(ii) The ground given by the Environment Minister for making the approval order – that it was in the public interest that the South Eastern Motorway should be constructed along the route in question – was not a ground which could lawfully justify the granting of the approval order;
(iii) The Heritage (Transfer of Functions of Commissioners of Public Works) Order, 1996 (SI 61 of 1996) (hereafter “the 1996 order”) and the Heritage (Transfer of Departmental Administration and Ministerial Functions) Order, 2002 (SI 356 of 2002) (hereafter “the 2002 order”) whereby the functions of the Commissioners and the Minister for Arts, Culture and the Gaeltacht (hereafter “the Arts Minister”) relating to the grant of the approval order were purportedly transferred to the Environment Minister were ultra vires the parent legislation and of no effect;
(iv) The said works were being carried out without a licence under s. 26 of the National Monuments Act, 1930, which was required for digging or excavating for any archaeological purpose.
The applicant, who lives in Kerry, said in a grounding affidavit that he had no private interest in the proceedings but was seeking as a citizen to ensure that a national monument was not, as he put it, irreparably damaged by the local authority without having obtained the necessary statutory approvals, consents and licenses.
The application for leave to issue the proceedings by way of judicial review was made on notice to the Environment Minister and the local authority and was heard by Gilligan J. While satisfied that the applicant had standing to institute the proceedings, he was of the view that, although in so far as they sought relief by way of certiorari, they were brought within the period of six months prescribed by Order 84, Rule 21(1) of the Rules of the Superior Courts, they had nonetheless not been brought sufficiently promptly and he accordingly refused to grant any of the reliefs sought. From that judgment, the applicant has now appealed to this court.
On the hearing of the appeal, the Environment Minister and the local authority, in addition to contesting the grounds relied on by the applicant in the High Court, also relied on what was said to be his lack of locus standi and his failure to move with sufficient promptness, as found by the High Court.
Locus standi

While the applicant accepts that he has no private interest in these proceedings, it is not suggested that he has brought them for any other reason than to ensure that the national monument is not damaged irreparably, as he claims it would be, by the local authority carrying out the motorway project without the necessary statutory consents, approvals and licenses.
It has been made clear in decisions of the High Court and this court in recent times that it is not in the public interest that decisions by statutory bodies which are of at least questionable validity should wholly escape scrutiny because the person who seeks to invoke the jurisdiction of the court by way of judicial review cannot show that he is personally affected, in some sense peculiar to him, by the decision. It is in that sense, I think, that the requirement in Order 84, Rule 20(4) of the Rules of the Superior Courts, 1986 should be read. It provides:
“The court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates.”
It is at the same time essential to bear in mind that, while it is undesirable that invalid legislation or unlawful practices should escape scrutiny because of the absence of an indisputably qualified objector, it is also important to ensure that unfounded and vexatious challenges are not entertained.
While the respondents relied on the decision of this court in Lancefort Ltd. –v- An Bord Pleanala No. 2 [1999] 2 IR 270, there were features of the applicants / appellants position in that case which render it clearly distinguishable from these proceedings. In the first place, the applicant was a company limited by guarantee which was not even in existence at the time the planning decisions which were being challenged had been made. Secondly, the company itself had been promoted by an objector who had participated actively in the oral hearing which led to the grant of planning permission but had not relied on the ground which the company subsequently sought to rely on by way of challenge to the decision. Thirdly, the ground itself was held by this court not in any event to be a “substantial” ground under the relevant planning legislation and it was emphasised that the courts were obliged to have serious regard to that requirement in the case of challenges of that nature.
This is not a case in which, as under the planning code, the legislature has provided an elaborate appeals procedure and by other legislative provisions has sought to ensure that the judicial review procedure should not be availed of as a form of further appeal. In this case, moreover, as will shortly appear, in at least one instance it most certainly cannot be said that the ground on which the applicant seeks to rely is without substance.
I would, accordingly, agree with the conclusion of the learned trial judge that the applicant had locus standi to institute the present proceedings.
Delay

Order 84, Rule 21(1) provides that
“An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when the grounds for the application first arose, or six months where the relief sought is certiorari, unless the court considers that there is good reason for extending the period within which the application shall be made.”
It is clear from the terms of this rule that, depending on the circumstances of the particular case, it may not be sufficient for a person seeking relief by way of certiorari to move within the six months period, as happened here. Even within that period, the obligation remains on him to move promptly and the importance of the time element has been repeatedly stressed by the courts: see in particular the judgments of Denham J. and Fennelly J. in De Roiste –v- Minister for Defence [2001] 1 IR 190. While the question as to whether the period of delay involved should be excused must inevitably depend on the circumstances of the particular application, it is undoubtedly the case that where, as here, the proceedings concern a large infrastructural project and substantial expense may result to the public as a result of unnecessary delay, the time factor requires special attention.
In the present case, the applicant did not bring his proceedings until the period within which the approval order could be annulled by resolution of either House had expired. That happened on 2nd December, 2003 and the application to the High Court was made three weeks later, on 23rd December.
It was contended on behalf of the respondents that the applicant should have instituted his proceedings when the approval order was made on 3rd July, 2003, since that was when the ground of challenge “first arose” within the meaning of Order 84, Rule 21. It was argued that the procedure involved in laying the order before the Houses of the Oireachtas was in no sense equivalent to an appeal: the order sought to be impugned had either been properly made or not at that stage and, if it was improperly made, the defect bringing about that result could not be cured by there being no resolution to annul the decision passed in either House of the Oireachtas.
That submission seems to me to disregard the difficulties which might have confronted the applicant if he had made his application for leave before the 21 sitting day period for annulling the order had elapsed. It is unnecessary to determine whether, if he had brought his application at that stage, the court would have dismissed it on the ground that it was premature since, for all the court knew, the Oireachtas might annul the approval order. It is sufficient to say that the applicant cannot be regarded as having acted unreasonably in not instituting proceedings to challenge a statutory consent / approval which was devoid of legal effect until the relevant period had expired. Until that happened, the interests of neither the applicant nor the local authority were affected, since it was not possible for the latter to resume the works until such time as the approval order became effective and the interlocutory injunction in the existing proceedings had been discharged. I am satisfied, accordingly, that the relevant period of delay was no more than three weeks, which was not contended to be, of itself, a period of sufficient length to disentitle the applicant to the relief claimed.
The standard for granting leave

The standard applicable to an application for leave to apply for judicial review was described as follows by Denham J. in G. –v- Director of Public Prosecutions [1994] 1 IR 374:-
“The burden of proof on an applicant to obtain liberty to apply for judicial review under the Rules of the Superior Courts, Order 84, Rule 20, is light. The applicant is required to establish that he has made out a stateable case, an arguable case in law. The application is made ex parte to a judge of the High Court as a judicial screening process, a preliminary hearing to determine if the applicant has such a stateable case.”
Since, in the present case, the application was made on notice to the respondents who were represented at the hearing in the High Court, it is submitted that a stricter standard is appropriate. In support of that submission, the court was referred to the following passage from the judgment of Glidewell L.J. in Mass Energy Ltd. –v- Birmingham CC. [1994] Env. Lr 298 at pp. 307:-
“First, we have had the benefit of detailed inter partes argument of such depth and in such detail that, in my view, if leave were granted, it is more unlikely that the points would be canvassed in much greater depth or detail at the substantive hearing. In particular, we have all the relevant documents put in front of us … Thirdly, as I have already said, we have most, if not all, of the documents in front of us; we have gone through the relevant ones in detail – indeed in really quite minute detail in some instances – in a way that a court dealing with an application for leave to move rarely does, and we are thus in as good a position as would be the court at the substantive hearing to construe the various documents.
For those reasons taken together, in my view, the proper approach of this court, in this particular case ought to be – and the approach I intend to adopt will be – that we should grant leave only if we were satisfied that Mass Energy’s case is not merely arguable but is strong; that is to say, is likely to succeed.”
In another English decision, R. –v- Cotswold District Council [1998] 75 P&CR 515, Keene J. (as he then was), having referred to Mass Energy, said
“… I would prefer to put it on the basis that where the court seems to have all the relevant material and has heard full argument at the leave stage on an inter partes hearing, the court is in a better position to judge the merits than is usual on a leave application. It may then require an applicant to show a reasonably good chance of success if he is to be given leave.”
It may be noted that the learned judge in that passage seems to have avoided the use of the expression a “strong” case used by Glidewell L.J.
These passages were cited with approval by Kelly J. in Gorman –v- Minister for the Environment [2001] 1 IR 306. He decided in that case, however, to apply the standard laid down in G. –v- Director of Public Prosecutions and his comments should therefore be regarded as obiter.
For reasons which will subsequently appear, I am satisfied that in this case also it is unnecessary to decide the issue as to whether a higher standard should be required in a case such as the present. It is sufficient to say that, where the application has been made on notice and the other side has been heard, it may well be that there will be no outstanding issue of fact which has to be resolved at a full hearing and that the court hearing the application for leave may indeed be in as good a position as the court which hears the ultimate application to determine the legal issues involved.
The statutory framework

The National Monuments Act, 1930 (hereafter “the 1930 Act”) is described in its long title as
“An Act to make provision for the protection and preservation of national monuments and for the preservation of archaeological objects in Saorstát Eireann and to make provision for other matters connected with the matters aforesaid.”
Section 14(1) provides that
“It shall not be lawful for any person (whether he is or is not the owner of the monument or is or is not seised or possessed of an estate or interests therein) to do any of the following things in relation to a national monument of which the Commissioners or a local authority are the owners or the guardians or in respect of which a preservation order is in force, that is to say:-
(a) to demolish or remove wholly or in part or to disfigure, deface, alter, or in any manner injure or interfere with any such national monument without or otherwise than in accordance with the consent hereinafter mentioned, or
(b) to excavate, dig, plough or otherwise disturb the ground within, around, or in proximity to any such national monument without or otherwise than in accordance with the consent hereinafter mentioned, or
(c) to sell for exportation or to export any such national monument or any part thereof.”
The site which is the subject of these proceedings is agreed to be a “national monument” of which the local authority are the owners. It follows that the motorway project being implemented by the local authority, to the extent that it involves either of the activities mentioned in subparagraphs (a) or (b), required the consents set out in the later part of s. 14. Subsection (2) provides inter alia that
“The consent hereinbefore mentioned is … in the case of a national monument of which a local authority are the owners or the guardians, the joint consent in writing of the Commissioners and such local authority.”
In this case, accordingly, the joint consent in writing of the Commissioners and the local authority was required under s. 14 of the 1930 Act as unamended.
Section 14(3) provides that
“The Commissioners and every local authority are hereby respectively authorised to give such consent as is mentioned in the foregoing sub-section if and whenever they think it expedient in the interests of archaeology or for any other reason so to do and are hereby further authorised to attach to any such consent all such conditions and restrictions as they think fit.”
The joint consent could, accordingly, under these provisions, prior to their amendment, be given whenever the Commissioners and the local authority thought it expedient in the interests of archaeology or for any other reason to give the consent. Thus, in a case, such as the present, where the demolition or removal of any part of the monument could not be thought to be in the interests of archaeology, the Commissioners and the local authority were vested with a wide discretion to give the consent “for any other reason”.
The amendments brought about to these provisions by s. 15 of the National Monuments (Amendment) Act, 1994 (hereafter “the 1994 Act”) must next be considered. It can be said immediately that they were effected in a remarkably tortuous and oblique fashion. The relevant provisions are as follows:-
“15(1) Section 14 of the [1930 Act] is hereby amended by the insertion after subsection (3) of the following subsections:
‘(3A) The consent referred to in subsection (2) of this section shall not be given by the Commissioners or the Commissioners and a local authority, in a case referred to in paragraph (a) of subsection (1) of this section, unless it is in the interests of archaeology to do so or the Minister [for Arts, Culture and the Gaeltacht] has approved of the giving of that consent.
(3B) Subject to subsection (3C) of this section, on being requested to approve of a consent under this section, in a case referred to in paragraph (a) of subsection (1) of this section, the Minister [for Arts, Culture and the Gaeltacht] may either give such approval or refuse to give such approval and where he gives such approval he shall give it by (other than in a case referred to in subsection (3C) of this section) making an order in that behalf which said order shall set out the terms and conditions, if any, of his approval.
(3C) On being requested to approve of a consent under this section, the Minister [for Arts, Culture and the Gaeltacht] may approve of the consent referred to in subsection (3A) of this section in a case referred to in paragraph (a) of subsection (1) of this section where he thinks it expedient to do so in the interests of public health or safety.
(3D) An order made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if an order annulling the order is passed by either such House within the next 21 days on which that House has sat after the order is laid before it, the order shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.”
Despite the manner in which it has been drafted, the effect of this amendment is clear. In the first place, it substitutes for the controls imposed by the original s. 14 on any interference with a national monument a new hierarchy of controls. Under the section as originally enacted, such interference was unlawful unless the owner obtained the consent both of the Commissioners and the local authority. Thus, the consent of two distinct and independent statutory bodies with different remits was required. The result of the amendment, however, was to require the consent of a third statutory body, again with a different statutory remit, i.e. the Arts Minister.
The second effect of the amendment was significantly to qualify the wide residual discretion formerly vested in the Commissioners and the local authority. They could grant the joint consent themselves only where it was in the interests of archaeology to do so. In any other case, their consent was ineffective unless it was approved of by the Arts Minister. Moreover, except where the Arts Minister approved of the consent because he thought it expedient so to do in the interest of public health or safety, the order made by him approving the consent had to be laid before each House of the Oireachtas as soon as might be after it was made. If an order annulling the order was passed by either House within the next 21 days on which the House sat after the order was laid before it, the order was to be annulled.
Finally, it should be noted that these changes took effect only where the owner or any other person proposed
“(a) to demolish or remove wholly or in part of to disfigure, deface, alter, or in any manner injure or interfere with any such national monument …”
It did not apply where the proposal was within subparagraph (b), i.e.
“(b) to excavate, dig, plough or otherwise disturb the ground within, around, or in proximity to any such national monument …”
The effect of the amendment, accordingly, in the present case was that the Commissioners and the local authority could not give an effective consent to any demolition or removal of the site, unless it was in the interests of archaeology to do so, which it clearly was not. Accordingly, they required the approval of the Arts Minister and, since it could not be regarded as a case where it was in the interest of public health or safety to effect any such removal or demolition (as it would be, for example, if part of a building were about to collapse), the order made by the Arts Minister approving of the joint consent of the Commissioners and the local authority had to be laid before each House of the Oireachtas.
The 1996 order must next be considered. It was made by the Government, in purported exercise of the power conferred to them by s. 9(2) of the Ministers and Secretaries Act, 1924 (hereafter “the 1924 Act”). Article 3(1) provides that
“The functions vested in the Commissioners by or under any enactment or other provision mentioned in the Schedule to this order are hereby transferred to the Minister [for Arts, Culture and the Gaeltacht].”
Included in the Schedule are the 1930 Act and the 1994 Act.
Again, the purported effect of this provision is not in doubt. The consent of the Commissioners, which together with the consent of the local authority, was formerly a precondition to a lawful interference with a national monument was now no longer required. In its place, there was a requirement that the consent of the Arts Minister, in whom there was already vested the ultimate power of approval, be obtained. The provision, accordingly, purported to replace the hierarchy of controls requiring the consent or approval of three entirely distinct and independent statutory bodies with different remits, the Commissioners, the local authority and the Arts Minister, by a different system of control, requiring the approval or consent of two bodies only, the local authority and the Arts Minister.
The 2002 order was made by the Government in purported exercise of the powers conferred on them by s. 6(1) of the Ministers and Secretaries (Amendment) Act, 1939. It would appear that, in the interval, the relevant functions of the Arts Minister had been transferred to the Minister for Community, Rural and Gaeltacht Affairs. Article 4(1) provided inter alia that
“The functions vested in the Minister for Community, Rural and Gaeltacht Affairs –
(a) By or under any of the instruments or the provisions of the enactments mentioned in Part I of the Schedule to this order … are transferred to the [Environment Minister].”
Part I of the Schedule includes the 1930 Act and the 1994 Act.
The result, accordingly, was that the system of control by two independent statutory bodies with different remits which had been purportedly substituted for the three tier structure created by the 1994 Act remained in being, but with the Environment Minister substituted for the Arts Minister.
Finally, I should refer to s. 26(1) of the 1930 Act which provides that
“It shall not be lawful for any person, without or otherwise than in accordance with a licence issued by the Commissioners under this section, to dig or excavate in or under any land (whether with or without removing the surface of the land) for the purpose of searching generally for archaeological objects or of searching for, exposing or examining any particular structure or thing of archaeological interest known or believed to be in or under such land or for any other archaeological purpose.”
By virtue of the 1996 order and the 2002 order, the licenses required under this provision are now to be granted by the Environment Minister in place of the Commissioners.
The grounds on which judicial review is sought

The order of the Environment Minister of 3rd July, 2003 approving the joint consent given by him and the local authority on the same day was challenged on the ground that the reason given by the Environment Minister for the approval – the public interest in the construction of the motorway – was not a valid reason contemplated by the Oireachtas when the 1930 Act and the 1994 Act were enacted. It was argued that where, as here, the interference with the monument could not be justified on the ground that it was in the interests of archaeology or was required in the interest of public health or safety, the approval of the Environment Minister could only be given where he was implementing the stated policy of the legislation, i.e. the protection and preservation of national monuments and archaeological objects.
I am satisfied that this argument is entirely misconceived and that the applicant has failed to establish a stateable or arguable case to support this ground. The Oireachtas plainly intended that, in cases where neither archaeological considerations nor public health and safety could be invoked, the Environment Minister should enjoy a wide residual discretion to permit the interference with the national monument, subject to the qualification that his order had to be laid before the Houses of the Oireachtas. To confine the exercise of his discretion to cases in which it could be said that he was ensuring the protection or preservation of a national monument or the preservation of archaeological objects would be to render that residual discretion entirely meaningless, since the acts contemplated by the approval – the destruction, removal, etc. of the monument in whole or in part – far from protecting or preserving the monument would have precisely the opposite effect. If this argument were well founded, no such approval could ever be given.
The order was, however, also challenged on the ground that the 1996 order and the 2002 order, purporting to transfer the power of the Commissioners to consent jointly with the local authority to an interference with a national monument and of the power of the Arts Minister to approve such a joint consent to the Environment Minister, were ultra vires the parent Act in each case. It was submitted that, in purporting to substitute for the scheme, under which the consent of three independent statutory bodies had to be obtained, a scheme under which the consent or approval of two bodies only was necessary, the statutory instruments were purporting to amend the relevant provisions of the 1994 Act and that this could not be achieved by way of delegated legislation.
Article 15.2.1o of the Constitution provides that
“The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.”
It is well established that the exclusive role assigned to the Oireachtas in the making of laws by this Article does not preclude the Oireachtas from empowering Ministers or other bodies to make regulations for the purpose of carrying into effect the principles and policies of the parent legislation. (See Cityview Press Ltd. –v- An Chomhairle Oiliuna [1980] IR 381. But it is also clear that such delegated legislation cannot make, repeal or amend any law and that, to the extent that the parent Act purports to confer such a power, it will be invalid having regard to the provisions of the Constitution. Thus, in Cooke –v- Walsh [1984] IR 710, O’Higgins C.J., delivering the judgment of this court, said
“… It is necessary to seek a meaning for [the words in the statute] which absolve the national parliament from any intention to delegate its exclusive power of making or changing the laws. Needless to say, if such a meaning is not possible then the invalidity of the subsection would be established.”
It is also clear that, in accordance with the principle of construction applicable in such circumstances, the courts, where it is possible so to do, will adopt a construction of the parent statute which does not empower the making, repeal or amendment of any law by a form of delegated legislation. Giving the judgment of the court in Harvey –v- The Minister for Social Welfare [1990] 2 IR 232, Finlay C.J. said
“The court is satisfied that the terms of [the relevant Act] do not make it necessary or inevitable that a Minister … making regulations pursuant to the power therein created must invade the function of the Oireachtas in a manner which would constitute a breach of the provisions of Article 15.2 of the Constitution. The wide scope and unfettered discretion contained in the section can clearly be exercised by a Minister making regulations so as to ensure what is done is truly regulatory or administrative only and does not constitute the making, repealing or amending of law in a manner which would be invalid having regard to the provisions of the Constitution.”
It is, accordingly, necessary to consider in the first place whether the 1996 order purported to amend the provisions of s. 14 of the 1930 Act as amended by s. 15 of the 1994 Act. As has already been pointed out, the effect of that order was beyond argument to substitute for the statutory regime established under the 1994 Act, where three entirely distinct and independent statutory bodies with different remits had to give their consent or approval to the interference with the national monument before it could be lawfully effected, a different statutory scheme under which the approval or consent of two bodies only, the local authority and the Arts Minister (now the Environment Minister), was required. The statutory body giving the ultimate approval was no longer a different body: the Environment Minister, having himself already jointly authorised the interference with the national monument, there was no further independent approval by a different body required. The Oireachtas had plainly considered it appropriate that the statutory body giving the ultimate decision (subject in some cases, such as this, to its possible annulment by the Oireachtas) should be vested in a body other than the two bodies which had jointly authorised the interference initially, i.e. the Environment Minister and the local authority. It is difficult to see on what basis it could be suggested that it envisaged what was in effect a two-pronged rather than a three-pronged consent or approval. The conclusion is almost inescapable, in my view, that the 1996 order purported to amend s. 15 of the 1994 Act by substituting this new statutory regime.
Section 9(2) of the 1924 Act, as adapted, provides that
“It shall be lawful for the [Government]
(a) by an Order of the [Government] to transfer to and confer or impose on any Minister any of the jurisdictions, powers, duties, and functions of any Board of Commissioners or statutory body to which this section applies …”
The combined effect of s. 1(ii) and of the first part of the Schedule to the 1924 Act is that the Commissioners of Public Works in Ireland are a “Board of Commissioners” within the meaning of s. 9(2). If the effect of the 1996 order was simply to transfer the functions of the Commissioners under the 1930 Act and the 1994 Act to the Arts Minister, it would clearly be intra vires the 1924 Act. For the reasons I have given, however, it seems difficult to avoid the conclusion that it did more: that it purported to effect an amendment of the statutory scheme established under s. 15 of the 1994 Act. Having regard to the canon of construction adopted by this court in Cooke –v- Walsh and Harvey –v- Minister for Social Welfare, it again seems difficult to avoid the conclusion that, construed in accordance with Article 15.2.1o of the Constitution, s. 9(2) of the 1924 Act cannot be interpreted as conferring any power on the Government to make an order having that effect.
It follows inevitably, from what I have said, that I would reach the conclusion that, even adopting the more rigorous judicial review standard already referred to as possibly applicable in inter partes cases such as the present, the applicant has established in this case an arguable ground of challenge to the order of 3rd July, 2003 based on the invalidity of the 1996 order. To that extent, I would allow the present appeal.
The Schedule to the 1996 order sets out a number of statutes and regulations in addition to the 1930 Act and the 1994 Act in respect of which the functions vested in the Commissioners are transferred to the Arts Minister. No arguments were addressed to us as to whether, assuming that the submission that the order was ultra vires was correct, the result was to invalidate also the purported transfer of the Commissioners’ functions under the other statutes and regulations or whether it would be possible to sever the provisions which are ultra vires from the rest of the instrument.
The law in the United Kingdom is stated as follows in the 4th Edition of Bennion on Statutory Interpretation at p. 211
“Where possible, the court will sever the provision which is ultra vires from the rest of the [statutory] instrument. If the instrument consists of a collection of separate units, each of which is say a rule, a regulation or a by-law, severance is likely to be easier. However the question of severance does not depend on a ‘blue pencil test’. In accordance with principle, the court will sever the invalid provision from the valid notwithstanding that this cannot be done neatly by textual amendment.”
Since the point has not been argued and can in any event, if necessary, be the subject of further submissions at the hearing of the application for judicial review itself, it is unnecessary for me to express any view on it at this stage.
The validity of the 1996 order and the 2002 order were also challenged on the ground that in permitting the Environment Minister to make a decision granting an approval in respect of a consent to which he was already a party, it violated the requirement as to fair procedures guaranteed by Article 40.3 of the Constitution. It was, it was said, a breach of the requirement of natural justice, nemo iudex in causa sua, i.e. that no one should be a judge in his own cause. That argument, however, is wholly at variance with the law as stated by this court in O’Brien –v- Bord na Móna [1983] IR 255. In that case, it was held that Bord na Móna, in deciding whether to reject objections to a compulsory purchase of lands on which they had decided and which they were bound by statute to consider before proceeding with the acquisition were not exercising a judicial power within the ambit of Article 34 of the Constitution and that, accordingly, the power given to the Board was not vitiated, since the nemo iudex principle had no necessary application to administrative procedures of that nature. The same considerations would clearly arise in the present case and I am satisfied that the applicant has not shown an arguable or stateable case based on that ground.
There remains the challenge based on the alleged absence of a valid licence under s. 26 of the 1930 Act. This was grounded on s. 21 of the 1994 Act which provided that the Commissioners, having consulted with the Director of the National Museum of Ireland, might issue such a licence. The objection taken was that, in the light of communications received from officials of the National Museum, it would appear that there was no such consultation in respect of the licence allegedly in force at the time of the hearing in the High Court. That licence, however, was in turn an extension of an earlier licence granted after consultation with the museum and bears the same number as the earlier licence. Since the licence relied on at the relevant time was no more than an extension of a licence already granted in respect of which it is conceded that there had been the appropriate consultation, there would appear to be no substance in this ground. However, altogether apart from that consideration, even were the excavation licence under s. 26 to be of no effect, the local authority would be perfectly entitled to carry out the work of demolition, removal, etc. of the monument in reliance on a consent and approval validly issued under s. 14 of the 1930 Act as amended by s. 15 of the 1994 Act. Moreover, while I have already indicated that I am satisfied that the applicant had established a locus standi to challenge the validity of the order of 3rd July, 2003, different considerations might well apply where he was seeking to challenge a licence granted solely for the purpose of digging or excavating for archaeological objects and not in any way necessarily related to the removal or demolition of any part of the national monument. I am satisfied that no arguable or stateable case has been made out in respect of this ground of challenge.
Conclusion

I would allow the appeal and substitute for the order of the High Court an order giving the applicant leave to apply by way of judicial review for an order of certiorari of the order of the Environment Minister made on 3rd July, 2003 approving the joint consent of the Environment Minister and the local authority given on that day for the demolition, removal in whole or in part, disfigurement, defacement, alteration, injury or interference with a national monument, the property of the local authority, being the remains of the Carrickmines Castle complex. I would grant that relief on the grounds set out in paragraph (e), (x) and (xi), of the statement of grounds and on no other grounds. I would hear counsel on the question as to what form of interim or interlocutory relief, if any, should be granted to the applicant at this stage.

The State (D.) v Groarke and Anor

[1988] IR 187 Carroll J.
15th July 1988

By order made by District Justice O’Sullivan on the 18th November, 1986, the child, D.D., (born the 1st November, 1979) was ordered to be committed to the care of the Midland Health Board as a fit person, the order to remain in force until the 1st November, 1995, unless sooner varied or revoked. The order was made in the context of alleged sexual abuse by the father which was denied by him. That order was not appealed by the parents. No application was made to vary or revoke the order.
An application by the parents for an inquiry under Article 40 of the Constitution as to the validity of the detention of the child was granted in the High Court on the 16th June, 1987. Both of them denied there was any sexual abuse of the infant by the father. The issues to be determined were set out in writing and agreed between the parties. Some of these issues were expressed in broad terms and it was submitted on behalf of the parents that the Court should itself investigate the matters alleged against the father and determine whether the order should have been made by the District Justice. Other issues contested the constitutionality of s. 24 of the Children Act, 1908 (the Act of 1908), although no notice had been served on the Attorney General under O. 60 of the Superior Court Rules, 1986, O. 60, r. 1 provides:
“If any question as to the validity of any law, having regard to the provisions of the Constitution, shall arise in any action or matter the party having carriage of the proceedings shall forthwith serve notice upon the Attorney General, if he is not already a party.”
Mr. Shatter, for the parents, submitted that it was not necessary to serve notice because the Act was passed prior to the coming into operation of the Constitution. While there is a dictum of Keane J. to that effect in The State (D.C.) v. Midland Health Board (Unreported, High Court, Keane J., 31st July, 1986, at page 14) based on the decision of the Supreme Court in The State (Sheerin) v. Kennedy [1966] I.R. 379, I am not satisfied that the Supreme Court did hold to that effect. The State (Sheerin) v. Kennedy decided that the High Court did not have power to refer the question of the validity of a pre-Constitution statute to the Supreme Court by way of case stated under Article 40, s. 4., sub-section 3. It did not decide that the Attorney General should not be informed if the constitutionality of a pre-constitution statute was challenged.
In my opinion the purpose of O. 60 is to enable the Attorney General to argue for the constitutionality not only of post-constitution statutes but also of pre-Constitution ones as well. A large body of our statute law dates from before the Constitution. I cannot accept that O. 60 should be interpreted so that it would be possible for a pre-Constitution statute to be declared unconstitutional in an action between two private individuals without the knowledge of the Attorney General. Accordingly, I declined to consider any of the issues directed to the constitutionality of the statute and those issues have been adjourned pending the service of notice on the Attorney General under Order 60.
I also refused to enter into a consideration of the merits of the case. The District Court has been entrusted by the Oireachtas to make decisions under s. 24 of the Act of 1908, from which there is a right of appeal to the Circuit Court. The infant has not been brought into wardship and accordingly there is no general discretion to investigate all matters regarding the welfare of the child.
This is an inquiry under Article 40 of the Constitution as to whether the infant is validly detained under the District Court order. I must reach a single decision, namely, whether the detention of the child is or is not in accordance with law. If it is, the application must be refused. If it is not, the child must be discharged from the custody in which she is now held (see In re D. [1987] I.R. 449, at 457). Accordingly I limited the enquiry to questions concerning the statutory interpretation of the section and how the District Court hearing was carried out and whether fair procedures were applied.
Section 24, s. 1 provides:
“(1) If it appears to a justice on information on oath laid by any person who, in the opinion of the justice, is acting in the interests of a child or young person, that there is reasonable cause to suspect:
(a) that the child or young person has been or is being assaulted, ill-treated, or neglected in any place within the jurisdiction of the justice, in a manner likely to cause the child or young person unnecessary suffering, or to be injurious to his health; or
(b) that an offence under this Part of this Act, or any offence mentioned in the First Schedule to this Act, has been or is being committed in respect of the child or young person,
the justice may issue a warrant authorising any constable named therein to search for such child or young person, and, if it is found that he has been or is being assaulted, ill-treated, or neglected in manner aforesaid, or that any such offence as aforesaid has been or is being committed in respect of the child or young person, to take him to and detain him in a place of safety, until he can be brought before a court of summary jurisdiction, or authorising any constable to remove the child or young person with or without search to a place of safety and detain him there until he can be brought before a court of summary jurisdiction; and the court before whom the child or young person is brought may commit him to the care of a relative or other fit person in like manner as if the person in whose care he was had been committed for trial for an offence under this Part of this Act.
(2) A justice issuing a warrant under this section may by the same warrant cause any person accused of any offence in respect of the child or young person to be apprehended and brought before a court of summary jurisdiction, and proceedings to be taken against such person according to law.
(3) Any constable authorised by warrant under this section to search for any child or young person, or to remove any child or young person with or without search, may enter (if need be by force) any house, building, or other place specified in the warrant, and may remove the child or young person therefrom.
(4) Every warrant issued under this section shall be addressed to and executed by a constable, who shall be accompanied by the person laying the information, if such person so desire, unless the justice by whom the warrant is issued otherwise directs, and may also, if the justice by whom the warrant is issued so directs, be accompanied by a duly qualified medical practitioner.
(5) It shall not be necessary in any information or warrant under this section to name the child or young person.”
In relation to the construction of the section, it was submitted on behalf of the parents that the District Justice could not make the order taking the child into care until sixteen years of age because:
(a) Section 24 was intended to meet an emergency situation where the District Justice makes a decision based on there being reasonable cause to suspect a child is being seriously ill-treated. The section contemplates the order taking the child into the care of a fit person being made”on reasonable cause to suspect.” It must of its nature be temporary and short-term;
(b) If the Midland Health Board intended to proceed where there was no prosecution they should have applied under s. 58 of the Act of 1908 (as amended by s. 10, sub-s. 1 of the Children Act, 1941) on the grounds that the parents were not “exercising proper guardianship” in which case the District Justice is required by the section to make a finding and the parents would have an opportunity to oppose, which is not the case with section 24;
(c) A detention order until sixteen years of age can only be made under s. 21 where a parent has been successfully prosecuted, because under s. 24 the order is made “in like manner as if he had been committed for trial.” This implies that if there is no successful prosecution, the order is void. There must be compelling reasons why the child should be given into the custody of a person other than the parents (see In re J.H. an infant [1985] I.R. 375) and no such compelling reasons have been proved;
(d) The power to vary contained in s. 21 does not apply to an order made under s. 24 because it was not properly made;
(e) The automatic voiding of an order under s. 21 where there is an acquittal does not apply to an order under section 24. Therefore it cannot have been intended that an order under s. 24 could be made for the same period as an order under section 21.
(f) The Midland Health Board is not capable of being named as a fit person within the meaning of the Act because;
(i) It is not a society or body corporate established for the reception or protection of poor children or the prevention of cruelty to children and so within the express definition of section 38.
(ii) The context of the Act of 1908 implies that a “fit person” should be a natural person, except for the particular societies and bodies corporate mentioned in section 38. In particular, s. 23, which deals with religious persuasion, can only be read in the context of a fit person being a natural person.
(iii) Generally, the Midland Health Board’s own statutory powers do not include a power to act as a fit person. In particular, s. 6, sub-s. 2 of the Health Act, 1970, confers powers on the Health Board in connection with Part I of the Act of 1908. This excludes any other part of that Act.
(iv) The statutory powers of the Midland Health Board do not extend to the custody and care of children such as the child in this case.
In my opinion under s. 24 a District Justice has power, on being satisfied on information sworn on oath by someone who in his opinion is acting in the child’s interest, that there is reasonable cause to suspect the child is being assaulted, ill-treated or neglected in a place within his jurisdiction, to issue a warrant to a named guard to remove the child with or without search to a place of safety and detain the child there until he can be brought before a court of summary jurisdiction.
It is only at the stage of issuing the warrant that the District Justice acts on the basis of “reasonable cause to suspect.” When the matter comes before the District Court as a court of summary jurisdiction to hear the application to commit the child to the care of a relative or other fit person, the District Justice is not entitled to make the order because he has reasonable cause to suspect. First, the parents must be served with a summons to attend in accordance with rule 42 of the Summary Jurisdiction Rules, 1909 (S.R.O. No. 952). These rules were drawn up, under the Act of 1908, to regulate the procedure of courts of summary jurisdiction under the Act. Then the District Justice must enter on a judicial consideration of the matter, observing the requirements of natural and constitutional justice and reach a decision on the evidence. If this is done, he is entitled to make an order under section 24. I accept that the District Justice must be satisfied that there are compelling reasons why the child should be given into the custody of a person other than its parents (see In re J.H. an infant [1985] I.R. 375) but if he was satisfied on the evidence before him that the child had been sexually abused by the father and that the mother had failed to protect the child that would constitute compelling reasons why the child should be removed.
The order which he is entitled to make after a hearing in the District Court is to commit the child “to the care of a relative or other fit person in like manner as if the person in whose care he was had been committed for trial for an offence under this Part of the Act.” This refers to the power to commit a child to care under section 21. Under that section a District Justice may “if satisfied upon inquiry that it is expedient so to deal with the child order that the child be taken out of the custody charge or care of the person committed for trial and be committed to the care of a relative of the child or some other fit person named by the court (such relative or other person being willing to undertake such care) until he attains the age of sixteen years or for any shorter period and that court or any court of like jurisdiction may of its own motion, or on the application of any person, from time to time by order renew, vary and revoke any such order.”Strictly speaking, the question of whether the power to vary or revoke applies does not arise in this case since the order of the District Justice itself prescribed that the order should remain in force until the 1st November, 1995, unless sooner revoked or varied. But it seems to me that it must of necessity be part of the power given.
Section 21, sub-s. 3 would also apply because it relates to the manner in which an order is made under section 21. Sub-section 3 provides:
“Every order under this section shall be in writing, and any such order may be made by the court in the absence of the child or young person; and the consent of any person to undertake the care of a child or young person in pursuance of any such order shall be proved in such manner as the court may think sufficient to bind him.”
In s. 21 the provision in sub-s. 2 that “no order shall be made under this section unless the parent or legal guardian has been convicted of or committed for trial for the offence, or is under committal for trial for having been, or has been proved to the satisfaction of the court making the order to have been, party or privy to the offence, or has been bound over to keep the peace towards the child or young person, or cannot be found” does not apply to an order under s. 24 because it does not relate to the manner in which an order under s. 21 is made. Even though it does not apply, that does not mean that a District Justice would not have to consider the role of a mother in reaching a decision in relation to section 24. Both father and mother are joint guardians. If an allegation of sexual abuse is made against a father and substantiated to the satisfaction of the District Justice, the mother is not automatically deprived of the custody of the child. The District Justice would also have to consider whether she could safeguard the child or whether it would be preferable to remove the child altogether from both parents.
Sub-section 4 of s. 21, also relates to an order “made under this section” and it does not apply to an order under s. 24 because it does not relate to the manner in which an order under s. 21 is made. It provides:
“Where an order is made under this section in respect of a person who has been committed for trial, then, if that person is acquitted of the charge, or if the charge is dismissed for want of prosecution, the order shall forthwith be void, except with regard to anything that may have been lawfully done under it.”
If an order were made under s. 24 and a criminal charge were subsequently brought against the parent, who was acquitted, there would be nothing to prevent such a parent applying to have the order under s. 24 revoked.
As to whether the Midland Health Board is capable of being a fit person, there are a number of facets to the argument. The Midland Health Board does not fit the description of a body corporate established for the reception or protection of poor children or the prevention of cruelty to children. But s. 38 does not provide an exclusive definition. It does not confine the meaning to such bodies corporate. Section 38, sub-s. 1 provides:
“In this Part of this Act, unless the context otherwise requires, the expression “fit person,” in relation to the care of any child or young person, includes any society or body corporate established for the reception or protection of poor children or the prevention of cruelty to children.”
Under the Interpretation Act, 1937, (s. 11) “person” includes a body corporate unless the contrary intention appears.
Therefore, unless there is something in the context of the Act of 1908 which requires the meaning of “fit person” to be confined to a natural person or the specific societies and bodies mentioned in s. 38, a body corporate is entitled to be considered as eligible to be a fit person. Section 23, which concerns religious persuasion, would not preclude a body corporate from being a fit person. While the Midland Health Board could not be “a person of the same religious persuasion”it could be “a person who gives such undertaking to the court as seems to the court sufficient in relation to the child’s religion.”
Therefore in my opinion there is nothing in the context of the Act which would preclude a body corporate which possesses the necessary powers to act in that capacity, from being appointed a fit person even though it could not be described as a body corporate established for the reception or protection of poor children or the prevention of cruelty to children.
As to whether the Midland Health Board possesses the necessary statutory powers to act as a fit person, s. 6, sub-s. 1 of the Health Act, 1970, provides that a health board shall perform the functions conferred on it under the Act, and any other functions which, immediately before its establishment, were performed by a local authority (other than as a sanitary authority) in the functional area of the health board in relation to the operation of services provided under or in connection with the administration of the enactments specified in sub-section 2. Among the functions which were performed by the local authority were functions in connection with the administration of Part I of the Act of 1908 (concerning infant life protection) and ss. 2 and 3 of the Children (Amendment) Act, 1957. These enactments are specified in s. 6, sub-s. 2 at paragraph (g). This however does not prevent the health board from carrying out other functions conferred on it under the Act of 1970 connected with other parts of the Act of 1908 which were not carried out by the local authority.
Under s. 66, sub-s. 2 of the Act of 1970, a health board shall make available without charge a health examination and treatment service for pupils attending a national school.
It is under this section that the Midland Health Board claims to derive its power to take the child into care under the s. 24 order. In my opinion, if a child has suffered sexual abuse, her health is endangered and she is in need of treatment. The provision of care is therefore within the broad description of a treatment service. (See Attorney General v. Eastern Railway Company (1880) 11 Ch. D. 449 and 5 App. Cas. 473). If the health board is to provide an adequate service it is essential that it be involved either directly as a fit person or indirectly with the fit person nominated. There is no reason why a suitable employee of the health board should not be named as a fit person but if for any reason that person ceased to be employed by the health board or became incapacitated, another application would have to be made to the District Court for another person to be appointed. There are therefore good reasons why the board itself should be appointed. It would not seem wise that one of the actual foster parents should be named as this would identify the whereabouts of the child in a case where secrecy is deemed essential.
For the above reasons I am satisfied that District Justice O’Sullivan had power to make the order which he did make committing the child to the care of the Midland Health Board as a fit person until she is sixteen unless the order is sooner revoked or varied.
In drawing up the order some confusion crept in by referring to matters which more properly related to an application under s. 58, namely, reference to a power to send to a certified industrial school. But this does not affect the essentials of the order which are that the child is committed to the care of the Midland Health Board as a fit person.
I am not concerned with whether the Midland Health Board should have proceeded under s. 58 in the first place. I express no opinion on whether that is appropriate. My concern is whether the order made under s. 24 is valid or not. In my opinion the District Justice had the statutory power to make the order which he did make and I now turn to the actual District Court hearing.
It was submitted on behalf of the parents in relation to the hearing in the District Court that a video of an interview between the child and Dr. Maire Woods should have been made available to the parents and/or their solicitor prior to the hearing, that the District Justice should have viewed the video before reaching his decision, and that medical reports from Dr. Woods, Dr. Hensey and Dr. Alford should have been supplied prior to the hearing to the parents and/or their solicitor. There is no great conflict of evidence on the affidavits as to what happened. The initial hearing on the 4th November, 1986, was adjourned at the request of the parents’ solicitor to the 18th November, 1986. It started at 3 p.m. and ended at 5 p.m. At the hearing, Margaret Groarke and Carmel Dolan, social workers, gave evidence of their involvement and of an interview with the child on the 21st October. Dr. Alford of the Midland Health Board gave evidence as to her failure to carry out a physical examination of the child due to her hysterical reaction. Dr. Maire Woods gave evidence of her interview with the child and of the physical examination under anaesthetic carried out by herself and Dr. Owen Hensey at Temple Street Hospital. All of them were cross-examined by Mr. Barra Flynn, solicitor for the parents. Both parents gave evidence. The written report of Dr. Woods was given to Mr. Flynn prior to the hearing.
Both parents denied they had ever seen Dr. Woods’ report before the hearing.
In view of the fact that there was no affidavit from Mr. Barra Flynn I asked that he would attend to give evidence, which he did.
He said he asked for Dr. Woods’ report at the adjournment on the 4th November. He was furnished with a copy on the morning of the proceedings but he had been in touch by ‘phone with Dr. Woods in between the two dates and she had told him her opinion. He did ask if he could have sight of the video but was told they did not have it with them. There was a report by Dr. Woods and also a photostat of the operation chart of the physical examination carried out in Temple Street. A type-written copy of the information on the operation chart was also prepared by Dr. Woods to which she added her conclusions in a few sentences. This was dated the 18th November, the date of the hearing. Mr. Flynn could not remember exactly the report handed to him but it is probable that he received the report and the copy of the operation chart annexed. He did remember the one inch measurement mentioned.
He said he gave the report to the father and both parents read it. He said that he watched their reaction to it and asked them the course of action to be taken in the light of the report. He said they vehemently denied they were involved. Even though both parents denied on affidavit that they saw the report, which denial was repeated by the father in oral evidence, I am unable to accept their version. Mr. Flynn is an experienced solicitor. He said he watched them read the report and watched their reaction to it. That is a detail which is to me totally convincing.
Mr. Flynn did not ask the District Justice to view the video and he did not ask the court to make the video available to him.
Dr. Woods also gave evidence to clear up one area where there was some confusion, namely, whether it was she or Dr. Hensey who carried out the physical examination of the child. Dr. Woods said she carried out the examination and Dr. Hensey who is a consultant paediatrician in Temple Street, was present. She asked him to come and he observed the examination. Dr. Woods herself filled up the operation book at Temple Street, the nurse having filled in the names. The report describes what was visible on inspection. A photostat was sent to the Director of Community Care of the Midland Health Board. There is also the typed report, dated the 18th November, which has the same information together with a conclusion in the report. Dr. Woods said she gave evidence to that effect. It was put to her in cross-examination that Dr. Hensey’s report did not contain any conclusions and she said that he was not being asked to write a report. Dr. Woods’ evidence cleared up a misapprehension that it was Dr. Hensey who carried out the physical examination. In my opinion there was no evidence to show that the hearing in the District Court was inadequate in any way. The solicitor was in touch with Dr. Woods on several occasions prior to the hearing. The District Justice heard evidence, including medical evidence of a physical examination, where the conclusion was that sexual abuse had occurred. He was not asked to view the video. He was not obliged to view it though he could have asked for it if he felt it necessary. The witnesses for the Health Board were cross-examined by an experienced solicitor. Both parents gave evidence. There was evidence on which the District Justice was entitled to reach the conclusion which he did. Therefore the order made is valid and the application for habeas Corpus is refused.

The State (Attorney General) v. Shaw

[1979] IR 135
Finlay P.

4th May 1977

This is an application to make absolute, notwithstanding cause shown, a conditional order of certiorari to quash so much of the order of the learned District Justice dated the 28th July, 1976, as awarded to the defendant £45 costs against the Attorney General upon a refusal by the District Justice to make a condemnation order pursuant to s. 207 of the Customs Consolidation Act, 1876. The precise and only point of law arising is whether a District Justice has jurisdiction to award costs against the Attorney General in proceedings instituted by him under s. 207 of the Act of 1876.
In The Attorney General v. Crawford 1 a divisional Court of the High Court decided that in proceedings for the recovery of a penalty under s. 186 of the Act of 1876, brought at the suit of the Attorney General, the District Justice had no jurisdiction to award costs in dismissing the matter. The reasoning of that decision was, first, that rule 37 of the District Court Rules, 1926 (which applied to those proceedings) both prohibited the awarding of costs against the Attorney General in any case of summary jurisdiction and was expressly inapplicable to summary proceedings under the Customs Consolidation Act. Secondly, that there was no inherent jurisdiction in the District Court to award costs in the absence of express statutory power. Thirdly, that, apart from the provisions of rule 37 of the Rules of 1926, there was no other possible statutory jurisdiction to award costs unless s. 5 of the Customs, Inland Revenue, and Savings Bank Act, 1877, applied; and that, since that section was referable to proceedings at the suit of the Crown and since it had not been adapted, s. 5 of the Act of 1877 could not be applicable.
There is not any distinction which is relevant to the issue before me between proceedings under s. 186 and those under s. 207 of the Act of 1876. Rule 67 of the District Court Rules, 1948 (which applies to these proceedings), though different in form, is in no material way different in meaning or effect from the provisions of rule 37 of the Rules of 1926.
Therefore, if I am to allow the cause shown by the respondent, I must refuse to follow the decision in The Attorney General v. Crawford. 1 On behalf of the respondent Mr. O’Flaherty accepts that that is so but urges me not to apply that decision. He accepts that Crawford’s Case 1 decided correctly that the District Justice has no inherent jurisdiction to award costs. He further accepts that rule 67 of the Rules of 1948 does not give to the District Justice any jurisdiction to award costs in these proceedings. However, he argues that in Crawford’s Case 1 the Court erred in holding that s. 5 of the Act of 1877 did not apply because it had not been adapted.
Section 5 of the Act of 1877 states:” “In all informations, prosecutions, suits, or proceedings at the suit of the Crown under the Customs Acts the same rule as to costs shall be observed as in suits or proceedings between subject and subject.”
It is contended that this section was inconsistent with the provisions of the Constitution of the Irish Free State, 1922, and with the provisions of the Constitution of Ireland, 1937, to the extent only that it referred to the Crown, and that it should be severed and carried forward into the existing law of Ireland by excluding only the words “at the suit of the Crown.” If it is so carried forward, it is further contended that it must be construed as granting to every Court (in prosecutions, suits, or proceedings under the Customs Acts) a jurisdiction to award costs in accordance with the result, so that, in the well-known phrase, they will “follow the event.” I am satisfied that both these contentions fail.
Section 5 of the Act of 1877 must be construed, in my view, as having had one purpose and one purpose only which was to remove, in relation to proceedings under the Customs Acts, a privilege or immunity which would otherwise have attached to the Crown. Since it has no function of any description under the Constitution of Ireland, the Crown can have no privilege or immunity in our law. It follows that a statutory provision which limits or makes an exception to the privileges or immunity of the Crown must be inconsistent, in its entirety, with the Constitution and that such provision has not been carried forward by Article 50 of the Constitution.
This problem can also be approached in a different manner which yields the same result. In Maher v. The Attorney General 2 the Supreme Court dealt with the question of the severance of a provision of a statute of the Oireachtas. At page 147 of the report FitzGerald C.J. said:” “The submission means that it is within the jurisdiction of the Court to sever or separate the word ‘conclusive’ so as to give the paragraph, with that word removed, constitutional validity. The application of the doctrine of severability or separability in the judicial review of legislation has the effect that if a particular provision is held to be unconstitutional, and that provision is independent of and severable from the rest, only the offending provision will be declared invalid. The question is one of interpretation of the legislative intent. Article 15, s. 4. sub-s. 2, of the Constitution lays down that every law enacted by the Oireachtas which is in any respect repugnant to the Constitution or to any provision thereof shall, but to the extent only of such repugnancy, be invalid; therefore there is a presumption that a statute or a statutory provision is not intended to be constitutionally operative only as an entirety. This presumption, however, may be rebutted if it can be shown that, after a part has been held unconstitutional, the remainder may be held to stand independently and legally operable as representing the will of the legislature. But if what remains is so inextricably bound up with the part held invalid that the remainder cannot survive independently, or if the remainder would not represent the legislative intent, the remaining part will not be severed and given constitutional validity. It is essentially a matter of interpreting the intention of the legislature in the light of the relevant constitutional provisions, and it must be borne in mind in all cases that Article 15, s. 2, sub-s. 1, of the Constitution provides that ‘the sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.’ If, therefore, the Court were to sever part of a statutory provision as unconstitutional and seek to give validity to what is left so as to produce an effect at variance with legislative policy, the Court would be invading a domain exclusive to the legislature and thus exceeding the Court’s competency. In other words, it would be seeking to correct one form of unconstitutionality by engaging in another. The usurpation by the judiciary of an exclusively legislative function is no less unconstitutional than the usurpation by the legislature of an exclusively judicial function. The right to choose and formulate legislative policy is vested exclusively by the Constitution in the national parliament.”
Whilst the principle thus enunciated was directed to the interpretation of a statute of the Oireachtas in the light of the provisions of Article 15 of the Constitution, I am satisfied that the same principle applies to a question which arises under Article 50 of the Constitution with regard to the consistency of a pre-Constitution statute. Applying this test to the suggested severance of s. 5 of the Act of 1877, the exclusion of the words “at the suit of the Crown” would leave the remainder of the section in a condition which does not represent the legislative intent, because a section limiting a Crown privilege would have been thereby converted into a section giving a jurisdiction to award costs in all Customs cases.
Even if this section as so severed or amended were part of our law, I am satisfied that it does not justify the awarding of costs. In my view, the provision that “the same rule as to costs shall be observed as in suits or proceedings between subject and subject” cannot apply to any and every suit or proceedings between subject and subject. It must either be confined to suits and proceedings under the Customs Acts or at least to suits and proceedings brought by the same procedure and in the same court as material proceedings under the Customs Act. Taking of these alternatives that most favourable to the respondent, which is the wider one, it seems clear that a suit or proceeding between subject and subject brought in a summary manner in the District Court is governed, as to the jurisdiction to award costs, by rule 67 and by rule 67 only. However, by the express proviso to rule 67, that rule has no application to proceedings under the Customs Acts and the District Court has no jurisdiction to award costs against anyone in such proceedings.
Therefore, I am satisfied that The Attorney General v. Crawford 1 was correctly decided, that I should follow it, and that I must disallow the cause shown and make absolute the conditional order.

Mallon v. Minister For Agriculture and Food

[1996] 1 I.R. 517

Hamilton C.J.
26th April 1996

This is an appeal brought by the applicant against portion of an order made by the High Court (Costello J.) on the 22nd July, 1994.
By such order the High Court had declared that:
“Article 3, sub-art. 3. of Statutory Instrument No. 171 of 1990 being the European Communities (Control of Veterinary Medicinal Products and their Residues) Regulations, 1990, was invalid having regard to the Constitution.
That the following words in art. 11, sub-art. 1 of Statutory Instrument No. 171 of 1990 being the European Communities (Control of Veterinary Medicinal Products and their Residues) Regulations, 1990, were invalid having regard to the provisions of the Constitution, namely the words ‘or to imprisonment for a term not exceeding two years or to both’,”
and had ordered that the applicant’s application for an order of prohibition prohibiting the fourth respondent from hearing or determining a prosecution brought by the first respondent against the applicant under the European Communities (Control of Oestrogenic, Androgenic, Gestagenic and Thyrostatic Substances) Regulations, 1988, as extended by the European Communities (Veterinary Medicinal Products and their Residues) Regulations, 1990, doth stand refused, and had declared that the said prosecution should proceed on the basis that art. 32, sub-art. 6 of the said statutory instrument No. 218 of 1988 has not been repealed and is valid and that art. 11, sub-art. 1 of the said statutory instrument No. 171 of 1990 is to be read and enforced as if the words “or to imprisonment for a term not exceeding two years or to both” had been deleted therefrom.
The applicant has appealed against the following parts of the order made by Costello J.:
(a) The refusal by Costello J. to grant a prohibition restraining the fourth respondent from proceeding to hear and determine eight summonses entitled The Director of Public Prosecutions v. Frank Mallon, the subject matter of these proceedings, as claimed in paragraph 4 (a) of the notice of motion.
(b) The refusal by Costello J. to grant the declarations at 4 (c) and (d) of the said notice of motion.
(c) The refusal by Costello J. to grant the order of certiorariclaimed in the additional reliefs quashing the decision of the first respondent to make the European Communities (Control of Veterinary Medicinal Products and their Residues) Regulations, 1988 to 1990 being S.I. No. 218 of 1988 and S.I. No. 171 of 1990.
(d) The declaration by Costello J. that the trial could proceed.
(e) The order of Costello J. severing the impugned portion of the said regulations namely art. 3, sub-art. 3 (b) of S.I. No. 171 of 1990 and art. 11, sub-art 1 of S.I. No. 171 of 1990 and allowing the said regulations to stand after this severance.
The respondents have not appealed against any portion of the order made by Costello J.
The facts giving rise to these proceedings may be briefly summarised as follows:
1. Upon a complaint being made by the first respondent, the Minister for Agriculture, Food and Forestry, the fourth respondent, District Judge John P. Brophy, issued summonses requiring the applicant to appear as defendant on the hearing of the said complaints at the District Court at The Courthouse, Kells, in the County of Meath.
2. There were, in all, eight complaints and eight summonses issued.
3. Seven of the complaints and summonses relate to the administration to farm animals of a prohibited substance, to wit, a veterinary medicine containing clembuterol other than under and in accordance with a licence under art. 5 of the European Communities (Control of Veterinary Medicinal Products and their Residues) Regulations, 1988 and 1990 and in respect of which no product authorisation under the European Communities (Veterinary Medicinal Products) Regulations, 1986 (S.I. No. 22 of 1986) was in force, in contravention of art. 4, sub-art. 1 of the European Communities (Control of Veterinary Medicinal Products and their Residues) Regulations, 1988 and 1990 and contrary to art. 11, sub-art 1 of the said regulations of 1988 and 1990 made pursuant to s. 3 of the European Communities Act, 1972.
4. The said summonses were directed to Frank Mallon who was alleged to have administered or to have caused to be administered the said prohibited substance.
5. The eight summons alleged that the applicant did have in his possession a prohibited substance, to wit, two by 100 ml. bottles of a clear liquid substance which consisted of or contained oestradiol benzoate and nortestosterone decanoate to which art. 13 of the European Communities (Control of Oestrogenic, Androgenic, Gestagenic and Thyrostatic Substances) Regulations, 1988 (S.I. No. 218 of 1988) applies, in contravention of art. 13, sub-art. 2 of the said regulations and contrary to art. 32, sub-art. 1 of the said regulations made pursuant to the European Communities Act, 1972.
6. S.I. No. 218 of 1988, entitled the European Communities (Control of Oestrogenic, Androgenic, Gestagenic and Thyrostatic Substances) Regulations 1988, was made by the Minister for Agriculture and Food on the 2nd September, 1988, in exercise of the powers conferred on him by s. 3 of the European Communities Act, 1972, for the purpose of giving effect to Council Directive No. 81/602/EEC of the 31st July, 1981, Council Directive No. 81/851/EEC of the 28th September, 1981, insofar as it relates to substances with oestrogenic, androgenic, gestagenic or thyrostatic action, Council Directive No. 85/358/EEC of the 16th July, 1985, Council Directive No. 86/469/EEC of the 16th September, 1986, Council Directive No. 88/146/EEC of the 7th March, 1988, and Council Directive No. 88/299/EEC of the 17th May, 1988.
7. The other regulations referred to in the summonses were S.I. No. 171 of 1990, entitled European Communities (Control of Veterinary Medicinal Products and their Residues) Regulations, 1990, and were made by the Minister for Agriculture and Food on the 6th July, 1990, in exercise of the powers conferred on him by s. 3 of the European Communities Act, 1972, and for the purpose of giving further effect to Council Directive No. 81/851/EEC of the 28th September, 1981, and Council Directive No. 83/469/EEC of the 16th September, 1986.
8. The regulations contained a number of provisions and art. 32, sub-art. 1 of the said regulations provided that:
“A person who contravenes any provision of these regulations shall be guilty of an offence”
and art. 32, sub-art. 6 of the said regulations provided that:
“a person guilty of an offence under these regulations shall be liable on summary conviction to a fine not exceeding £1,000 or, at the discretion of the court to imprisonment for a term not exceeding one year or to both such fine and to such imprisonment.”
9. Article 3, sub-art. 3 of the regulations of 1990 provided that:
“Regulation 32 (6) of the principal regulations is hereby amended as respects offences committed after the commencement of these regulations by the substitution of ‘two years’ for ‘one year’.”
The effect of that amendment was that a person who contravened any provision of the regulations of 1988 would be liable on summary conviction to a fine not exceeding £1,000 or; at the discretion of the court to imprisonment for a term not exceeding two years or to both such fine and such imprisonment.
10. With regard to contraventions of the provisions of the regulations of 1990, art. 11, sub-art. 1 thereof provided that:
“A person who contravenes a provision of these regulations or a condition of a licence under these regulations shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000 or to imprisonment of a term not exceeding two years or to both.”
Consequently, the position was that –
(a) a person who contravened any of the provisions of the regulations of 1988 after the enactment of the regulations of 1990 and
(b) any person who contravened any of the regulations of 1990, was liable on conviction thereof to a fine not exceeding £1,000 or to imprisonment for a term not exceeding two years or to both.
On the 15th November, 1993, the applicant herein sought and obtained the leave of the High Court to apply by way of an application for judicial review for
(a) an order of prohibition prohibiting the fourth respondent from hearing or determining the prosecutions brought by the first respondent against the applicant.
(b) A declaration that the said regulations of 1988 and 1990 areultra vires s. 3 of the European Communities Act, 1972, and are not authorised by the terms of the aforesaid Directives, or at all.
(c) A declaration that s. 3, sub-s. 2 of the European Communities Act, 1972, contravenes Article 15, s. 2, sub-s. 1 of the Constitution of Ireland, 1937, is unconstitutional and void.
By notice of motion, the applicant sought and was granted leave to seek additional reliefs and to amend his statement of grounds.
The following additional reliefs were sought:
(a) Judicial review by way of certiorari quashing the decision of the first respondent to make the European Communities (Control of Veterinary Medicinal Products and their Residues) Regulations, 1988 and 1990 being S.I. No. 218 of 1988 and S.I. No. 171 of 1990.
(b) Further and in the alternative, a declaration that S.I. No. 218 of 1988 and S.I. No. 171 of 1990 are ultra vires the powers of the first respondent and are void and of no legal effect and are made contrary to Article 38 of Bunreacht na hÉireann .
(c) And further an order allowing the applicant to amend his statement so as to show the following reasons why the relief is sought as follows:
(i) The making of the said regulations was ultra vires and void in that the statutory instruments failed to implement Council Directive No. 85/358/EEC and in particular art. 5 thereof, and in the premises to make the regulations was void and of no effect and was made contrary to s. 3 of the European Communities Act, 1972, Article 15, s. 3, sub-s. 1 of the Constitution and the Treaty of Rome.
(ii) Further the said regulations are ultra vires as being contrary to Articles 43, s. 2 and 40, s. 3 of Bunreacht na hÉireann .
(iii) Further the said S.I. No. 171 of 1990 provides for the punishment of a minor offence by imprisonment for two years contrary to Article 38 of Bunreacht na hÉireann and by reason whereof both regulations are made ultra vires and have no legal effect.
As appears from the judgment of the learned trial judge there were two main issues raised in these proceedings, the first relating to the constitutional law issue and the second to the community law issue.
The Constitutional Issue
Article 38, s. 2 of the Constitution provides that:
“Minor offences may be tried by courts of summary jurisdiction.”In the course of his judgment, the learned trial judge stated:
“I have come quite clearly to the conclusion that an offence which attracts a two year prison sentence cannot be regarded as a ‘minor’ one and I am quite satisfied that, insofar as these regulations provide for the summary trial of an offence which carries such a term, they infringe Article 38.”
His finding in this regard has not been challenged in this appeal by any of the parties thereto.
Having so found he made the order hereinbefore referred to, namely that art. 3, sub-art. 3 of the regulations of 1990 was invalid having regard to the provisions of the Constitution and that the words contained in art. 11, sub-art. 1 of the same regulations “or to imprisonment for a term not exceeding two years or to both” were invalid having regard to the provisions of the Constitution.
The applicant’s appeal to this Court relates to the consequences of such findings by the learned High Court Judge.
In the course of his judgment he stated that:
“I turn now to the consequences of the finding of invalidity which I have made. First of all, as to the invalidity resulting from art. 3 of the regulations of 1990, the invalidity of this regulation attached to it at the time it was enacted, the regulation was therefore ineffective to repeal art. 32, sub-art. 6 of the regulations of 1988, see Murphy v. The Attorney General [1982] I.R. 241. It follows therefore that the regulations of 1988 remain in full force and effect and were unrepealed by art. 3, sub-art. 3 of the regulations of 1990. I am quite satisfied that the invalidity to which I have referred did not render the entire of the regulations of 1988 invalid, nor did it render the entire of the regulations of 1990 invalid, and this is so, even though, as is pointed out on behalf of the applicant, these two regulations are to be read as one. The effect, the consequence of the finding of invalidity, is that the purported amendment to the regulations of 1988 was a nullity and the regulations of 1988 and in particular art. 3, sub-art. 6 remain in full force and effect.
I turn then to the invalidity of art. 11, sub-art. 1 of the regulations of 1990. The invalidity attaches and arises from the last words of the paragraph which I have quoted. If these words are severed from the rest of the paragraph, then the paragraph is valid and the question for determination is whether or not the Court is permitted to sever the words which are impugned. I am satisfied, having considered the authorities, in particular Maher v. The Attorney General [1973] I.R. 140 and Desmond v. Glackin (No. 2) [1993] 3 I.R. 67 that the doctrine of severance should be applied by the Court in this case. The paragraph is only invalid insofar as it offends the Constitution. The offence of the Constitution is in the provision of ‘a term of imprisonment not exceeding two years in respect of an offence which can be tried summarily.’ If these words can be deleted from the paragraph and in addition the last words of the paragraph for the same reasons, this means that the rest of the words can stand. I do not think that this is in any way a usurpation of legislative power by the courts. I think the analogy to what was done by the Supreme Court in Desmond v. Glackin (No. 2) is a close one and the effect of it is that the Minister’s intention to impose a fine as a penalty and a term of imprisonment of two years as a penalty and/or a term of imprisonment of two years and a fine of up to £1,000 cannot be given effect because of the constitutional invalidity to which I have referred. But this does not mean that the Court is exercising legislative powers. It is merely, in my view, doing as the Supreme Court did in Desmond v. Glackin (No. 2) , namely excising from the impugned provision the words which offended the Constitution.”
Being of this view, the learned trial judge ordered the said prosecution against the applicant should proceed on the basis that art. 32, sub-art. 6 of the Regulations of 1988 had not been repealed and was valid and that art. 11, sub-art. 1 of the Regulations of 1990 is to be read and in force as if the words “or to imprisonment for a term not exceeding two years or to both”had been deleted therefrom.
Counsel for the applicant has submitted that the learned trial judge erred in law, in
(a) holding that the regulations of 1988 remained in full force and effect and were not amended by art. 3, sub-art. 3 of the Regulations of 1990 and
(b) holding that art. 11, sub-art. 1 of the Regulations of 1990 was valid once the words “or to imprisonment for a term not exceeding two years or to both” were excised therefrom.
With regard to (a), counsel for the applicant submitted that –
(1) the learned trial judge was wrong in considering the provisions of art. 3, sub-art. 3 of the Regulations of 1990 in isolation;
(2) that he should have considered art. 32, sub-art. 6 of the Regulations of 1988 as amended;
(3) Article 32, sub-art. 6 as amended reads:
“A person guilty of an offence under these regulations shall be liable on summary conviction to a fine not exceeding £1,000 or at the discretion of the court to imprisonment for a term not exceeding two years or to both such fine and such imprisonment.”

(4) That the regulations as amended should have been held invalid having regard to the provisions of the Constitution.
The weakness of this argument arises because of the finding of the learned trial judge that the provisions of art. 3, sub-art. 3 of the Regulations of 1990 were invalid having regard to the provisions of the Constitution.
The effect of this finding is that the said art. 3, sub-art. 3 was invalidab initio, never had the force of law and was ineffective to amend art. 32, sub-art. 6 of the Regulations of 1988.
That being so, the learned trial judge was correct in his findings and order in this regard and I would dismiss the applicant’s appeal on this aspect of the case.
With regard to (b), counsel for the applicant submitted that the learned trial judge was wrong in holding that art. 11, sub-art. 1 of the Regulations of 1990 could stand once the words which were found to be invalid having regard to the provisions of the Constitution namely “or to imprisonment for a term not exceeding two years or to both” were excised therefrom.
Article 12, s. 4, sub-s. 2 of the Constitution states 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.”
As stated by Finlay C.J. in the course of his judgment in Desmond v. Glackin (No. 2) [1993] 3 I.R. 67 at p. 117:
“In dealing with that proviso this Court in Maher v. The Attorney General [1973] I.R. 140 stated as follows at p. 147 of the report:
‘The application of the doctrine of severability or separability in the judicial review of legislation has the effect that if a particular provision is held to be unconstitutional, and that provision is independent of and severable from the rest, only the offending provision will be declared invalid. The question is one of interpretation of the legislative intent. Article 15, s. 4, sub-s. 2 of the Constitution lays down that every law enacted by the Oireachtas which is in any respect repugnant to the Constitution or to any provision thereof shall, but to the extent only of such repugnancy, be invalid; therefore there is a presumption that a statute or statutory provision is not intended to be constitutionally operative only as an entirety. This presumption, however, may be rebutted if it can be shown that, after a part has been held unconstitutional, the remainder may be held to stand independently and legally operable as representing the will of the legislature. But if what remains is so inextricably bound up with the part held invalid that the remainder cannot survive independently, or if the remainder would not represent the legislative intent, the remaining part will not be severed and given constitutional validity’.”
In the case of Desmond v. Glackin (No. 2) [1993] 3 I.R. 67 this Court held that s. 10, sub-s. 5 of the Companies Act, 1990, was invalid having regard to the provisions of the Constitution to the extent only that it contains the words “punish in like manner as if he had been guilty of contempt of court” and declared that in consequence upon such finding there must be deleted from the provisions of s. 10, sub-s. 6 of the Companies Act, 1990, the words “without prejudice to its power under sub-s. 5 the court may, after a hearing under that sub-section.”
Counsel on behalf of the respondents relied on the decision of this Court in Desmond v. Glackin (No. 2) [1993] 3 I.R. 67 in support of the approach taken with regard to severability by the learned trial judge.
In that case the Court had considered the provisions of the two subsections, namely, s. 10, sub-ss. 5 and 6 of the Companies Act, 1990, which provided two quite separate methods of procedure and as stated by Finlay C.J. at page 119:
“The Court is satisfied that the proper interpretation of these two sub-sections leads to a conclusion that the legislature intended not only the provision for punishment which is held to be inconsistent with the Constitution, but also, as a separate discretionary jurisdiction in the court, the powers contained in s. 10, sub-section 6. If, in addition to the word deleted from s. 10, sub-s. 5 by the order of the High Court, there is added a consequential deletion of the words contained in s. 10, sub-s. 6: ‘without prejudice to its power under subsection 5, the Court may, after a hearing under that sub-section’ then there remains in the combined provisions of the two sub-sections one of the original intentions of the legislative and such a severance in the view of the Court would be permissible, having regard to the principles which have been set out.”
It is clear from the judgment that in reaching its conclusion in that case, the Court had regard to the principles with regard to severability set forth in the passage from Maher v. The Attorney General [1973] I.R. 140 and that the Court was satisfied that the legislature intended not only the provision for punishment which was held to be inconsistent with the Constitution but also a separate discretionary jurisdiction in the court, viz. the powers contained in s. 10, sub-s. 6, and consequently that severance would be permissible.
It is, however, clear form the judgment of this Court in Maher v. The Attorney General [1973] I.R. 140 that severability is only permissible if the remainder of a statute or regulation can be held to stand independently and legally operable as representing the will of the legislature and what remains is not so inextricably bound up with the part held invalid that it cannot survive independently as representing the will of the legislature.
If it does not, the remaining part will not be severed and given constitutional validity.
Consequently, the question to be considered by me is whether the provision of art. 11, sub-art. 1 of the Regulations of 1990 with the relevant words excised therefrom is severable and as so excised is independent and legally operable as representing the will of the Minister acting in pursuance of the powers conferred on him by s. 3 of the European Communities Act, 1972, or is what remains so inextricably bound up with the part held invalid that it cannot survive independently.
As already pointed out, art. 11, sub-art. 1 of the Regulations of 1990 provides that:
“A person who contravenes a provision of these regulations or a condition of a licence under these regulations shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding two years or to both.”
It was clearly the intention of the Minister for Agriculture and Food in enacting this regulation to create an offence and that such offence should be regarded as of such a serious nature as to render a person who contravened the regulations liable not only to a fine of £1,000 but to imprisonment for a term not exceeding two years or to a combination of both at the discretion of the District Court.
This is illustrated by the fact that in art. 3, sub-art. 3 aforesaid, he purported to increase the penalty provided for in art. 32, sub-art. 6 of the regulations of 1988 from one year’s imprisonment to two years’ imprisonment.
That was the intention of the Minister for Agriculture and Food and it was clearly not his intention that the punishment for such an offence was to be limited to a fine not exceeding £1,000.
Consequently, it was not in accordance with the legislative intent of the Minister for Agriculture and Food to so limit the penalty.

The penalties provided in respect of the offences created by the regulations were inextricably bound up and excising the words “or to imprisonment for a term not exceeding two years or to both” was not in accordance with such legislative intent.
Consequently, I am satisfied that the learned trial judge erred in law in allowing the regulation to stand with the said words excised and would allow the appeal brought by the applicant in respect of this aspect of the case.
The applicant is entitled to a declaration that the words “and shall be liable on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding two years or to both” contained in art. 11, sub-art. 1 of S.I. No. 171 of 1990 are invalid having regard to the provisions of the Constitution and the applicant’s appeal in this regard should be allowed.
With these words excised, art. 11, sub-art. 1 now provides that:
“A person who contravenes a provision of these Regulations or a condition of a licence under these Regulations shall be guilty of an offence.”
No penalty is now provided in respect of contravention of the offences created by the regulations contained in S.I. No. 171 of 1990.
Seven of the summonses brought against the applicant relate to alleged breaches of the regulations contained in the said statutory instrument and as there is no penalty now provided for breach of these regulations, the applicant is entitled to an order prohibiting the fourth respondent from hearing or determining a prosecution brought by the first respondent against the applicant under the regulations contained in S.I. No. 171 of 1990.
There still remains to be dealt with the summons in respect of the alleged contravention of art. 13, sub-art. 2 of S.I. No. 218 of 1988 and contrary to art. 32, sub-art. 1 of the said regulations, namely the alleged possession of a prohibited substance, to wit, 2 X 100 ml. bottles of a clear liquid substance which consisted of or contained oestradiol benzoate and nortesterone decanoate to which art. 13 of S.I. No. 218 of 1988 applies.
The penalty for such offence is set forth in art. 32, sub-art. 6 of the regulations of 1988 viz. liability on summary conviction to a fine not exceeding £1,000 or, at the discretion of the court, to imprisonment not exceeding one year, or to both such fine and such imprisonment.
It was submitted on behalf of the applicant in the High Court and in this Court that the regulations of 1988 and 1990 were invalid under the law of the European Economic Community in that they failed to implement the relevant E.E.C. Directives.
The learned trial judge rejected this submission and the applicant has appealed against such rejection.
Having held that the applicant is entitled to an order prohibiting the fourth respondent from hearing or determining the prosecution brought by the first respondent against the applicant under the regulations contained in S.I. No. 171 of 1990, I do not consider it necessary to deal in detail with the applicant’s submissions with regard to the said regulations.
However, as there is still remaining a complaint that the applicant had in his possession a prohibited substance, to wit 2 X 100 ml. bottles of a clear liquid substance which consisted of or contained oestradiol benzoate and nortesterone decanoate to which art. 13 of the Regulations of 1988 applied in contravention of art. 13, sub-arts. 1 and 2. of the said regulations, the applicant’s submissions in regard thereto require to be dealt with.
The basis of the applicant’s appeal in regard to the regulations (S.I. No. 218 of 1988) is that the said regulations were made by the Minister for Agriculture and Food in exercise of the powers conferred on him by s. 3 of the European Communities Act, 1972, for the purpose of giving effect to Council Directive 81/602/EEC of the 31st July, 1982, Council Directive 81/851/EEC of the 28th September, 1981, (insofar as it relates to substances with oestrogenic, androgenic, gestagenic or thyrostatic action), Council Directive 85/358/EEC of the 16th July, 1985, Council Directive 86/469/EEC of the 16th September, 1986, Council Directive 88/146/EEC of the 7th March, 1988, and Council Directive 88/299/EEC of the 17th May, 1988, and that S.I. No. 171 of 1990 was made by the said Minister for the purpose of giving further effect to Council Directive 81/851/EEC of the 28th September, 1981, and Council Directive 86/469/EEC of the 16th September, 1986.
Article 1, sub-art. 2 of the Regulations of 1990 provides that:
“these Regulations and the European Communities (Control of Oestrogenic, Androgenic, Gestagenic and Thyrostatic Substances) Regulations, 1986 (S.I. No. 218 of 1988), may be cited together as the European Communities (Control of Veterinary Medicinal Products and their Residues) Regulations, 1988 and 1990.”
It is submitted on behalf of the applicant that:
(1) the regulations of 1988 and 1990 must be read together;
(2) the said regulations do not give effect to the entire of the Directives and that the Minister has failed to properly implement the clear, precise and mandatory provisions of the Directives;
(3) in particular, the Minister failed to properly implement the provisions of art. 5, sub-art. 3 of Council Directive 85/358/EEC in which it is provided:
“All positive findings must, if contested, be confirmed by an official laboratory duly approved for the purpose by the competent authorities using the reference methods established by virtue of Article 4(1) (b) of Directive 64/433/EEC”
and art. 8 of Council Directive 86/469/EEC which provides that:
“all positive findings must, if challenged, be confirmed by a laboratory officially approved for that purpose by the competent authorities using the reference methods established pursuant to Article 4 (1) (b) of Directive 64/433/EEC”;”
(4) by reason of the failure of the Minister for Agriculture and Food to properly implement the provisions of the Directives in their entirety, the regulations made by the Minister were ultra vires and of no effect.
It was not submitted on behalf of the applicant and no case was argued that any of the provisions of the regulations of 1988 and 1990 were contrary to the terms of the relevant directives.
In the words used by Denham J. in the course of her judgment in Meagher v. The Minister for Agriculture and Food [1994] 1 I.R. 329, when dealing with these regulations at p. 367 of the report:
“There are no policies and principles enunciated in the regulations that are not within the directives. There are no policies and principles in the regulations additional to the directive.”
What was submitted on behalf of the applicant was that the failure by the Minister to give effect to all of the terms of the directives in the said regulations rendered the entire of the regulations made by him invalid and of no effect.
A considerable portion of counsel for the applicant’s submissions related to the alleged failure by the Minister to implement the Directives by providing in the regulations for laboratories approved by the competent authority for the analysis of hormone residues, official laboratories for the purpose of confirming positive findings, if contested or challenged, approved laboratories for examination for residues of official samples taken from animals, their excrement and body fluids and from tissues and fresh meat and a laboratory, officially approved, for the purpose of confirming all positive findings if challenged.
On behalf of the Minister for Agriculture and Food it was conceded in the High Court that such laboratories were not provided for in the said regulations but it was submitted that the Directives in that regard had been complied with by administrative action. Evidence of such compliance was adduced before the High Court.
On this issue the learned trial judge stated:
“It is urged on behalf of the applicant that there are in fact no approved laboratories and so the Directive has not been implemented and it was also argued that there are no periodic comparative tests of split sampling by approved laboratories and so the Directive has not been implemented. Because this matter had not been specifically raised I gave an opportunity to the respondents to deal with it, as it had been raised in Counsel’s submissions and I felt should be dealt with by the Court. An affidavit had been filed by Miss Mortars which I think clearly establishes that there has been compliance with the Directive. The Directive is a very detailed one. It provides for the furnishing of plans by Member States and the authorities designated in Member States. The plans which were submitted and approved by the Commission in this case in fact make reference to the laboratories that are approved for the purposes of this Directive. Furthermore, our National Reference Laboratories were established under the Directive to which I have been referred and no case has been made that there were no National Reference Laboratories.
What the Minister has done in this case is to treat the National Reference Laboratory as an “approved laboratory” and this was made known to the Commission and approved of by the Commission. I am quite satisfied, firstly, that there are approved laboratories within the meaning of the Directive and, secondly, that the way in which art. 8, sub-art. 1 (b) has been treated by the authorities here has complied with the article of the Directive. As proof of this, it is clear that the steps taken by the authorities here have been approved of by the Commission. I am quite satisfied therefore that there has been an implementation of the Council Directive to which I have referred.
It is true, as pointed out on behalf of the applicant, that the establishment of an approved laboratory was not done by ministerial order or statutory instrument, but I do not think the Directive requires this to be done. It can be done by an administrative measure and the administrative measure was the approval of certain specified laboratories in the national plan to which I have referred. I, therefore, am satisfied there has been no breach of Community law by non-implementation of the Directive to which I have referred.”
Counsel for the applicant submitted that the learned trial judge erred in law in holding that the Directives could be complied with by administrative action, and submitted that it was mandatory that it be done by regulations and that the steps taken by the Minister did not comply with the terms of the Directives.
So far as the applicant is concerned, these submissions only relate to the offences contrary to the provisions of the regulations of 1990 and as I have held him for the reasons set forth in this judgment to be entitled to an order of prohibition in respect of these offences, it is not necessary for me to decide the particular issues raised by these submissions.
If it had been necessary for me to decide these issues I would have had no difficulty in deciding, for the reasons given by the learned trial judge, that there had been compliance with the requirements of the Directives.
What I have to decide is whether the failure of the Minister to include in the regulations made by him all the matters referred to in the Directives rendered the regulations made by him invalid though there was no provision in the said regulations which was contrary to the said Directives.
The power to make the regulations which provides the basis for the outstanding complaint against the applicant, viz. art. 13, of the regulations of 1988, is clearly within the powers of the Minister pursuant to the provisions of s. 3 of the Act of 1972 and the contrary has not been argued on behalf of the applicant.
No authority has been opened before this Court in support of the submission that where regulations are made for the purpose of giving effect to EEC Directives, those made must be regarded as invalid if the regulations do not include every requirement of the relevant directives.
I cannot accept this submission.
The Minister for Agriculture and Food made this regulation for the purpose of giving effect to the Directives recited therein and it must be accepted as valid if it does not contain material exceeding the policies and principles of the Directive, and to the extent of its compliance with the said Directives.
Article 13 of the Regulations of 1988 is a valid regulation made for the purpose of giving effect to the relevant Directives.

Consequently, I would dismiss the appeal on this ground, and refuse the order of prohibition sought in respect of this summons alleging an offence contrary to art. 31, sub-arts. 1 and 2 of the regulations contained in S.I. No. 218 of 1988.

O’Flaherty J.
I agree.

Blayney J.
I agree with the judgment of the Chief Justice except in one respect. With some hesitation I find myself unable to concur in his decision to refuse to sever the part of art. 11, sub-art. 1 of S.I. No. 171 of 1990, being the European Communities (Control of Veterinary Medicinal Products and their Residues) Regulations, 1990, which was held to be unconstitutional.
Article 11, sub-art. 1 provides as follows:
“A person who contravenes a provision of these regulations or a condition of a licence under these regulations shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding two years or to both.”
It was held by the learned President of the High Court that the part of the regulation which provides for imprisonment for a term not exceeding two years, or for both the fine not exceeding £1,000 and imprisonment, is unconstitutional, and there has been no appeal against that finding. The question that arises is whether it can be severed from the rest of the regulation so that the regulation would then read:
“A person who contravenes a provision of these regulations or a condition of a licence under these regulations shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000.”
In my opinion the unconstitutional part can be severed, leaving this part of the regulation to stand.
The nature of the doctrine of severability is well settled. What is in issue is its applicability on the particular facts of this case. The doctrine was set out by FitzGerald C.J. in his judgment in Maher v. The Attorney General [1973] I.R. 140 at p. 147 in a passage which has already been cited by the Chief Justice but which it is necessary to cite again:
held to be unconstitutional, and that provision is independent of and severable from the rest, only the offending provision will be declared invalid. The question is one of interpretation of the legislative intent. Article 15, s. 4, sub-s. 2, of the Constitution lays down that every law enacted by the Oireachtas which is in any respect repugnant to the Constitution or to any provision thereof shall, but to the extent only of such repugnancy, be invalid; therefore there is a presumption that a statute or a statutory provision is not intended to be constitutionally operative only as an entirety. This presumption, however, may be rebutted if it can be shown that, after a part has been held unconstitutional, the remainder may be held to stand independently and legally operable as representing the will of the legislature. But if what remains is so inextricably bound up with the part held invalid that the remainder cannot survive independently, or if the remainder would not represent the legislative intent, the remaining part will not be severed and given constitutional validity.”
What has been done is to interpret the intent of the legislature. And if, after the unconstitutional part of a provision has been severed, what remains does not represent the intent of the legislature, then it cannot stand but must fall with the unconstitutional part. Also, if it cannot survive independently, it cannot be retained, but it seems to me that this would not prevent the regulation here being retained as quite clearly it can survive independently.
In the present case it is clear that the intention of the legislature was that any contravention of a provision of the regulations should be an offence and that the sanction for the offence should be a fine not exceeding £1,000, or imprisonment for a period not exceeding two years or both. When one takes away the unconstitutional part of the sanction, one is left with a fine not exceeding £1,000. Can it be said that this does not represent the intention of the legislature? It seems to me that it cannot. It is true that it does not represent the full intention of the legislature but it does represent part of the intention. It cannot be said that it was not the intention of the legislature to have a sanction of a fine not exceeding £1,000 because it was also their intention to have in addition a sanction of a term of imprisonment not exceeding two years together with the further alternative of both these sanctions. And what remains after the unconstitutional part has been severed is certainly not inconsistent with the intention of the legislature which was to impose some sanctions for the offence. And to consider the matter from another angle, I think there is no doubt that it was never the intention of the legislature that the offence of contravening a provision of the regulations should have no sanction provided for it.
For these reasons I would agree with the learned President of the High Court that the unconstitutional part of the regulation can be severed and I would dismiss the entire appeal against the order of the High Court.

Denham J.
The facts in this case have been stated comprehensively by the Chief Justice. There are two constitutional matters to be determined.
On the first matter I agree with the Chief Justice. The learned trial judge was correct in law in determining that art. 32, sub-art. 6 in S.I. No. 218 of 1988 was not amended by art. 3, sub-art. 3 in S.I. No. 171 of 1990. The said purported amendment by art. 3, sub-art. 3 was a nullity.
The second constitutional matter concerns the doctrine of severance and art. 11, sub-art. 1 in S.I. No. 171 of 1990 which states:
“A person who contravenes a provision of these regulations or a condition of a licence under these regulations shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding two years or to both.”
The invalidity in issue in this case arises because of the words
“or to imprisonment for a term not exceeding two years or to both.”
There is no doubt as to the invalidity of these words. The issue is as to whether they can be severed. The learned trial judge held:
“The invalidity attaches and arises from the last words of the paragraph which I have quoted. If these words are severed from the rest of the paragraph then the paragraph is valid and the question for determination is whether or not the Court is permitted to sever the words which are impugned.”
After analysing the relevant authorities, the learned trial judge applied the doctrine of severance stating:
“The paragraph is only invalid in as far as it offends the Constitution. The offence of the Constitution is in the provision of ‘a term of imprisonment not exceeding two years in respect of an offence which can be tried summarily’. If those words are deleted from the paragraph for the same reasons, this means that the rest of the words can stand. I do not think that this is in any way a usurpation of legislative power by the courts. I think that the analogy to what was done by the Supreme Court in Desmond v. Glackin (No. 2) [1993] 3 I.R. 67 is a close one and the effect of it is that the Minister’s intention to impose a fine as a penalty and a term of imprisonment of two years as a penalty and/or a term of imprisonment of two years and a fine of up to a thousand pounds cannot be given effect to because of the Constitution invalidity to which I have referred. But this does not mean that the Court is exercising legislative powers. It is merely, in my view, doing as the Supreme Court did in Desmond v. Glackin (No. 2) ,namely excising from the impugned provision the words which offended the Constitution.”
The law
The doctrine of severance is based on the concept that the unconstitutional portion of legislation (or a regulation as in this case) should be excised by the court, and this should be done without usurpation by the judiciary of the domain of another branch of government: Maher v. The Attorney General [1973] I.R. 140. FitzGerald C.J. at p. 147 said:
“The submission means that it is within the jurisdiction of the Court to sever or separate the word ‘conclusive’ so as to give the paragraph, with that word removed, constitutional validity. The application of the doctrine of severability or separability in the judicial review of legislation has the effect that if a particular provision is held to be unconstitutional, and that provision is independent and of severable from the rest, only the offending provision will be declared invalid. The question is one of interpretation of the legislative intent. Article 15, s. 4, sub-s. 2, of the Constitution lays down that every law enacted by the Oireachtas which is in any respect repugnant to the Constitution or to any provision thereof shall, but to the extent only of such repugnancy, be invalid; therefore there is a presumption that a statute or a statutory provision is not intended to be constitutionally operative only as an entirety. This presumption, however, may be rebutted if it can be shown that, after a part has been held unconstitutional, the remainder may be held to stand independently and legally operable as representing the will of the legislature. But if what remains is so inextricably bound up with the part held invalid that the remainder cannot survive independently, or if the remainder would not represent the legislative intent, the remaining part will not be severed

[1996]
1 I.R. Mallon v. The Minister for Agriculture, Food and Forestry
Denham J. 540
S.C.
and given constitutional validity. It is essentially a matter of interpreting the intention of the legislature in the light of the relevant constitutional provisions, and it must be borne in mind in all cases that Article 15, s. 2, sub-s. 1, of the Constitution provides that ‘the sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.’ If, therefore, the Court were to sever part of a statutory provision as unconstitutional and seek to give validity to what is left so as to produce an effect at variance with legislative policy, the Court would be invading a domain exclusive to the legislature and thus exceeding the Court’s competency. In other words, it would be seeking to correct one form of unconstitutionality by engaging in another. The usurpation by the judiciary of an exclusively legislative function is no less unconstitutional than the usurpation by the legislature of an exclusively judicial function. The right to choose and formulate legislative policy is vested exclusively by the Constitution in the national parliament.”
The two year penalty in art. 11, sub-art. 1 is unconstitutional and thus it is necessary to determine whether the whole paragraph falls or whether portion of the paragraph alone would be invalid. Did the learned trial judge err in law by applying the doctrine of severance to the statutory instrument as he did?
Precedent establishes that the Court must look to the objective behind the section in issue. In O’Brien v. Keogh [1972] I.R. 144, the Supreme Court held that it was not possible to save by deletion a part of the impugned sections of the Statute of Limitations, 1957, s. 49, sub-section 2 (a) (ii). Ó Dálaigh C.J. delivering the judgment of the Court stated, inter alia, at p. 157:
“It is not possible to save by deletion some part of the impugned paragraph. The provision has no purpose without the words that establish the date of the running of the statute. It must therefore for its constitutional frailty fall in its entirety.”
In Desmond v. Glackin (No. 2) [1993] 3 I.R. 67, the Supreme Court analysed two sections of the Companies Act, 1990 and found two separate legislative objectives – one constitutional and one unconstitutional. The Court excised the unconstitutional and let stand the subsection which was constitutional. Finlay C.J. stated at p. 119 thereof:
“The Court is satisfied that the proper interpretation of these two subsections leads to a conclusion that the legislature intended not only the provision for punishment which is held to be inconsistent with the
Constitution, but also, as a separate discretionary jurisdiction in the court, the powers contained in s. 10, sub-section 6. If, in addition to the words deleted from s. 10, sub-s. 5 by the order of the High Court, there is added a consequential deletion of the words contained in s. 10, sub-s. 6: ‘Without prejudice to its power under subsection (5), the court may, after a hearing under that subsection’, then there remains in the combined provisions of the two sub-sections one of the two original intentions of the legislature, and such a severance in the view of the Court would be permissible, having regard to the applicable principles which have been set out.”
In the regulations of 1990 it is clear that the objective was that there be an offence with penalties. The offence and penalties were stated in art. 11, sub-art. 1 as:
“A person who contravenes a provision of these regulations or a condition of a licence under these regulations shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding two years or to both.”
It is clear that it was intended to create a single offence and alternative penalties of:
(i) a fine not exceeding £1,000, or
(ii) to imprisonment for a term not exceeding two years, or
(iii) to both.
I am satisfied that the learned trial judge was correct to apply the doctrine of severance as he did. The purpose of the statutory instrument was to create an offence which could be penalised. The intent and objective was to create alternative penalties. In purporting to create one of the alternative penalties and the combined penalty, the Minister acted unconstitutionally. He had no power to do that. However, the said purported alternative penalties (of a two year sentence or a fine and said sentence) are independent and severable from the rest of the section. The valid penalty can stand independently and legally operable as representing the will of the Minister. The penalty of £1,000 is not so inextricably bound up with the proposed alternatives that it cannot survive independently. It is possible to save by deletion part of the impugned regulation.
There is a clear objective in art. 11, sub-art. 1 that there be an offence, and that there be three alternative penalties. That is the purpose of the instrument. The intent that each of the three expressed penalties stand on their own is emphasised by the use of the word “or” twice in the sentence. There is no doubt but that the suggested maximum fine of £1,000 is constitutional. It is equally clear that the maximum sentence of two years is unconstitutional. By the entirety of the section the Minister intended (a) to create an offence, and (b) that it could be penalised. The court was given a choice of penalties. The Minister had no power to create an unconstitutional penalty. However, it is clear that the portion which is constitutional is an alternative and may stand on its own. The fact that another alternative penalty is unconstitutional is not so inextricably bound up with the valid penalty as to require the excision of the valid penalty clause also. If the valid penalty is left it is in keeping with the fundamental objective to create an offence which may be penalised. By so doing, I am satisfied that the doctrine of severance is being used as it should, that is, with such minimal interference with the statutory instrument as is constitutional.
As regards the eight summons, the alleged possession of a prohibited substance, there has been no breach of law. The fact that the regulations do not implement the entire Directive is not fatal in the circumstances and does not render them ultra vires.
I would dismiss the entire appeal.

Barron J.
I agree with the judgment of the Chief Justice that art. 11, sub-art. 1 of the European Communities (Control of Veterinary Medicinal Products and their Residues) Regulations, 1990, cannot be saved in the manner provided by the judgment of the learned trial judge.
I take this view for two reasons. First, a penalty of one year’s imprisonment would not have infringed the provisions of Article 38 of the Constitution. To sever the provision in the manner provided for in the judgment of the learned trial judge which has the effect of excluding entirely the penalty of imprisonment, would be to exclude more than the portion of the penalty which infringes that Article. Secondly, it is the clear intention of the Minister that the penalties under both regulations should be the same.
In the present case, my reservations would have been met by substituting one year for two years where it appears. However, no submission to this effect was made and I would reserve to another case in which the submission may be made to consider whether or not such a submission has validity

 

McKinley v Minister for Defence

[1992] 2 IR 333 Johnson J.
15th November 1989

 

Finlay C.J.
27th July 1992

This is an appeal by the defendants against the order of the High Court made on the 15th November, 1989, determining as a preliminary issue that the plaintiffs statement of claim disclosed a cause of action.
In her statement of claim the plaintiff alleged that she was a married woman whose husband was at all material times a serving member of the defence forces.
She further alleged that on the 17th February, 1981, by reason of the negligence and breach of duly of the defendants in and about the care, control, possession and handling of explosive substances, her husband was seriously injured in an explosion.
She pleaded that her husband’s injuries included severe damage to his scrotum, thereby rendering him sterile and impotent, and then, at para. 4, she alleged as follows:
“By virtue of the aforesaid injuries to Seamus McKinley, the plaintiff has suffered (and continues to suffer) serious personal anguish, shock, anxiety, distress and trauma and loss of and impairment of her consortium and servitium.”
Upon delivery of that statement of claim the Chief State Solicitor, on behalf of the defendants, by letter sought further particulars, and, at paras. 11, 12 and 13, required the following particulars:
“11. It is alleged that the plaintiff has suffered a total loss of theconsortium of the said Seamus McKinley. If the answer to the foregoing question is in the affirmative please give full details of the period or periods during which it is alleged that there has been a total loss of the aforesaid consortium. Please give full and detailed particulars of the nature and extent of the alleged impairment of the plaintiff’s consortium with Seamus McKinley.
12. Furnish full and detailed explanation of the basis upon which it is alleged there has been loss of servitium.
13. Furnish full and detailed particulars of all damages alleged to have been sustained by the plaintiff.”
In reply the solicitors for the plaintiff having set out in great detail the injuries sustained by the plaintiff’s husband in reply to certain earlier particulars answered particulars 11, 12 and 13 in the following form:
“11. See the generality of the replies and paragraphs 9 and 10 (m). The plaintiff has suffered (and continues to suffer) a total loss of consortium by virtue of her husband’s said scrotal injuries and she has been (and continues to be) deprived of normal sexual relations since the said accident.
The plaintiff was also deprived of her husband’s society and company for some months while he was receiving hospital and surgical treatment. In addition the plaintiff was at the loss of all the amenities of family and marriage for the aforesaid period and continues to suffer an impairment of the comfort and companionship ordinarily associated with the marriage relationship by virtue of the injuries occasioned her husband which tend to make him depressed and irritable. In this regard he is almost housebound and unable to work and has been obliged to abandon his career in the army. The said inability to have children has also caused the plaintiff great distress and has placed a particular strain on the said marriage. The symptoms and disabilities afflicting the plaintiff’s husband are permanent.
12. The plaintiff has suffered and continues to suffer from the inability and incapacity of her husband to perform all those services (and especially domestic) that he formerly performed on her behalf. Thus the plaintiff lacked her husband’s assistance in the context of her children household chores and the care and maintainence of their home. In particular the plaintiff has been obliged to learn to drive (since formerly her husband did all the driving) and her entire existence has suffered a drastic change by virtue of the necessity to take up employment to support herself and her family. In the premises, the continuity stability and quality of the plaintiff’s relationship with her husband and family has been and continues to be impaired.
13. See the generality of the replies at paragraphs 11 and 12 aforesaid in addition to the other relevant matters as referred to in the generality of the replies.
In addition, the plaintiff has suffered the following damages:
Telephone; travel to various hospitals in Letterkenny and Dublin; overnight stays in Dublin, and baby-sitters in excess of £2,000.”
It is clear from this notice for particulars and from the replies thereto that although in the statement of claim the plaintiff, in addition to claiming that she suffered and continues to suffer from loss of and impairment of her consortium and servitium, claimed also that she suffered and continues to suffer from serious personal anguish, shock, anxiety, distress and trauma, she does not, in the reply to the notice for particulars, and in particular, in reply to paragraph 13 of it, repeat any allegation concerning the anguish, shock and trauma.
This fact is reflected in the judgment in the High Court of Johnson J. who, at the commencement, slated:
“The issues are simple. The action arises out of loss of consortiumand as to whether a wife has a right to claim loss of consortium.”
No issue appears to have arisen in the High Court as to whether the wife had any right to claim damages for nervous shock, anguish or distress arising out of the accident to and injuries sustained by her husband.
No submission was made in that regard to this Court on the appeal either.
Considerations, therefore, of the principles laid down in the House of Lords in McLoughlin v. O Brian [1983] 1 A.C. 520 which were dealt with by this Court in The State (Keegan) v. Stardust Victims Compensation Tribunal [1986] I.R. 642, do not arise on this appeal, and this judgment does not have any bearing upon them.
In so far as the headings of damage claimed by the plaintiff included damages for travelling and other expenses involved by her in relation to her husband’s illness, no issue arose on the appeal concerning that item of claim either.
The issues on the appeal
Certain matters were agreed as matters of law by counsel for each of the parties, and they are:
1. That the common law right to claim damages for loss ofconsortium and servitium which existed and was identified at the time of the enactment of the Constitution in 1937 was a right confined to a husband claiming for such loss arising from injury to his wife, and that no corresponding right in the
common law existed in a wife to claim in respect of injuries to her husband.
2. Such a right was inconsistent with the guarantee of equality contained in Article 40, s. 1 of the Constitution, and in that form, therefore, could not have been carried forward and be of full force and effect pursuant to Article 50 of the Constitution.
3. The issue as to the constitutional validity of a claim for loss ofconsortium and servitium was not raised or decided by the former Supreme Court in Spaight v. Dundon [1961] I.R. 201 and has not previously been considered by this Court.
Having regard to the submissions made on behalf of the plaintiff and the defendants on the hearing of this appeal, the issues which did emanate as being the determining issues to be decided are as follows:
(1) Was the common law right to claim damages for loss of consortiumand servitium, which was in existence at the time of the enactment of the Constitution, one which can be viewed as constituted by two component and severable parts, that is to say, a right on the part of a spouse to claim damages for loss of consortium and servitium and an additional characteristic that it was confined to a husband and did not apply to a wife?
(2) If it was so constituted and severable, is the effect of the application of Article 50 of the Constitution to that common law right to be that there is excluded simply the confinement of it to a husband and that it becomes otherwise a right carried forward into our law and exercisable by either spouse?
(3) Whether, even if the common law right to claim damages for loss of consortium and servitium cannot be severed in this manner, being a common law right capable of development, are there grounds on which the Court should in its discretion develop it by making it applicable not only to a husband but to a wife also?
Since the agreement of two parties could not constitute, by that fact alone, the establishment of a principle of constitutional law, I should make it clear that I have no doubt that, quite apart from that agreement, the common law right to claim for loss of consortium and servitium which was identified in the decision of the former Supreme Court in Spaight v. Dundon [1961] I.R. 201 as being confined to a husband and not available to a wife, offends against the guarantee of equality contained in Article 40, s. 1 of the Constitution and, therefore, in that form, could not have been carried forward and be in force as part of the laws of the State pursuant to Article 50 of the Constitution.
In the course of his judgment in Spaight v. Dundon [1961] I.R. 201, Kingsmill Moore J., at p. 214, having quoted extensively from the decision of the House of Lords in Best v. Samuel Fox & Co. Ltd. [1952] A.C. 716, stated as follows:
“I agree with the eminent judges who considered the action for loss of consortium to be anomalous and founded on a mediaeval view that the husband had a proprietary or, at least, a quasi-proprietary right in his wife, analogous to his right to the servitium of his servant. Human relationships are so varied that an injury to one person nearly always involves injury of some kind or another to other people but, except where loss of consortium is produced, the common law treats such injury as too remote to found an action for damages.”
The judgment of Kingsmill Moore J. was, in effect, the judgment of the majority of the Court in Spaight v. Dundon [1961] I.R. 201, and Maguire C.J., who disagreed with the other members of the Court on the issue which arose as to whether damages were recoverable only for total loss of consortium or could be recovered for partial loss of consortium,in the course of his judgment accepts the same anomaly and confinement of the right, in the following passage at page 206:
“It is to my mind not proper to take into consideration, as some of the judges in Best v. Samuel Fox & Co. Ltd. [1952] A.C. 716 did, that the right to damages for loss of consortium is based upon a conception of the relationship of husband and wife which in modern times may be regarded as an anomaly. The alteration in the position of a wife vis-a-vis her husband by various legislative enactments may be a good reason for changing the law and abolishing the right of the husband to damages for loss of consortium. While the right exists, it seems to me illogical to deny a husband a right to damages for its impairment.”
I am satisfied that having regard to this identification of what the common law right to damages for loss of consortium and servitiumconsisted of, and the principles upon which it was based at the time of the enactment of the Constitution in 1937, it is not possible to view it as containing two constituents which are severable, namely, as is urged by the respondent on this appeal, first, a right to damages for loss of or impairment of consortium and servitium, and secondly, a restriction of that to the husband. The whole basis of the right to damages and its origin makes it inevitable and a constituent part of it that it must be confined to the husband. It is by reason of the particular quasi-proprietary right of the husband to the services of the wife that the right to claim damages for loss of them has been recognised in the common law. For this reason, I cannot accept the contention that the right can logically be viewed, as defined and identified by the common law at the time of the enactment of the Constitution, as one in two severable portions, part of which, namely, the right to damages for loss of consortium, could be carried forward and the other part of which – its confinement to a husband and its non-application to a wife – could not.
There remains, therefore, on the issues raised before this Court on this appeal, the further question as to whether, this being a common law right, it is appropriate for the Court in order to avoid what might be described as its extinguishment by virtue of the provisions of Article 50 of the Constitution, to develop it so as to make it applicable to the wife as well as to the husband, therefore removing from it the constitutional frailty of its unequal application.
It is very clear that the consequences of serious injuries to either spouse, such as the injuries which are outlined in the particulars, if they are established in this case, must necessarily inflict on the person whose spouse, be it husband or wife, has been as seriously injured in the manner which is indicated in these particulars, very considerable trauma, distress, anxiety, and a great disturbance of the convenience and happiness of life. I would accept that considerations of the provisions of the Constitution protecting, in particular, the institution of the family and the marriage upon which it is founded, could be attractively urged in support of an extension of the right to damages to cases where one of two spouses has been injured in the manner alleged to have occurred in this case.
I cannot accept, however, that such a development of the law, not taking place on the basis of any extension of foreseeability, or the persons within the ambit of those entitled to claim damages for injury to another, such as has been considered in McLoughlin v. O’brian [1983] 1 A.C. 520, but rather, as is urged in this case, as a “development” of the common law right of the husband to damages for loss of or impairment of consortium and servitium of his wife, could possibly be correct. To establish such a “development” would logically be to remove from the doctrine of the right to damages or loss of consortium and servitium the entire reasoning upon which it was originally based, and upon which it was based at the time of the enactment of the Constitution in 1937.

Article 50, s. 1 of the Constitution reads as follows:
“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.”
That provision cannot, in my view, be construed as imposing, as counsel on behalf of the defendants urged on the hearing of this appeal, upon the Court an obligation as far as possible to amend or alter common law rights existing and in force in Saorstát Éireann at the dale of the passing of the Constitution so as to make them comply with the Constitution.
I am, therefore, satisfied that neither of the two possible grounds upon which it was urged that this right of damages for loss of consortiumand servitium could be available to a wife as part of the common law has been established and that this appeal should be allowed and an order should, in my view, be made striking out so much of the plaintiff’s claim as consists of a claim for loss of consortium and servitium, there being other items of the claim which would appear to survive.
In reaching that conclusion, I have had regard to the submissions which were made and considerations which arise by reason of the provisions of s. 35, sub-s. 2 (b) of the Civil Liability Act, 1961. That sub-section provides, so far as is material, as follows:
“2. For the purposes of sub-section (1) of section 34, the contributory negligence –
(b) (where the action if brought for the loss of consortium or services of a wife or for the loss of the services of a child or servant) of a wife, child or servant shall neither bar recovery nor reduce the damages awarded; but the provisions of section 21 shall apply in favour of the defendant against the said nominal plaintiff, wife, child or servant, as the case may be.”
It was urged that this reference to the right of action of a husband for loss of consortium and servitium, firstly, raised a rebuttable presumption that it was a valid right and consistent with the Constitution, and, secondly, it was urged that for the Attorney General in these proceedings to contend that this sub-section was inconsistent with the constitutional position would be an impermissible anomaly.
I am not satisfied that the terms of this section constitute a setting out or establishment of the right of action, but merely contain a purported recognition of its survival in the law of the State. As such, it does not constitute anything more than an apparent legislative acceptance of a situation which, for the reasons I have set out, I am satisfied is constitutionally incorrect.
Furthermore, I am also satisfied that no matter how anomalous it may be, in the particular circumstances of this case, that the Attorney General as a defendant should be contending for a constitutional frailty in a section of a statute passed by the Oireachtas, that fact could not possibly permit this Court to declare a position with regard to constitutional law which was otherwise than in accordance with its view of the applicable provisions of the Constitution.
If the view of the majority of the members of this Court differs from the view which I have just expressed, and if the decision of the High Court is upheld to the effect that the wife has a right to claim for loss ofconsortium and servitium, then, I feel I should express a view on the other issue which, in the amended notice of appeal, was brought before this Court, namely, as to whether such a right could be claimed for total loss of consortium only or for impairment of it as well. I agree with the view expressed by other members of the Court to the effect that, having regard to the decision in Spaight v. Dundon [1961] I.R. 201 and to the decision, in particular, in O Haran v. Divine (1964) 100 I.L.T.R. 53, that it is not appropriate for this Court, on this preliminary issue, to reach any decision concerning the extent of impairment or loss which attracts damages in such a right. That would fall to be decided by the High Court, if the matter is being tried before it, on the facts as proved before that court.

Hederman J.
The factual background to this case is fully set out in the judgment of the Chief Justice and need not be repeated.
The plaintiff claims, in addition to other matters, that due to injuries wrongfully caused to her husband she has suffered loss and impairment of consortium and servitium. Consortium means living together as husband and wife with all the incidents that flow from that relationship.
In a passage in Bromley on Family Law (5th ed.) at p. 111, which I would adopt, it is stated:
“Consortium connotes as far as possible the sharing of a common home and a common domestic life. It is difficult to go beyond this and to define with more precision the duties which the spouses owe to each other. This is after all a matter of common knowledge rather than a subject for legal analysis.”
I do not accept that Article 50 of the Constitution is of relevance to this appeal. Both sides accept that the entitlement to a claim for loss ofconsortium was confined to the husband and denied to the wife. This, however, was the position at common law prior to the enactment of the Constitution. Since then all that can be said with certainty is that such a claim has never, until now, been asserted by any wife in any court in this jurisdiction.
I do not accept that the word “laws” in Article 50 restricts common law procedures or remedies only to those current in 1937. I regard as surreal the argument of the Attorney General in this case that our appropriate answer should be that because of the equality provisions of the Constitution a husband who loses the consortium of his wife because of injury to her by a wrongful act should be denied his claim for this loss. This argument is made in the context of a Constitution which gives special protection to marriage, to the family and to children and prohibits divorce. The logical extension of this argument of the Attorney General would be to believe that the framers of the Constitution had more advanced ideas about the procreation of children than was scientifically possible in 1937.
I do not accept that every possible heading of damages arising for a tortious act has to be spelled out in specific legislation. As medical science, physical and psychological, extends our knowledge and understanding of the human condition so the headings of damage may increase and extend. Indeed, s. 5, sub-s. 2 (b) of the Civil Liability Act, 1961, appears to be a case in which the right of a husband to claim for loss of consortium as existed at common law was carried over expressly by legislation. The fact that wives were not specifically mentioned does not to me create any insurmountable difficulty.
Even in common law countries without written constitutions such as ours, as the tempo of social change in the past fifty years has accelerated beyond imagination, so the challenge to the law has become more powerful and more urgent. It has been said that it is almost certain that the common law would no longer exist if judges had not from time to time accepted the challenge and boldly laid down new principles to meet new social problems.
It is perhaps even more important in countries such as Ireland with a written Constitution that we face the problem of the role of the courts in the evolution of law. This problem was dealt with well by Justice Cardozo of the United States Supreme Court when he wrote “The Nature of the Judicial Process”. He stated:
“Logic and history and custom and utility and the accepted standards of right conduct are the forces which singly or in combination shape the progress of the law. Which of these forces shall dominate in any case must depend largely upon the comparative importance of value of the social interest that will be thereby promoted or impaired.”
Justice Cardozo having dealt with the symmetrical development of the law, that development based on history and custom and precedent, goes on to say:
“But symmetrical development may be bought at too high a price. uniformity ceases to be good when it becomes uniformity of oppression. The social interest served by symmetry or certainty must be balanced against the social interest served by equity and fairness or other elements of social welfare.”
Finally, asking how the judge was to know when one interest outweighs another, he concluded by saying:
“I can only answer that he must get his knowledge just as the legislator gets it from experience and study and reflection; in brief, from life itself. Here indeed is the point of contact between the legislator’s work and his.”
That philosophy, which I would follow, is echoed in the view to be expressed by McCarthy J. in the judgment which he is about to deliver that the correct solution is to declare the equality between citizens of this State by positive rather than by negative acts. In this regard I have in mind the words of Chief Justice Marshall of the United States of America almost two hundred years ago in Marbury v. Madison (1803) 5 U.S. 1 when he stated:
“It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule . . .”
I believe that the essential background to be borne in mind in the determination of this case is to be found in the first sentence of Article 40. In that portion of the Constitution entitled “Fundamental Rights”and sub-titled “Personal Rights” it is stated:
“All citizens shall, as human persons, be held equal before the law.”
The provisions of Articles 41 and 42 lay special emphasis on the uniqueness of the family, the special care to be given to the institution of marriage and the particular care to be given to women whether mothers or not. Article 41, s. 1 states:
“1 The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.
2 The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.”
Article 41, s. 2, states:
“1 In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.
2 The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.”
Article 41, s. 3, states:
“1 The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.
2 No law shall be enacted providing for the grant of a dissolution of marriage.”
While Article 40 of the Constitution ensures that all persons shall be equal before the law, Article 41 underlines the particular status which is attached to marriage. That status attaches to the woman by virtue of Article 41, s. 2, perhaps even to a greater extent than it attaches to the man. This case, therefore is not based on a question of a discrimination in favour of men pre-dating the Constitution but rather, in my view, it is based on the status which the Constitution gave to marriage and to married women in particular. It seems clear to me that Articles 40 and 41 should be construed in accordance with the statement contained in the Preamble to the Constitution that the People gave to themselves the Constitution in order that amongst other objectives “the dignity and freedom of the individual might be assured.” That dignity and freedom to which the plaintiff is entitled is assured only by the dismissal of this appeal and the affirmation of the order of Johnson J.
The evolution of the common remedies by judicial interpretation is a well established procedure but can, of course, be affected by Acts of the Oireachtas, as for instance the common law right arising from criminal conversation. In the instant case the legislators have not intervened to assert the wife’s entitlement but have, as I have already demonstrated, recognised the existence of the common law remedy.

McCarthy J.
In my opinion, where a common law rule offends against the principle of equality in a marriage relationship, the solution is to identify and declare the equality by positive rather than negative action. Whatever the origin of a particular common law right, however artificial its base as viewed from a modern standpoint, if, as here, such a right is so firmly established as part of the common law, equality amongst equals requires a court declaration to that effect, rather than what would be judicial legislation by denying such a claim to the husband.
The claim
The plaintiff alleges that she has suffered and continues to suffer a total loss of consortium. She says, in answer to a request for particulars, that,
“[she] has been (and continues to be) deprived of normal sexual relations since the said accident.
The plaintiff was also deprived of her husband’s society and company for some months while he was receiving hospital and surgical treatment. In addition the plaintiff was at the loss of all the amenities of family and marriage for the aforesaid period and continues to suffer an impairment of the comfort and companionship ordinarily associated with the marriage relationship by virtue of the injuries occasioned her husband which tend to make him depressed and irritable. In this regard he is almost housebound and unable to work and has been obliged to abandon his career in the Army. The said inability to have further children has also caused the plaintiff great distress and has placed a particular strain on the said marriage. The symptoms and disabilities afflicting the plaintiff’s husband are permanent.”
The defence
Whilst the defence denies negligence, it was accepted that the only issue, other than damages itself, is that raised by paragraph 1: “The plaintiff’s statement of claim discloses no cause of action.”
MacKenzie J. directed the trial of an issue as to whether or not the statement of claim disclosed any cause of action and Johnson J. held that it did, whether or not the plaintiff’s claim was based on total loss ofconsortium or impairment.
The appeal
The amended notice of appeal alleges that the trial judge erred in law:
“1. In holding that the common law right of action of a husband for loss of consortium and servitium continued to be in full force and effect notwithstanding Article 50 of the Constitution.
2. Furthermore, in holding that the said common law right of action was extended by operation of the Constitution, and in the absence of legislation, applied to a wife in the same manner as to a husband.
3. In holding that the plaintiff has a right of action, whether her claim was based on total loss of consortium or impairment.
4. In holding as a matter of law that if an action for loss ofconsortium exists, that the same extends to partial loss ofconsortium or impairment.”
The common law
In Spaight v. Dundon [1961] I.R. 201, the former Supreme Court, (Maguire C.J. dissenting), held that a husband, whose wife has been injured by the negligence of a third party, cannot successfully maintain an action for impairment, as opposed to total loss, of her consortiumarising from the injury.
Maguire C.J. began his judgment by saying:
“It is settled law that a husband can bring an action per quod consortium amisit in respect of any tort by a third person resulting in injury to his wife and thereby depriving him of that consortium.”
It could only be abolished by statute.
In O Haran v. Devine (1964) 100 I.L.T.R. 53, this Court upheld an award to a husband in a case where “it would be unreal to say that the husband had not been effectively deprived of consortium.” No reference to the Constitution is to be found in either report. Presumably there have been many other cases in which damages have been awarded, by consent or otherwise, to husbands for similar loss. This is the first case where the wife has claimed for loss of consortium, total and partial, because of injury to her husband. It is agreed that it would be quite anomalous and an invidious discrimination if the wife is to be denied such a right, when the husband has it. But, so the argument goes, the husband’s right at common law was not carried over by Article 50 of the Constitution.
The argument
The husband’s right was a quasi-proprietary right; at common law, the wife had no such right – she had no proprietary interest in her husband. Therefore, the wife having no such right, the husband’s right failed the constitutional test under Article 40. Thus equality is restored.
The answer
It is unequal, but the solution is not to deny the husband’s right but, pursuant to Article 40, to enforce the wife’s right – to make the common law of Ireland conform with constitutional requirements. Further, s. 5, sub-s. 2 (b) of the Civil Liability Act, 1961, expressly refers to the husband’s right of action, to which counsel for the Attorney General responds that the relevant sub-paragraph is invalid having regard to the provisions of the Constitution.
The case law
1. The State (Director of Public Prosecutions) v. Walsh [1981] I.R. 412 was a case of contempt of a Special Criminal Court in which the full Supreme Court ruled that the High Court had jurisdiction to try the respondent summarily without a jury. When the contempt proceedings
were heard, “the strange submission [was] put forward on behalf of the appellant Conneely that, because of coercion on her husband’s part, it [was] he, and not she, who could be found guilty of contempt,” (see page 448). On the facts, Henchy J., with whom Kenny and Griffin JJ. agreed, held against this appellant, and went on to say:
“That is how I would dispose of this point if the presumption of coercion of a wife by the physical presence of her husband were applicable. But, in my judgment, that doctrine is no longer extant in this State. The idea that, where a wife performs a criminal act, there should be a prima facie presumption that the mere physical presence of her husband when she did it overbore her will, stultified her volitional powers, and drove her into criminal conduct which she would have avoided but for his presence, presupposes a disparity in status and capacity between husband and wife which runs counter to the normal relations between a married couple in modern times . . . In particular, I would hold that the presumption relied on is inconsistent with the Constitution and was therefore, by virtue of Article 50, not given validity in the legal system after the Constitution came into force. A legal rule that presumes, even on a prima facie and rebuttable basis, that a wife has been coerced by the physical presence of her husband into committing an act prohibited by the criminal law, particularly when a similar presumption does not operate in favour of a husband for acts committed in the presence of his wife, is repugnant to the concept of equality before the law guaranteed by the first sentence of Article 40, s. 1, and could not, under the second sentence of that Article, be justified as a discrimination based on any difference of capacity or of social function as between husband and wife. Therefore, the presumption contended for must be rejected as being a form of unconstitutional discrimination.”
The note of the argument presented to the Supreme Court (at p. 445) does not indicate that this question was argued at all; indeed, it might have been thought appropriate to invite argument from the Attorney General. The Stale (Director of Public Prosecutions) v. Walsh [1981] I.R. 412 appears to be a case in which an important decision on constitutional law was reached without argument and as a moot. At first sight, I do not find it necessarily inconsistent with the constitutional guarantee of equality, to say that in an ordinary marriage relationship it might not be presumed, subject to rebuttal, that a wife acts under the influence of her husband. I find Walsh’s case less than compelling.

2. C.M. v. T.M. (No. 2) [1990] 2 I.R. 52. The doctrine of dependent domicile of the wife had been swept away by principles of equality before the law and equal rights in marriage which were enshrined in the Constitution, in particular Article 40, ss. 1 and 3 and Article 41. This is a far cry from the rebuttable presumption instanced in Walsh’s case.
Conclusion
Neither case bears upon the direct issue here. In The State (Director of Public Prosecutions) v. Walsh [1981] I.R. 412, the presumption in favour of the wife of acting under her husband’s coercion, rebuttable at law, was inconsistent with equality in marital status; in C.M. v. T.M. (No. 2) [1990] 2 I.R. 52 the infringement of the wife’s right to choose her own domicile coming from the common law rule of dependent domicile was inconsistent with Article 40. The present is not a case corresponding to either of these; the question is whether or not the fact that the common law rule did not, apparently, envisage an action for loss of consortiumby the wife should result in a denial to the husband of such a right because of an alleged inconsistency with Article 40. That denial, incidentally, would be made in a case not involving a husband and, a fortiori,one in which the husband was not heard. The simpler solution is to make the common law conform to the Constitution by declaring that the established right of the husband still exists and to deny such a right to the wife would be an infringement of Article 40. In ruling in that fashion, the Court would not be legislating in matters of social policy; it would be removing discrimination. If it were to declare that the husband’s right (upheld in Spaight v. Dundon [1961] I.R. 201 and in O’Haran v. Divine (1964) 100 I.L.T.R. 53) did not survive the enactment in 1937, the Court would be legislating in a matter of social policy. The origin of the right of action is of historical interest only; the right was so well established that, as quoted by Maguire C.J. in Spaight v. Dundon [1961] I.R. 201, it could only be removed by legislation.
No precedent has been cited for the Attorney General to challenge the validity of any part of a post-1937 statute; he is a necessary party to any challenge. I would not entertain the argument challenging the sub-section of the Civil Liability Act.
Total or partial loss.
In my view, the right of action for total loss is clear; like Maguire C.J. I can find no logic in holding against partial loss as giving a right to claim. Difficulty of assessment of damages has never been an answer to a claim of right. It seems to me however quite invidious that any effort should be made to deal with that aspect of the case without first finding the facts.
The implications.
Does it extend to claims by children or in respect of children by parents? I think not. The principle of equality between husband and wife is peculiar to them. Parents and children are not equal and do not have equal rights. Parents are legally bound to support their infant children; no child has any legal obligation to support a parent. Reference to possible extensions of liability – to employees and so on – is not relevant. Here we are dealing with the case of husband and wife. The husband’s right of action in respect of the loss of the society and comfort of his wife is recognised; so also should that of the wife in respect of her husband.

O’Flaherty J.
Should a wife be entitled to bring an action per quod consortium amisit in respect of a wrong done to her husband by a third party and which thereby deprives her of that consortium? Consortium may be taken to mean companionship, the rendering of services, sexual intercourse and affectionate relations between spouses. That the present state of the law recognises that a husband has such a cause of action in respect of such a wrong cannot be doubted. In Spaight v. Dundon [1961] I.R.201 it was regarded as settled law that such a cause of action existed. The Civil Liability Act, 1961, in s. 35, sub-s. 2 (b) recognises the existence of such a cause of action.
In this case counsel for the State invites the Court to hold that this cause of action which developed at common law was inconsistent with the Constitution and, consequently, was not carried over in our law after the enactment of the Constitution. This submission was founded on the point that historically only the husband could bring such an action, not the wife; that this is clearly discriminatory and, therefore, violates the equality provisions of Article 40 of the Constitution.
I do not think it necessary to delve too deeply into the dark past of this particular remedy which not only involved a clear discrimination against wives but consigned them to an inferior status. It is well chronicled. It will be sufficient for me to quote from Lord Wensleydale’s speech in Lynch v. Knight (1861) 9 H.L.C. 577, which was an appeal from the Court of Exchequer Chamber in Ireland, where he said at p. 598:
“The relation of the husband to the wife is in most respects entirely dissimilar from that of the master to the servant, yet in one respect it has a similar character. The assistance of the wife in the conduct of the household of the husband and in the education of his children resembles the service of a hired domestic, tutor or governess; is of material value, capable of being estimated in money . . . It is to the protection of such material interests that the law chiefly attends.”
While this was never the unanimous judicial view on the matter, it had strong support and so when the matter came to be considered by the Supreme Court in Spaight v. Dundon [1961] I.R. 201 Kingsmill Moore J., in the majority judgment, said at p. 214:
“I agree with the eminent judges who considered the action for loss of consortium to be anomalous and founded on a medieval view that the husband had a proprietary – or at least a quasi-proprietary right – in his wife, analogous to his right to the servitium of his servant.”
How, so the submission goes, can such a cause of action of such discredited and anomalous ancestry and one so clearly discriminatory of wives be said to be part of our living law?
Of course, one answer is that by extending the remedy to wives then both the anomaly and the discrimination are removed at one fell swoop. The alternative course is for us to declare that the cause of action went out of existence in 1937 on the enactment of the Constitution. I would regard that as an extreme step. It would involve a finding that the Supreme Court was in error in entertaining the cause of action at all inSpaight v. Dundon [1961] I.R. 201 and O’Haran v. Divine (1964) 100 I.L.T.R. 53. It would also run counter to the consideration given to the matter by the legislature when the Civil Liability Act, 1961, was enacted. Extreme or not, if that is where our duty lies we must not hesitate so to declare. But would such a decision be justified?
The House of Lords was faced with the same question as to whether a wife could bring an action based on loss of consortium except that it, of course, did not have to resolve the question in the context of a written constitution. In Best v. Samuel Fox & Co. Ltd. [1952] A.C. 716 where the history of this cause of action was gone into in great detail, as it had been by the Court of Appeal, Lord Porter, at p. 728, concluded as follows:
“Even if it be conceded that the right of husband and wife ought to be equalised I agree with the Lord Chief Justice that today a husband’s right of action for loss of his wife’s consortium is an anomaly and see no good reason for extending it. If the change is to be made I should prefer to abolish the husband’s right rather than to grant the like remedy to the wife.”
Counsel for the State in effect asks us to take the same course.
For my part I would decline the invitation. If the history of the law is not only logic, but experience, that experience goes to show that many matters that started out as anomalies in the course of time and by a process of refinement were brought into alignment so as to ensure that a just solution was evolved. The history of the development of the equitable jurisdiction of the courts is replete with such examples. So, too, is the history of the development of the law relating to employers and employees. The law originally regarded the master as having a property in his servant. A random glance through any law digest of the last thirty years or so will show how far “ownership” has come around to providing extensively instead for the duties that an employer owes to his employees.
It should be emphasised, too, that the action for loss of consortium,like most actions, ultimately involves a claim for damages for a wrong. I think it appropriate to point out by reference to another, domestic, example how the law has developed by extending a head of damages. I appreciate the comparison is not precise because the example I am about to afford deals with a head of damages rather than a cause of action giving rise to an entitlement to damages but, in the result achieved, the distinction is not important. Formerly it was thought that a husband, wife, parent or child should not be entitled to be compensated for looking after a relative who had been injured. It was thought that these services should be rendered gratuitously. That meant that the wrongdoer was saved the obligation to make due compensation. Indeed, there is an echo of this in Kingsmill Moore J.’s judgment in Spaight v. Dundon [1961] I.R. 201, when he said, at the date of that decision, that a husband constantly claimed and recovered for medical and domestic expenses to which he had been put owing to an injury to his wife. He went on to say:
“As to the first, I think his claim really lies in his legal obligation to provide proper maintenance and comfort, including medical and surgical aid, for his wife, and the fact that the wrong does cause that obligation to be incurred is regarded as giving him a right to recover, while the latter [i.e. the domestic expenses] is truly a remnant, and perhaps the last, of his right to sue for the loss of servitium . . .”
Nowadays, I do not think any judge would require a claim to be thus framed. He would regard a wife or a husband or child or parent to be entitled to be justly compensated in respect of their endeavours in regard to the injured party but as part of the injured party’s claim for damages.
The changes brought about in various common law countries since the decisions in Best v. Samuel Fox & Co. Ltd. [1952] A.C. 716 and in Spaight v. Dundon [1961] I.R. 201 are described in Fleming, The Law of Torts (7th ed.) at page 624. In the United States of America it is noteworthy that in certain decisions there the extension of this remedy to the wife has been based as a matter of equal protection under constitutional provisions; see Prosser and Keeton, Handbook of the Law of Torts (5th ed.), pages 931-932.
I have come to the conclusion that the right of action should extend to the wife and I base my judgment not only on the equality provisions of the Constitution but also on the fact that the Constitution gives marriage a special recognition and lays down that no law shall be enacted providing for the dissolution of marriages. That highlights the need to afford equal rights to both spouses.
As regards the matter decided in Spaight v. Dundon [1961] I.R. 201, that the loss of consortium must be total, Mr. Clarke, for the plaintiff, submitted to us that, on the pleadings, he would be able to bring his case within the confines described by Spaight v. Dundon . Therefore, I reserve by position on whether Spaight v. Dundon requires reconsideration in the light of developments since it was decided. The question of what should be regarded as loss of consortium giving rise to an entitlement to damages may require fresh definition. But since the matter of impairment was not debated before us and, obviously, could not have been debated before us since it had not been canvassed before the learned High Court Judge, I need say no more than that it seems to be difficult to justify a distinction based on total loss of consortium for a limited period and a total loss of a significant element of consortium which is permanent.
When the matter proceeds in the High Court the judge will be venturing on largely unchartered territory, and he is entitled, I believe, to some guidance on the question of the quantum of damages in respect of this cause of action. Kingsmill Moore J. in Spaight v. Dundon [1961] I.R. 201 was of the opinion that such damages should not be “too generous” (at page 215). That precept, of course, applies to any award of damages. However, I think a benchmark might be sought and found in the level of damages that are awarded for mental distress under the Civil Liability Acts in the case of the death of a spouse. It would seem clear, in principle, that damages for loss of consortium should be related to those recoverable for the death of a spouse.
I would dismiss the appeal.

Egan J.
1. The plaintiff in this case was at all material times the wife of Seamus McKinley who she alleged was seriously injured in an explosion at a quarry on the 17th February, 1981, and that his injuries were caused by the negligence of the first, second and third defendants. By order of the High Court made on the 11th May, 1987, it was directed that an issue should be tried as to whether or not the statement of claim disclosed any cause of action.
2. The fourth and fifth defendants were added as parties and on the hearing of the issue the learned judge of the High Court, in his judgment delivered on the 15th November, 1989, directed that the plaintiff should be allowed to continue her case whether the claim was based on total loss of consortium or impairment thereof.
The defendants now appeal from the said order and judgment on the grounds that the learned High Court Judge erred in law:
1. In holding that the common law right of action of a husband for loss of consortium and servitium continued to be in full force and effect notwithstanding Article 50 of the Constitution.
2. Furthermore, in holding that the said common law right of action was extended by operation of the Constitution and, in the absence of legislation, applied to a wife in the same manner as to a husband.
3. In holding that the plaintiff has a right of action whether her claim is based on total loss of consortium or impairment.
4. In holding as a matter of law that if an action for loss ofconsortium exists, that the same extends to partial loss ofconsortium or impairment.
The position at common law was that a husband had a right to damages for the loss of consortium or servitium in respect of his wife. Such a right was confined to the husband alone – Best v. Samuel Fox & Co. Ltd. [1952] A.C. 716.
The husband’s right was recognised by the former Supreme Court in Spaight v. Dundon [1961] I.R. 201 but the loss had to be total deprivation even though the duration might be limited. The matter was again considered in O’Haran v. Divine (1964) 100 I.L.T.R. 53 with a similar result.
It is somewhat strange to note that no reference was made to the Constitution in either case. Article 50 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.”
I have commented on what I consider to be a strange omission or oversight in the two cases I have mentioned because it seems clear that there is a strong argument to suggest that the common law in relation to claims for loss of consortium was and is inconsistent with the Constitution and, in particular, Article 40, s. 1, thereof which provides:
“All citizens shall, as human persons, be held equal before the law. This shall not be held to mean, that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function”.
The common law recognised a right of action by a husband for the loss of consortium or servitium of his wife but the wife had no similar or any claim in respect of the loss of consortium or servitium of her husband. The plaintiff alleges that this is inconsistent with the constitutional guarantee of equality and it is conceded that to accord such a right to a husband only is clearly discriminatory and repugnant to the Constitution.
This recognition of discrimination does not, however, deter the plaintiff. It is argued on her behalf that the fact of a husband having a right of action in respect of loss of consortium and servitium is not per serepugnant to the Constitution but that the repugnancy lies in the failure to recognise a similar right for a wife.
This argument suggests that the courts should create a right of action (which was non-existent at common law) for the purpose of protecting
the constitutionality of another law and saving it from being declared invalid. I am far from saying that this approach would be impermissible in every type of case but I am satisfied that it would be wrong in the case of actions in respect of loss of consortium.
In Spaight v. Dundon [1961] I.R. 201 Kingsmill Moore J. gives many instances of the manner in which persons (other than spouses) can be gravely affected as a result of personal injuries sustained by another person. None of these persons had a right of action. The law made one exception, i.e., the right of a husband to claim damages for loss ofconsortium and servitium suffered by him as a result of injury to his wife. Many eminent judges took the view that such a right of action was anomalous. It was based on the historical concept of a wife being obliged to render services and in a sense to be regarded as her husband’s property. Such an idea would be regarded as an anathema in the present day. Admittedly the right was firmly entrenched in the common law but it is high time it was eradicated.
Finally it was argued that s. 35, sub-s. 2 of the Civil Liability Act, 1961, revives any destruction of the right caused by the Constitution. It provides, so far as is material:
“For the purpose of sub-section (1) of section 34 the contributory negligence –
(b) (where the action is brought for the loss of consortium or services of a wife or for the loss of services of a child or servant) of a wife, child or servant, shall neither bar recovery nor reduce the damages awarded . . .”
This sub-section, at best, only recognises the existence of a right of action in a husband for loss of consortium or services without recognising any similar right in favour of a wife. Accordingly the sub-section itself has a constitutional infirmity.
I am of opinion, therefore, that the plaintiff has no cause of action and that the appeal should be allowed.

P.J. Carroll v Minister for Health

 

[2005] I.E.S.C. 26
JUDGMENT of Mr. Justice Geoghegan delivered the 3rd day of May 2005

This is an appeal from an order made by the High Court (Kelly J.) sitting as “the Commercial Court” being a branch of the High Court recently established with a view to expedition and efficiency in the management and trials of commercial cases. Three judges of the High Court have been specially assigned by the President of the High Court to deal with cases coming before the Commercial Court and Kelly J. is the senior judge in charge of that court. It is, I think, generally accepted that the Commercial Court is already proving to be a successful institution. An integral part of that success is case management. Most orders by way of case management in the Commercial Court are, to some extent, of a discretionary nature and in practice most of them would be unappealable. I would take the view that as a general rule this court should be slow to interfere with case management type orders in the Commercial Court unless there is a clear error of law involved or the managing judge has clearly not exercised his or her discretion correctly. As the institution is a new one it may well be that this is the first case that has come before this court. If so, it is particularly unfortunate that I find myself compelled to place it in what I believe to be the exceptional category of cases in which this court should set aside a management ruling of the court.

To some extent what has led to this situation is that the case is not really a commercial case in the ordinary sense in which that term is used. By order made the 18th June, 2004, Kelly J. pursuant to O. 63A, r. 4(1) of the Rules of the Superior Courts as inserted by the Rules of the Superior Courts (Commercial Proceedings) 2004 (S.I. No. 2 of 2004) entered the proceedings in the Commercial List. The court was empowered to do this only in relation to “commercial proceedings” within the meaning of r. 1 of the same order. That rule lists a number of specific categories of proceedings which in ordinary parlance would be regarded as “commercial proceedings” but at paragraph (b) it also includes a kind of “catch-all” category which reads as follows:

“(b) Proceedings in respect of any other claim or counterclaim, not being a claim or counterclaim for damages for personal injuries, which the judge of the Commercial List, having regard to the commercial and any other aspect thereof considers appropriate for entry in the Commercial List”.

It is not clear from the order whether both sides had consented to the case being dealt with in the Commercial List. One can well imagine that it might have suited both sides. It is easy to be wise after the event but given the subsequent history of the case it would seem to me to be highly doubtful that it was wise in practice, even if permissible in law, to have allowed this case enter the Commercial List. In its essence, it is not a commercial case. It is a constitutional action. I am not in anyway suggesting that every case which challenges the constitutionality of a statutory provision should be precluded from being entered into the Commercial List. Each case must depend on its own facts. But I see a difference between a case which is fundamentally a commercial case but where they may be tagged on as a last resort relief a challenge to the constitutionality of a statutory provision on the one hand and an action which from the beginning is fundamentally a constitutional action. It may be appropriate to enter the former in the Commercial List but caution should be exercised in admitting the latter. It would seem to me that this case clearly falls within the latter category.

Now that the case is for better or worse in the Commercial Court, I have come to the conclusion that if I am satisfied (as I am) that on at least one of the grounds of appeal put forward by the appellants the order of the High Court ought to be set aside, I should not express any views on other grounds raised. I have formed a definite view that the appellants are clearly entitled to call oral evidence to support the contention that the legislation is proportional. As other issues which have been raised in this appeal may well come to the fore either in future case management rulings in these proceedings or in relation to rulings which may have to be made by the trial judge, I think that it would be premature and wrong unnecessarily to express any views on them at this stage.

I therefore intend to concentrate on the arguments based on proportionality.

The order the subject matter of this appeal which was made on the 30th July, 2004 in its principal operative part included a finding that it was not open to the appellants to seek to adduce evidence at the trial of the action in respect of facts which had been admitted in the pleadings and to quote the order:

“which specifically include the nature of tobacco and its health effects the entitlement of the first defendant to propose and the legislature to enact legislation based upon its concerns regarding the health consequences of smoking the entitlement to propose and enact legislation based on the belief that some restrictions on the advertising of tobacco products may achieve a public health objective or protect children and young people the fact that the Oireachtas acted for the motives alleged at paragraph 27 of the Defence and that it was entitled to have regard to the joint committee reports to the minutes of evidence given to the joint committee and to the inclusions on the adoption of the anti-smoking strategy set out in those reports.”

The order went on to rule out also evidence relating to the effect of advertising if an amended Reply was delivered admitting those effects. The appellants in cogent written and oral submissions point out that the litigation relates to alleged unconstitutionality of anti-smoking legislation and that notwithstanding the factual admissions referred to by Kelly J. the proportionality of the impugned measures is heavily in issue. They then go on to argue, quite rightly in my view, that they must be allowed adduce oral evidence relating to that issue. This seems to me to be obvious and does not require detailed analysis of authorities whether Irish, Canadian, EU or deriving from anywhere else. It is not in dispute that the respondents intend to adduce oral evidence at the hearing of this trial. At this stage it is not known what the nature of that evidence is. It may well emerge before the trial in that under O. 63A, r. 22 there is a prescribed procedure, unless the judge otherwise orders, providing for serving of written statements outlining the essential elements of evidence to be adduced. It would seem inconceivable that part of the evidence adduced on behalf of the respondents will not be relevant to proportionality. At the very least it would be premature at this stage to rule out any particular evidence on behalf of the appellants on this matter.

Counsel on behalf of the appellants place considerable emphasis on what they call “the classic exposition” of the proportionality doctrine to be found in the judgment of Costello J. in Heaney v. Ireland [1994] 3 I.R. 593:

“The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a proportionality test. They must:
(a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations;

(b) impair the right as little as possible;

(c) be such that their effects on rights are proportional to the objective.”

The appellants argue that it is not sufficient for the purposes of a proportionality analysis for the appellants to show that the Oireachtas might have a rational basis for its belief as to the adverse public health effects of tobacco. They point out that at most those concessions allow that the legislation was based on rational considerations and possibly had a legitimate aim but nothing more. In paragraph 4.5 of their written submissions counsel for the appellants say the following:

“In these proceedings it may accordingly be necessary for the appellants to establish that wide ranging restrictions on the distribution and advertising of tobacco products are objectively justifiable and are of ‘sufficient importance to warrant overriding a constitutionally protected right’. This exercise cannot be done in the abstract, still less on the basis of the limited concessions made by the respondents. In sum, therefore, the appellants are entitled to call evidence on these issues to enable the court to arrive at a view as to the proportionality of the impugned measures and this right cannot be defeated by the plaintiffs making certain concessions for the purposes of the litigation.”

I find myself in agreement with that submission. While the respondents resist the appeal on different fronts, I would interpret their submissions as making one fundamental argument in particular, namely, that it is not in fact legitimate for the State ever to call evidence on the proportionality issue. The respondents correctly point out that the Oireachtas is entitled to legislate on the basis of its belief and general experience. It is quite true also, as they point, out that members of the Oireachtas cannot be cross-examined as to the thought process which results in the legislation. In their written submissions, counsel for the respondents sum up their argument in a colourful sentence

“It is an unconstitutional exercise in ventriloquism to proffer the views of unidentified experts, however, eminent in lieu of, or in addition to the words of the legislation and its legislative history.”

In my view, this argument is fallacious. Although courts in this jurisdiction interpret statutes by reference to the words used, they do not do so in a vacuum. There is always a contextual background of which the courts are perfectly well aware. There can be no question of course in a constitutional challenge, of the State adducing evidence as to what were the intentions as such of the Oireachtas or particular members thereof. But that is quite different from suggesting that there cannot be evidence of objective external facts existing at the time that the legislation was enacted. Indeed, this would seem to fit in with the first of the three tests set out by Costello J. in relation to proportionality.

It has never been the case that the State was precluded from calling oral evidence in a constitutional action. Indeed, on occasions, the State has been criticised in legal circles for not doing so. As counsel for the appellants point out, Ryan v. The Attorney General [1965] IR 294 was an early example of the proportionality test raising its head in a constitutional action and in which the State was entitled to lead evidence as to the effects of fluoridation. I realise that the respondents are conceding that evidence may sometimes be given as to effects. But I do not see any great difference in principle. Either challenges to the constitutionality of statutory provisions are to be heard in all cases without the defendant calling any evidence or the defendants are entitled to call whatever evidence they may reasonably consider to be relevant. I accept that if a fact is admitted, good case management may preclude evidence being adduced to prove it. But the proportionality of the impugned legislation in this case is not admitted.

I do not think that there is any significance in the dearth of authority in Ireland on the right of the State to call evidence on the proportionality issue. It is simply that the problem has not arisen and, of course, as has been pointed out there is the judgment of Finlay Geoghegan J. in the High Court in Enright v. Ireland [2003] 2 I.R. 321. The respondents purported to distinguish that case. Even if they are right in their point of distinction it would make no difference to the view I take that clearly such evidence is admissible. I do not think it necessary to rely on the Canadian case law for this purpose. It is fair to say that the Canadian cases cited were partly determined on foot of the Canadian Charter of Rights. What I do consider relevant, however, is to refer to the arguments put forward by the respondents based on what happens in Article 26 References. In their written submissions counsel for the respondents say the following:

“Perhaps the most striking feature of the lists set out above is the number of Article 26 cases in which proportionality is considered, necessarily in the abstract, and without evidence. Indeed, if evidence were admissible to assess the proportionality of any provision then, it must be anticipated that such evidence could scarcely be capable of being marshalled, adduced, challenged and tested, within the sixty day period allowed for an Article 26 Reference. It cannot be the case that the Constitution envisages that a Bill could fail an Article 26 Reference because of the absence of proportionality evidence, which evidence would have been available if the Bill was enacted and subsequently challenged.”

It is common knowledge in legal circles that Article 26 References present special problems and in that sense are sui iuris. It has never been considered altogether satisfactory that the Supreme Court has to decide the constitutionality or otherwise of a Bill in the abstract and within the tight time limit of sixty days. It has never been ruled out that there might be a Reference in which it would be necessary to have evidence. The point remains undecided. One could conceive of a case where as a consequence of oral evidence the sixty day time limit could not be complied with and, indeed, one can postulate other very unusual circumstances in which the time limit might not be met. It would be quite wrong to speculate on what the legal effects of such problems would be. But the very fact that these problems can arise in relation to an Article 26 Reference renders it wholly unhelpful as a guide to determining the circumstances in which the State may be allowed adduce oral evidence in an ordinary constitutional action. Counsel for the respondents cite the following passage from In re Article 26 of the Constitution and the Private Rented Dwellings Bill 1981 [1983] I.R. 181 at 186.

“Article 26.2.1 says that the court’s decision is to be reached after hearing ‘arguments’ by or on behalf of the Attorney General and counsel assigned by the courts. The Article makes no reference to the hearing of evidence. In fact, in none of the references that have come to the courts 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 Article 26. In this, as in all 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 coming 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 social, economic, fiscal and other features that may be crucial to an understanding of the working and the consequences of the referred Bill.”

Although counsel for the respondents are relying on this passage it would seem to me to be two-edged from their point of view. It seems clear that in that passage the inclusion of the words “unlike practically all other cases coming before the court” indicates that the court is bemoaning the “absence or shortage of concrete facts”. Just because an Article 26 Reference is normally argued in the abstract is no argument for suggesting that in an ordinary constitutional action where legislation is being impugned, the State should be precluded from calling contextual evidence in aid of a proportionality issue.

I would allow the appeal and set aside the order of the High Court. This does not mean that the trial judge may not be entitled to make his or her own rulings relating to any issue that may then arise involving alleged unnecessariness on the part of the State in calling any particular evidence. But a premature ruling of that kind at this stage is not justified.