A Dormant Doctrine of Overbreadth: Abstract Review and Ius Tertii in Irish Proportionality Analysis

A DORMANT DOCTRINE OF OVERBREADTH:ABSTRACT REVIEW AND IUS TERTH IN IRISH

PROPORTIONALITY ANALYSIS

DAVID KENNY*

Irish courts have been using the proportionality test to assess the constitutionalityof statutes for more than 15 years. In that time, while it has become increasinglycentral to Irish constitutional law, we have not discussed the possibilitythat in our incorporation of proportionality we have left a crucial elementbehind. Courts have universally acknowledged that rights are not absolute. Inadjudicating restrictions on rights, courts often test the rationality of laws, andproportionality is the latest and most prolific test that involves an assessmentof rationality. In this article, I wish to examine the use of overbreadth analysis,which is one method by which rationality can be tested, in Irish constitutionaladjudication. With an overbreadth doctrine, courts would strike down a statutethat restricts rights because it is too broad - as well as applying to people orconduct legitimately targeted having regard to its objective, the statute alsoapplies to other individuals or conduct not legitimately targeted pursuantto that aim. Obviously, individuals illegitimately targeted would succeed inchallenging the statute as applied to them. Contentious issues arise, however,where an individual plaintiff is fairly targeted by the statute but the statutemay illegitimately target others. The doctrine of overbreadth, which might bedescribed as "hypothetical overbreadth", would allow the statute be challengedon its face by a legitimately targeted party, and be held invalid by reference tothe rights of a person other than the plaintiff.

Overbreadth analysis turns on the relationship of the law to its objective. Theobjective sets out the "vector" of the law - the way in which the force of thelaw is intended to be directed. This vector tells us in what direction the law isaimed - against whom, against what conduct - and also the lengths to which itis to go; it can only go as far in this direction as the objective requires. Statutesare overbroad when they irrationally depart from that vector; by acting in adirection other than one set out in the objective, or by irrationally doing morethan is necessary to achieve it.

* PhD Candidate, Trinity College Dublin. The author would like to thank Dr OranDoyle for his extensive comments on this material, and Rachael Walsh, Niamh Cleary,Oisin Tobin and Declan Bruton for their comments on an earlier draft. Any errors oromissions are his own.

A hypothetical overbreadth doctrine is something that has been adopted inother jurisdictions. For example, in the United States, any plaintiff may haveoverbroad statutes struck down because, as well as targeting unprotected speech,they could apply to speech protected by the First Amendment.' The CanadianSupreme Court has developed an overbreadth doctrine under their Charter ofFundamental Rights.' In the early days of Ireland's proportionality doctrine, somecases suggested that an equivalent doctrine might apply in this jurisdiction.

However, there is another constitutional law doctrine with which anoverbreadth doctrine conflicts. The ius tertii rule states that constitutionallitigants can only make arguments based on their own circumstances - theycannot, for the sake of constitutional argument, raise hypothetical scenarioswhere the statute might breach constitutional rights of third parties. Overbreadthanalysis, in allowing plaintiffs to make such arguments in certain circumstances,conflicts with this rule. The justifications for the ius tertii rule are well-known:that real plaintiffs and concrete circumstances are often required to adequatelyadjudicate cases, and that plaintiffs should not receive constitutional windfallsfrom the rights of third parties. The justifications for overbreadth are, like thedoctrine, less well known and should therefore be outlined.

The first justification for overbreadth analysis is that a substantiallyoverbroad law, in exceeding its vector, is not rational. If a law is irrational,that is not something that requires a directly-affected plaintiff to ascertain,nor are the effects of irrationality something that are suffered solely by theindividuals irrationally targeted. I will later argue, by investigating the elementsof the proportionality test that involve rationality analysis, that irrationality ispotentially indicative of improper motive underlying the statute, which wouldrender it suspect and unjustifiable in all cases.

The second justification is broader and more fundamental. This is theargument that unconstitutional laws should not be applied; whatever the reasonfor their unconstitutionality. Tribe describes this as a right to be judged inaccordance with a constitutionally valid rule of law.' An overbroad law is "rottenat its very root" and unable to be "trimmed of its unconstitutional branches. '4

1. Laurence Tribe, American Constitutional Law (2 nd ed, Foundation Press, 1988),at 1022.

2. Peter Hogg, Constitutional Law of Canada (5th ed, Carswell, 2007), at 47-52.3. Professor Tribe does not see overbreadth as creating a standing issue, because

he believes it is this personal right to be judged by a constitutional rule of law,rather than the free speech right of third parties, that justifies the doctrine. Tribe,note 1, at 1023-1024.

4. Ibid, at 1029. American courts are concerned that overbroad laws have a chillingeffect on protected speech, which justifies striking down a law in the absence ofan affected plaintiff. However, in applying this doctrine, courts could remove onlythat part of the law that targets the protected speech, and apply it to a case wherethe speech is unprotected. They do not do so, which indicates that overbreadth is

Dublin University Law Journal

In Canada, overbroad laws are taken to violate the principles of fundamentaljustice.' If a law's unconstitutionality can be ascertained in the absence of aparticular plaintiff, that law should be held unconstitutional regardless of theplaintiff's circumstances. To do otherwise is to turn a blind eye to a clearlyunconstitutional law. This approach, though certainly more radical, wouldvindicate constitutional rights most effectively and show our commitment tothis constitutional conception of the rule of law.

It is of great importance to determine how best to resolve this conflict, anddecide which of these two conflicting ideas is to be prioritised. The conflictbetween ius tertii and overbreadth in Ireland coincided with the development ofthe proportionality doctrine. The very first case to apply proportionality analysisin Ireland used an overbreadth test to strike down a statute. However, withoutaddressing the tension between these two ideas, or acknowledging the prioruse of overbreadth, subsequent cases prioritised the ius tertii rule and rejectedoverbreadth arguments. In this article, I wish first to argue that the Irish courtshave not properly considered the conflict between overbreadth and ius tertii.We should revisit these issues, rather than allowing the conflict to be resolvedin favour of ius tertii without proper consideration of the merits of overbreadthanalysis. I will then argue that the most desirable settlement of this issue is torelax the ius tertii rule in some cases and to reawaken the now dormant doctrineof overbreadth. I believe this would uphold the values of the Constitution and therule of law, and improve the application of proportionality analysis in Ireland,which has suffered as a consequence of the plaintiff-centric focus of ius tertii.

THE ORIGINS OF PROPORTIONALITY AND THEAPPLICATION OF OVERBREADTH ANALYSIS

Cox v Ireland,6 the case that began the development of proportionality in Ireland,relied on overbreadth analysis to strike down a statute. Here, section 34 ofthe Offences Against the State Act 1939 provided that any public employeeconvicted in the Special Criminal Court of an offence scheduled to the Actshould lose his or her job and be disqualified from employment in the publicservice for 7 years. Additionally, any pension or superannuation allowanceaccrued by the employee during their employment would be forfeit, subject tothe Minister's power to remit the punishment at his sole discretion. Mr Cox wasconvicted, in the Special Criminal Court, of possession of three firearms and aquantity of ammunition. Consequently, he lost his job in a community school,

also motivated by a belief that overbroad laws should simply not be allowed tostand.

5. Hogg, note 2, at 47-526. [1992] 2 IR 503 (SC).

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A Dormant Doctrine of Overbreadth

and was disqualified from employment in any public school. He furthermorelost his pension and PRSI benefits on foot of his conviction.

In the Supreme Court, Finlay CJ found that the law was clearly in pursuit ofa legitimate objective; the State was entitled to enact "far-reaching penalties andforfeitures"7 to deter subversive crime, which the Act was designed to target.Also, it was clearly in the State's interest to prevent individuals engaged insubversive activities "carrying out the functions of the State."8 However, thesegoals had to be pursued while protecting the constitutional rights of citizens as faras practicable, and that had not been done in this instance. The provision, whichbarred anyone convicted of a scheduled offence from engaging in any publicemployment whatsoever in the designated period, was a "major curtailment of[that person's] earning capacity."9 Section 34 applied to any individual convictedof a scheduled offence, but the offences scheduled to the Act ranged from trivialto treasonous. They included offences such as maintaining an army within theState, on the one hand, and "the possession of a single sporting gun in respectof which the annual licence has not been renewed by the owner""0 on the other.There was no distinction between these sorts of offences, and no mechanismby which a person convicted of an offence "might establish, not his innocenceof the offence charged, but the fact that his motive or intention in committingit, or the circumstances under which it was committed, bore no relation at allto any question of the maintenance of public peace and order or the authorityand stability of the State."11 Therefore,

notwithstanding the fundamental interests of the State which the sectionseeks to protect, the provisions of s. 34 of the Act of 1939 fail as faras practicable to protect the constitutional rights of the citizen and are,accordingly, impermissibly wide and indiscriminate. 2

There can be little doubt that the reason for the statute's invalidity was itsoverbreadth; it applied to more people than was necessary in order to achievethe objective of protecting the State from subversive activities by employees.The Court asked if the Act constituted a failure of the State to "continue toprotect the constitutional rights of the citizen"13 as far as practicable. In doingso, it looked at the rights of hypothetical citizens; there was no discussion inthe judgment of the Supreme Court of whether or not the plaintiff was one ofthe individuals who was inappropriately targeted.

7. [1992] 2 IR 503, at 523 (SC).8. [1992] 2 IR 503, at 523 (SC).9. [1992] 2 IR 503, at 522 (SC).10. [1992] 2 IR 503, at 523 (SC).11. [1992] 2 IR 503, at 523 (SC).12. [1992] 2 IR 503, at 524 (SC).13. [1992] 2 IR 503, at 523 (SC).

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It is not clear that Mr Cox was illegitimately targeted. First, his conviction,while not being as serious as raising a private army, was not a trivial regulatoryinfraction of the sort discussed by the Court. This was not a mere failure torenew a gun licence; he was found in unlawful possession of three firearmsand a quantity of ammunition. Secondly, it is not clear that the plaintiff'smotives for committing the offence were non-subversive, or that they bore norelation to the security of the State and the authority of the government. 14 Ifthat was the reason for the Court's decision, one would expect this to be set outin the clearest terms. The fact that the Court did not address this issue clearlyindicates that overbreadth was the basis for the decision, and that the statutewas unconstitutional for that reason alone.15 This remarkable feature of Cox wasnoted in contemporary academic commentary on the case.16

The analysis in Cox is widely accepted as being an embryonic version ofproportionality.17 One might therefore expect that subsequent cases, whichdefined more precisely the scope of proportionality, would follow Cox and adoptoverbreadth analysis as part of this test. This has not happened, and to understandwhy, one must look at the rule with which this approach conflicts.

THE Ius TERTI RULE

The overbreadth doctrine tacitly used in Cox inevitably conflicts with the iustertii rule, which states that plaintiffs, even having locus standi to bring a claim,can raise only those arguments based on prejudice to their own rights. Theseminal case on both locus standi and ius tertii is Cahill v Sutton.18 Though theSupreme Court has said that this decision "is not of such sweeping application

14. Indeed, contemporary reports suggest that Mr Cox harboured two escapees of theMaze prison who were apprehended near his home at the same time the weaponswere found. See "Teacher Jailed for Possession of Two Pistols" The Irish Times,18 February 1988.

15. The Court did not examine facts that indicated that Mr Cox might have beenimproperly targeted eg that the State's rationale for targeting teachers is significantlyless compelling than the rationale for targeting people in positions that are sensitiveor directly related to the functions of the State.

16. Richard Humphreys, [1991] 13 DULJ 118, at 126. Humphreys noted that MrCox's offence was "anything but trivial.... It was far from clear, on the SupremeCourt's reasoning, as to how s. 34 was disproportionate as applied to hiscircumstances."

17. See, inter alia, Heaney v Ireland [ 1996] 1 IR 580 at 584. Here the Supreme Courtreferred to "the proportionality test as adumbrated in Cox v Ireland." Hogan andWhyte also cite Cox as the "starting point" for the development of proportionality.Gerard Hogan and Gerry Whyte, JMKelly: The Irish Constitution ( 4 th ed, Tottel,2004), at 1271.

18. [1980] IR 269 (SC).


as is sometimes thought,"'9 Hogan and Whyte note that the ius tertii rule is "oneaspect of Cahill v Sutton which has been strictly applied. '2

Ms Cahill challenged the Statute of Limitations Act 1957 arguing that it wasunconstitutional. She wished to sue Dr Sutton, whose alleged breach of contractin the course of providing medical treatment had caused her personal injury anddisability. However, due to her delay, her action was time-barred by section 11of the Act. She challenged the constitutionality of that section, claiming that itwas unconstitutional insofar as it would operate to bar a plaintiff's action evenif they could not have been aware of the damage done to them until after thetime-bar had taken effect ie if their damage was latent. However, Ms Cahill'sdamage was patent rather than latent; she had been well aware of it before thetime period had elapsed. As Henchy J colourfully described it:

Therefore, the plaintiff is seeking to be allowed to conjure up, invoke andchampion the putative constitutional rights of a hypothetical third party, sothat the provisions of s. 11, sub-s. 2 (b), may be declared unconstitutionalon the basis of that constitutionaljus tertii-thus allowing the plaintiff tomarch through the resulting gap in the statute.21

Henchy J outlined why the locus standi and ius tertii rules are important. Therules mean that "each challenge is assessed judicially in light of the application ofthe impugned provision to the challenger's own circumstances. 22 This gives

concreteness and first-hand reality to what might otherwise be an abstractor hypothetical legal argument.... Without concrete personal circumstancespointed to a wrong suffered or threatened a case tends to lack the forceand urgency of reality.23

This meant that if a challenge fails, "it does not follow that a similar challengeraised on a different set of facts will fail. '24 Another concern was that theabsence of such rules would allow judicial review to be the "the happy huntingground of the busybody and the crank" 25 who would prefer to challenge a law'sconstitutionally than simply obey it.

Henchy J noted that such rules, though commendable and important, arenot absolute. He referred to locus standi as a "general, but not absolute, rule

19. SPUC v Coogan [1989] IR 734, at 746 (SC).20. Hogan and Whyte, note 17, at 823.21. [1980] IR 269, at 280 (SC).22. [1980] IR 269, at 282 (SC).23. [1980] IR 269, at 282-283 (SC).24. [1980] IR 269, at 283 (SC).25. [1980] IR 269, at 277 (SC)per O'Higgins CJ.

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of judicial self-restraint .... ,,26 The courts have dealt with locus standi fairlyflexibly.27 Why should this not also be the case with ius tertii?

It is important in this context to draw a clear distinction between locus standiand ius tertii. The locus standi rule determines whether or not a plaintiff canbring an action in the first place by judging their interest in the case. If a statutedoes not affect the plaintiff at all, they have no standing to take the case, asthey have no personal interest in whether that statute is unconstitutional. Thisgatekeeper rule is important to make sure that cranks and vexatious litigants donot overwhelm the courts, making them a final port of call for political oppositionto a law. But Ms Cahill was not a crank: the statute bar was preventing her fromexercising her rights and taking Dr Sutton to court. The plaintiff was affectedby the statute, as its invalidity would have ended this restriction of her rights.She had locus standi to challenge the statute.

Ms Cahill's problem was not one of locus standi, but one of ius tertii. Thisrule, in contrast to locus standi, does not affect one's ability to undertake aconstitutional challenge; it rather restricts the arguments that can be made in thecontext of that challenge to those based on the plaintiff's own circumstances.The issue was not that Ms Cahill was not prejudicially affected by the statute,but that her challenge was not taken on the basis of the prejudice to her rights(and if it was, it would certainly have failed) but on the prejudice to the rightsof another. In Oran Doyle's words, "she sought to make an argument that wasnot hers to make. ' 8

Thus, overbreadth does not raise concerns about vexatious constitutionallitigation flooding the courts, as locus standi is not affected by the doctrine. Therelaxation of ius tertii does raise other potential problems: it asks the courts toadjudicate cases without a concrete plaintiff. It might also mean that each newcase would not be adjudicated upon afresh. These concerns, raised by Henchy Jin Cahill, will have to be shown to be insubstantial in any circumstances whererelaxation of the rule is proposed.

Hogan and Whyte acknowledge that Cox may have struck a "slightlydiscordant note"29 in the otherwise strict application of the ius tertii rule. Mr Coxappeared to succeed in striking down the law on the basis of a ius tertii. Whilenoting the dissonance, Hogan and Whyte see it as being of minimal significance:"Cox, however, is possibly best viewed as an example of where the ius tertiirule was not too stringently applied, rather than presaging any major departurefrom the manner in which the rule has heretofore been applied."30 They werecertainly right in practice: this feature of Cox, far from presaging any major

26. [1980] IR 269, at 282 (SC).27. Hogan and Whyte, note 17, at 817 etseq.28. Oran Doyle, Constitutional Law: Text, Cases and Materials (Clarus Press, 2008)

at 433.29. Hogan and Whyte, note 17, at 826.30. Ibid.

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departure, has never been meaningfully discussed in the Irish courts. But werethey right in principle, or should this element of Cox have led to a change inthe way the ius tertii rule is applied?

HEANEY V IRELAND: TACIT REJECTION OF OVERBREADTH IN PROPORTIONALITY

Despite the fact that Cox was a clear endorsement of overbreadth analysis,this approach was tacitly disfavoured in the first case to fully articulate aproportionality test. In Heaney v Ireland Costello J considered argumentsthat sections 30 and 52 of the Offences Against the State Act 1939 - statingthat persons arrested on suspicion of commission of a scheduled offence mustgive an account of their movements, and making refusal to do so an offence- were overbroad in relation to the State's interest in prosecuting and preventingsubversive crime. The objective of this statute was to aid in the investigationof subversive crime. This was broadly similar to Cox. Thus, the overbreadthargument was essentially the same one made in Cox: that the range of scheduledoffences for which one might be arrested under section 30 and ordered to accountfor one's movements under section 52 was too broad for this interest, as thereis no necessary subversive intent in their commission. However, despite thestriking similarity, Costello J rejected the argument.

It is true that a suspect may be arrested under s. 30 for an ordinary non-subversive type of offence if it is a scheduled offence and has not beencommitted for any political motive. It is unnecessary, however, for meto decide whether the powers under s. 52 could be operated validly andconstitutionally in such circumstances as in this case the plaintiffs had beenarrested because of suspicion of their involvement in serious subversivecrimes and the section was operated for the purposes for which parliamentintended it to be used.32

Though he refused to consider this line of argument, Costello J, shortly beforethis, had cited Cox as being similar to proportionality for this very idea: "Coxv Ireland is an example of a case in this country in which disproportionatemeans to obtain a legitimate objective invalidated the statute. 33 Yet, he failedto see that the application of that test to this case should yield the same result.These sections of the Act apply in the same indiscriminate manner as thesection under scrutiny in Cox, and Costello J acknowledged this when he saidthat non-subversive offenders, who had no political motive, might yet fall foul

31. [1994] 3 IR 593 (HC).32. [1994] 3 IR 593, at 608 (HG).33. [1994] 3 IR 593, at 607 (H).

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of these provisions. He declined to entertain the argument because these menwere suspected of subversive crimes, and thus were part of the group that couldlegitimately be targeted. The same could probably have been said about MrCox. There is no compelling reason apparent on the face of the judgment whyoverbreadth should be considered in Cox, but not in this case.34

CASES ADOPTING OR ENDORSING COx OVERBREADTH

At this juncture, it is appropriate to look at the few judicial authorities thatsupport the overbreadth element of Cox, before turning to look at those thattacitly disfavour it and follow Heaney.

A case that followed shortly after Cox adopted a similar opaque form ofproportionality analysis, and regarded the overbreadth of the statute as itsmajor failing. In Re Article 26 and the Matrimonial Homes Bill, 199335 section4 of the referred Bill decreed the "matrimonial home," the primary residenceof a married couple, should vest in both spouses as joint tenants, regardless ofany other legal arrangement, unless the spouses already held as joint tenantsor tenants in common with equal shares. Spouses who would benefit fromthe provision could, after receiving legal advice, apply to exclude themselvesfrom the application of this section. In the case of potential injustice, a courtcould refuse to apply the section on the application of the spouse who wouldnot benefit from it.

In holding the Bill to be unconstitutional, the Supreme Court engaged insomething broadly similar to proportionality analysis. The Court had, in previouscases, found that the objective pursued here -the sharing of property in marriage-was an important facet of the common good.36 But it also noted that it was partof the Article 41 rights of the family to make a joint decision about the manner inwhich they would hold property. The law was clearly overbroad. Even decisionsjointly made by the spouses would be affected by the "universal application"37

of the law. The law did not target the specific cases where State interventionwould be justified; by default, and absent one of the listed exceptions in the Bill,it applied to all cases. In some cases, the Bill would in effect

cancel a joint decision freely made by both spouses as part of the authorityof the family and substitute therefor a wholly different decision unless thespouses can agree to a new joint decision to confirm the earlier agreement

34. The overbreadth argument was not discussed in the Supreme Court appeal inHeaney [1996] 1 IR 580 (SC).

35. [1994] 1 IR 305 (SC).36. See L v L [1992] 2 IR 77 (SC).37. [1994] 1 IR 305, at 325 (SC).

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or unless the owning spouse can succeed in obtaining a court order pursuantto section 6.38

The Court concluded "that such provisions do not constitute reasonablyproportionate intervention by the State with the rights of the family and constitutea failure by the State to protect the authority of the family."39

As this was an Article 26 reference, this example of overbreadth analysisis not a strong argument in favour of the doctrine. Since there was no plaintiff,the Supreme Court had no choice but to review the legislation in the abstract,and so this cannot be taken as an endorsement of this approach in othercircumstances. It does, however, undermine any suggestion that the courts areincapable of abstract review. 40 While the Court was able to establish that theBill was unconstitutional by hypothesising potential applications, had this casearisen as an ordinary constitutional challenge, the current approach of the Irishcourts would deny relief to a plaintiff that did not fall into the category that wasunfairly targeted, and would allow the clearly unconstitutional law to linger on.If it is possible to review laws in the abstract in the context of Article 26, surelyit is possible to do so in other contexts.

Lovett v Minister for Education41 is one of the few cases to expressly followCox on the overbreadth point, albeit obiter. The case was similar to Cox,involving forfeiture of a teacher's pension based on conviction for an offence.Paragraph 8(1) of the pension scheme established pursuant to the TeachersSuperannuation Act 1928, provided that a pensioner convicted of an offence andsentenced to twelve months in prison or any period of hard labour would forfeittheir pension. Mr Lovett was principal in a community school. After investigationof financial irregularities in the school's accounts, he pleaded guilty to threeoffences of dishonesty and was given a two year suspended sentence.

Kelly J concluded that Paragraph 8(1) was ultra vires the parent Act.However, he went on to say that even were that not the case, the provisionwould be unconstitutional under Cox. Since this element of the Scheme didnot seem to be warranted by anything in the parent Act, the objective of thesection was suspect. In this case, perhaps since it was not legislative motivationin question, but the motivation of the scheme's drafters, Kelly J took a much

38. [1994] 1 IR 305, at 326 (SC).39. [1994] 1 IR 305, at 326 (SC).40. The existence of the Article 26 procedure should not be taken as a prohibition

on abstract review in other circumstances. Henchy J rejected that view in Cahill,saying the Article "cannot be taken as inhibiting the High Court or the SupremeCourt from exercising the general jurisdiction to review legislation in the mannerthat will most effectively give force to constitutionally guaranteed rights...." [1980]IR 269, at 283 (SC).

41. [1997] 1 ILRM 89 (HC).

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more scathing view of the objective of the measure than would usually be seenfrom an Irish court:

What legitimate interest of the State is being satisfied by this provision? ...Some case might be made to support such a provision concerning servingteachers who hold a position of trust in our society but none can, in myview, be advanced concerning retired teachers. 41

Turning to its breadth, the judge noted that the measure "can apply to a verylarge number of crimes of widely varying seriousness."43 Under the schemea sentence of 11 days hard labour would cause forfeiture, but 11 monthsimprisonment would not. Moreover, the section can operate for any offence; theoffence committed does not have to be in any way connected to the individual'sformer role as a teacher.44 Given these perverse potential operations of the Act,he concluded:

In my view it fails to pass the test prescribed by the Supreme Court inCox's Case and does not, as far as practicable, protect the constitutionalrights of the applicant. A retired teacher cannot escape its effects evenin the circumstances where he could show the offence he was convictedof was a minor one, had nothing to do with his former occupation, andattracted only a sentence of a few days imprisonment with hard labour ora suspended sentence of more than 12 months.45

Kelly J ultimately decided the case on the ultra vires ground but there seems littledoubt that he would have been prepared to hold the provision unconstitutionalin the absence of the vires argument.

As with Cox, it is clear that overbreadth was used here because the judgedid not examine the severity of Mr Lovett's case, or the connection to hisformer occupation; whether he was one of those people unjustly targeted bythe statute seemed not to matter. Insofar as it is legitimate to deprive teachersof their pension for criminal misconduct, Mr Lovett was close to an idealtarget.46 Thus, the constitutional infirmity was based largely on the rights of ahypothetical plaintiff to whom the measure might apply. If the measure would

42. [1997] 1 ILRM 89, at 101 (HC).43. [1997] 1 ILRM 89, at 101 (HC).44. [1997] 1 ILRM 89, at 101 (HC).45. [1997] 1 ILRM 89, at 101 (HC).46. Mr Lovett's dishonesty related to the financial management of the school of which

he was principal, and so was directly related to his career as a teacher. He wasconvicted on three counts, and sentenced not to eleven days of hard labour, but totwo years imprisonment, though the sentence was suspended.

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have been unconstitutional as applied to Mr Lovett, analysis of his particularcircumstances would be required.

This analysis seems to be a proper application of Cox, yet clearly cutsagainst the general practice of the Irish courts by allowing another plaintiff toplead unconstitutionality based on a ius tertii. It is not clear whether Kelly Jconsidered this dissonance.

CASES TACITLY REJECTHNG COX OVERBREADTH

There are several cases that, like Heaney, tacitly reject pleas of overbreadthand ignore this part of Cox. A good example of this is The People (DPP) vQuilligan (No 3)47 which again involved arrest for scheduled offences under theOffences Against the State Act, and thus allowed for an overbreadth argumentsimilar to both Cox and Heaney. This case again involved section 30 of the Act,allowing for arrest on suspicion of a scheduled offence. Sub-section 3 allowedfor someone so arrested to be detained for 24 hours, and for a further 24 hourswith the authorisation of a high-ranking Garda. Sub-section 5 empowers theGardai to demand the arrested person proffer their name and address (failure todo so was an offence) and to search, fingerprint and photograph them.

Mr Quilligan was arrested under section 30 on suspicion of the scheduledoffence of causing malicious damage. He was not charged with this crime, butrather with two non-scheduled offences: burglary and murder. His convictionfor murder was eventually set aside by the Supreme Court; this case concerneda separate prosecution for burglary. Inter alia, he claimed that section 30 wasunconstitutional because it violated his Article 40.1 right to equality insofar asit allowed him to be detained for 24 or 48 hours, as opposed to those arrestedon any other basis, who were entitled to be charged as soon as practicable orreleased. Responding to this, Finlay CJ merely said the following:

The mere fact that a law discriminates as between one group or categoryof people and another does not, of itself, render it constitutionally invalid.What is necessary to establish such invalidity is the existence of aninvidious discrimination, and the court is satisfied that that has not beenestablished with regard to section 30 in this case. This ground of challengemust, therefore, fail.48

Finlay CJ rested his determination on the formal equality within the twogroups ie that everyone arrested under section 30 is treated alike, and everyonearrested pursuant to another power is treated alike. He did not examine whether

47. [1993] 2 IR 305 (SC).48. [1993] 2 IR 305, at 321 (SC).

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the distinction between the two groups is fairly drawn, he merely assertedthat it is not invidious. Hogan and Whyte note that this reasoning is "lessthan convincing," especially given that the Supreme Court itself in Cox hadrecognised "the potentially arbitrary classifications involved in the scheduledoffences. '49 Arbitrariness and overbreadth arguments identical to Cox shouldhave succeeded here.

Cox was not cited or considered in this case, and it is possible that theanalogy did not occur to the Court. It is also possible that the Court mayhave been concerned about the implications of holding this sort of legislativecategorisation to be invalid on equality grounds. They may have thought thatsuch invalidation might leave many classifications open to challenge. Had theappellants framed this argument as a substantially overbroad restriction of libertybased on the objectives of the Act, it is difficult to see why the claim should nothave succeeded, following the precedent of Cox.

Murphy v GMPB PC Ltd[0 is another case where the dissonance betweenCox and Cahill was apparent. This was a challenge to the Proceeds of CrimeAct 1996, which allowed the seizure of any property that was the proceeds ofcrime unless a court was satisfied that to allow such a seizure would carry withit a serious risk of injustice. The respondents, whose property was being targetedunder the Act, advanced two distinct but related arguments for the statute beingoverbroad. The first was that the definition of proceeds of crime was too broadin including property obtained before the Act was passed, and property thatwas only indirectly the proceeds of crime. However, O'Higgins J held that thisbroad definition was essential for the efficacy of the scheme:

It is, however, difficult to envisage how an Act with the object of theProceeds of Crime Act ... could in any way be effective without a broaddefinition.... [T]he legislation has, of necessity, to be widely framed. Iam not satisfied that the legislation is unconstitutional by reason of beingoverbroad."

The respondents made a second argument of overbreadth. O'Higgins J continued:"[b]y reason of the unjustifiably overbroad definition of property it is arguedthat there is a failure to protect the rights of a bonafide purchaser for value."52

O'Higgins J rejected this argument on the basis that it relied on a ius tertii:

The Respondents in this case claim that the £300,000.00, the subject matterof this application, was not the proceeds of crime and have attempted todemonstrate to the Court how they came by the money legally. In those

49. Hogan and Whyte, note 17, at 1604.50. 4 June 1999 (HG).51. 4 June 1999, at 89-90 (HG).52. 4 June 1999, at 90 (HC).

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circumstances, it is not open to the Respondents to argue the case of abonafide purchaser for value without notice. They are precluded from sodoing by the principle laid down in Cahill v Sutton...."53

This suggests that an argument based on ius tertii could never succeed, and theCourt again failed to consider the fact that Cox succeeded in striking down alaw on this basis.54

In the Supreme Court appeal of this judgment,55 and other challengesto the Proceeds of Crime Act, the Supreme Court did not fully address theoverbreadth issue, despite the fact that it was raised. 6 Keane CJ seemed toaddress overbreadth as if it were only an element of vagueness,57 but in the HighCourt, the vagueness issue was addressed as a separate, discrete argument.5

Looking at this case law, it is clear that if there has been a battle betweenoverbreadth and ius tertii, then ius tertii has prevailed. However, moreproblematically, this battle seems to have never been waged at all. The IrishCourts have never queried whether the considerations underlying the ius tertiirule, which is not absolute or supreme, are more important than the rationalefor an overbreadth doctrine. In particular, the idea that an overbreadth doctrinemight go hand-in-hand with the proportionality doctrine conceived in Cox hasnot been considered. This issue has been forgotten.

53. 4 June 1999 (HC).54. Though I suggest this argument should not have been dismissed on ius tertii

grounds, it should not have succeeded on its merits, as there were no grounds forsaying that the classification here was irrational. The statute's aim required a widenet be cast - over all proceeds of crime - for it to be effective. The plight of thebonafide purchaser caught in this net might make the statute disproportionate,but this would require that person to have an order made against them (to showthe "serious risk of injustice" saver was insufficient) and to assess how great therestriction of rights was.

55. Murphyv GM[2001] 4 IR 113 (SC).56. Had the Supreme Court addressed these arguments, they would likely have

encountered ius tertii problems. Keane CJ noted that the arguments consideredby the Court "were necessarily confined to matters in which the appellants had anexisting interest. Issues which were merely hypothetical were not open for debateor subject to decision." [2001] 4 IR 113, at 159 (SC).

57. [2001] 4 IR 113, at 156 (SC). It is interesting to note that other in otherjurisdictions, particularly in the United States and Canada, the concept ofvagueness is seen as closely related to, though still separate from, overbreadth.See Tribe, note 1, at 1030-1035 and Hogg, note 2, at 47-53.

58. See Murphy v GMPB PC Ltd 4 June 1999, at 90 (HC).

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PROPORTIONALITY AND ABSTRACT REVIEW

In Heaney v Ireland9 Costello J in the High Court issued the canonicalformulation of proportionality:

The objective of the impugned provision must be of sufficient importanceto warrant overriding a constitutionally protected right. It must relate toconcerns pressing in a free and democratic society. The means chosenmust pass a proportionality test. They must:a. be rationally connected to the objective and not arbitrary, unfair, or

based on irrational considerations.b. impair the right as little as possible, andc. be such that their effects on rights are proportional to the

objective.6"

In rejecting the overbreadth element of Cox on the grounds of ius tertii, CostelloJ strongly indicated that the test he outlined should be applied in a plaintiff-centric rather than abstract manner, focusing only on the circumstances of theplaintiff in the case at bar. As the seminal statement of proportionality, this casehas been influential in preventing such abstract review in subsequent cases,and has encouraged a plaintiff-centric approach. It remains to be consideredwhether each limb should rely on the specific facts of the plaintiff's case orare more amenable to a more general, or abstract, construction. I suggest thatparts (a) and (b) are intended to be applied in the abstract, and attempting to dootherwise would lead to severe problems in their application. Part (c) however,the true proportionality test, can only be satisfactorily applied to a real plaintiff'scircumstances. I will also look at the justifications for including the overbreadthdoctrine in each of two abstract limbs.

A court wishing to apply the proportionality test must first ascertain theobjective of the statute. The objective must be "of sufficient importance"to override a right, so it must not be trivial, and must also be normatively"legitimate". Every subsequent part of proportionality requires courts to knowand examine the vector derived from this objective. Yet the analysis of objectivesor State interests in Irish proportionality cases is not rigorous. The courts willgenerally hypothesise for the State an interest or objective for a particularstatute.61 Courts will not look for illicit, invalid or illegitimate motives. It isalso very easy for the State to hypothesise, expostfacto, a plausible objectivefor the statute, which courts will usually accept. This is obviously a function of

59. [1994] 3 IR 593 (HC).60. [1994] 3 IR 593, at 607 (HC).61. See Oran Doyle, Constitutional Equality Law (Thomson Round Hall, 2004), at

119.

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the deference that courts pay to the legislature. Any excuse that can be plausiblyoffered for State action that is not patently improper or utterly trivial will sufficefor this purpose. A statute will rarely, if ever, fail to pass this test.62

ABSTRACT REVIEW AND OVERBREADTH IN MEANS-ENDS RATIONALITY

Part (a), means-ends rationality, is not an assessment of the plaintiff'scircumstances at all; it is an assessment of the statute itself. The test askswhether the means chosen by the legislature are related to the legitimateobjective the legislature is apparently pursuing. It is difficult to see why courtsconsider rational connection in proportionality analysis at all, given their generaldeference on the issue of legislative objective. The courts tend to hypothesiseobjectives for statutes that present them in the best way possible.63 This has amajor effect on means-end rationality. The courts hypothesise a purpose for astatute which is invariably derived from the means employed in that statute.64

How, then, can a statute ever fail this test? If the ends are derived from themeans, it would be remarkable if those means did not fit those ends. It looks asif the law was tailored to the purpose, but, in reality, the purpose was tailoredto the law. It is a foregone conclusion that there will be a rational connection.However, I believe the rational connection test is potent in spite of this, becauseit serves as a proxy for testing the legitimacy of State objectives in a far moresearching way than is allowed by the cursory examination of legitimacy ofinterests that prefaces the proportionality test. It allows courts to be deferentialin hypothesising the statute's aim or objective, while also facilitating indirectscrutiny of the objectives that the State claims to pursue.

It is almost impossible to establish that the legislature was in pursuit ofan illicit objective when passing a statute. There will almost always be somelegitimate motive the legislature may have had, and even if the illegitimate

62. This exceptional deference is perhaps best illustrated by Doyle v Hearne (No 2)[1988] IR 317 (SC), where the Supreme Court essentially held that the legislativediscrimination in question was purposeless, or had a purpose too opaque todetermine, but still upheld it. The Court held that since there was formal equalitywithin the inexplicably drawn categories, the law would stand.

63. See Doyle, note 61, at 120, where he notes that in Heaney, Costello J coulduphold the statute because he could identify an interest that was both legitimateand rationally connected. This required him to eschew other possible objectivesthat, though more closely connected with the means, bordered on illegitimate.

64. See, for example, Re Article 26 and the Illegal Immigrants (Trafficking) Bill 1999[2000] 2 IR 360 at 392 (SC), where the Supreme Court said the courts would notlook to parliamentary debates and other sources to ascertain the objective of laws:"[I]t will usually be possible for the court to make reasonable inferences from theprovisions of the statute itself."

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motive seems more likely from the face of the statute, it cuts against the ideaof judicial deference to accuse the legislature of pursuing, and concealing,illegitimate motives. It would not show "that respect which one great organof the State owes to another."65 A lack of means-ends rationality, however, canreadily be established, and is a common secondary effect of the legislature actingpursuant to a hidden motive. It asks whether or not the statutory provisions canbe justified by reference to a coherent purpose.6 6 If there is another motive behindthe law, the chosen means will likely reflect that. With overbroad or irrationalstatutes, such as the one in Cox, it is difficult or impossible to coherently arguethat the apparent purpose is embodied by the provisions. Accusing the legislatureof irrationality in drafting a law is much easier than accusing it of having anillegitimate objective. The means substantially departing from the vector of theprovision indicates one of two things: that the statute was passed pursuant toanother, hidden motivation, or else the statute is very poorly drafted. In eithercase, the law is irrational and should not stand.

In one sense, this rationality analysis is no less intrusive than questioningthe legislative objective directly. However, it avoids disrespectfully accusingthe legislature, based on speculative evidence, of having improper motives.Therefore, while an objective of the provision may be the most plausible oracceptable end the courts or the State could hypothesise, that will not guaranteea statute's rationality unless all or most of the potential applications of theprovision are actually on the vector of that objective. The rational connection testthus stops the State presenting a plausible, legitimate objective as the goal of thestatute, having actually legislated pursuant to other, less legitimate objectives.

If rational connection serves as a useful proxy for examination of legislativemotives, then it should not be plaintiff-centric. If doubt is implicitly cast onthe State's motives for passing the law, then the law should not be applied toanyone, regardless of whether or not a better, rational law could legitimatelytarget them. There is also no compelling reason why a concrete case of a personactually invalidly targeted should be required. It is the statute itself that is beingscrutinised, and the rationality of a statute should not change from case to case;it is either rational, or it is not, and no plaintiff's specific circumstance is neededto assess this.

Taking a plaintiff-centric approach would nullify this one useful function ofthe rational connection test. If rational connection were not examined generally,but simply as applied to the plaintiff, then the courts would hypothesise (or theState could plead, with an expectation of deference) an objective that relatesto the application of the law to the plaintiff specifically, but that would fail tojustify the overwhelming majority of the potential uses of the provision. The

65. Buckley vAttorney General [1980] IR 67, at 80 (SC).66. Particular measures can, of course, have multiple objectives, that might apply

in different circumstances. There is no reason, however, why all these purposesshould not be told to, or hypothesised by, the courts.

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objective need only be rationally connected to the means as applied to theplaintiff to pass muster.

One of the leading ius tertii cases exemplifies objectives being tailoredto justify a statute's application to a particular plaintiff. In Norris v AttorneyGeneral67 Mr Norris challenged laws relating to the criminalisation of sodomy.Sections 61 and 62 of the Offences Against the Person Act 1861 applied not onlyto homosexual sodomy, but also to heterosexual sodomy. One of his argumentswas that the law unconstitutionally interfered with the marital privacy of amarried couple who wished to engage in such acts. The majority of the Courtwould not entertain this argument as it was based on a ius tertii; Mr Norris, as ahomosexual man, was not in this position, nor would he ever be.68 Consequently,the State went on to justify the law as a prohibition on homosexual conduct,and the Court accepted this without question. The judgment of the majorityfocused on the statute's attempts to combat the effects homosexual activity hadon society. Even accepting these arguments, they justify only a portion of thestatute's potential applications.

If avoiding the secondary effects of homosexual conduct had been thepurpose of the law, then the law was clearly overbroad, as it included anyonewho engaged in acts of sodomy, homosexual or otherwise. To rationally connectmeans and ends in this case, the State would have to justify the criminalisationof sodomy generally, not just homosexual sodomy. Since Senator Norris'sargument on this point was dismissed on ius tertii grounds, the State was freeto offer justifications for the law that related to homosexual sodomy only. Itwas tailored to the specific case rather than the statute. There is something verydisquieting about the idea that the State, if confronted with a challenge to thislaw by a heterosexual couple, could offer an entirely different analysis of thelaw's purpose and have it upheld on an inconsistent basis.

There is some judicial and academic support for reading Cox as an applicationof the rational connection limb of proportionality. Humphreys notes, describingthe test applied in Cox, that Finlay CJ's argument assumed "that the selectionof offences must be rationally based..."69 Costello J in Heaney seemed to takethis view.v° Similarly, in Enright v Ireland71 Finlay-Geoghegan J suggested thatCox dealt with both rational connection and minimum impairment:

It is also clear from the decision of the Supreme Court that they did notconsider the provisions of s. 34 to be rationally connected to a legitimate

67. [1984] IR 36 (SC).68. [1984] IR 36, at 57-58. McCarthy J dissented on this point, stating that rigid

application of Cahill would lead to "absurdities," particularly in criminal cases.69. Humphreys, note 16, at 126.70. [1994] 3 IR 593, at 607 (SC).71. [2003] 2 IR 321 (SC).

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legislative purpose and to be impermissibly wide and indiscriminate andaccordingly incapable of passing a proportionality test.7 2

Both potential rationales for overbreadth and relaxation of ius tertii applyin relation to the rational connection test. When it is clear that a law isunconstitutional, why should we refuse to acknowledge this, and hold peopleto it because of their particular circumstances? We can know, without doubtor ambiguity, that a law lacks means-end rationality without the need for aparticularly situated plaintiff. If someone sufficiently impacted by the law tohave locus standi challenges its constitutionality, why should courts disregardarguments that show the law is unconstitutional, and allow it to remain in force?If these laws were held to be unconstitutional, the Oireachtas could pass a law,free of this defect, in its place. This might avoid the difficult situation where alaw is invalidated after decades of enforcement, leaving the courts to reconcileretrospective invalidity with the history of the law's application.73

Our Constitution enshrines particular rights because they are thought tobe of fundamental importance, and it behoves us to take them seriously. Ourcommitment to rights and the Constitution should make us willing to waive theius tertii rule in this instance. It is not needed here, and allows unconstitutionallaws to fester until the arrival of a perfect plaintiff.

As I have argued above, the rational connection test serves to indirectlyreview legislative motivation. This requires abstract analysis of this connection,and overbreadth is one of the best ways to establish irrationality of connectionbetween means and ends. Overbroad laws are, in straying from the vector ofthe objective, per se irrational, and call that objective into question. If a law'smotivation is suspect, that concern is shared by all those affected by the law,not merely those whose inclusion is the reason for the irrationality. Irrationalitydoes not change case by case, nor does it require a particular plaintiff.

ABSTRACT REVIEW AND OVERBREADTH IN MINIMUM IMPAIRMENT

Part (b) of the Heaney proportionality test - the minimum impairment test - isone that should also be applied in the abstract. This test asks if the legislaturecould have used other, alternative means that were available to them, whichwould achieve the same goals without detriment to rights. Of all the rationallyconnected means available to the legislature, they must select the best one fromthe perspective of avoiding rights violations.

This test, already difficult to administer, would become far more difficultif applied in a plaintiff-centric manner. This would have the courts look at

72. [2003] 2 IR 321, at 346 (SC).73. See A v Governor ofArbour Hill [2006] IESC 45.

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alternatives that were not generally less restrictive of rights, but specificallyless restrictive of the rights of the plaintiff. So, on its face, if an alternativewould achieve the goal of the statute and reduced the burden on the plaintiff'srights, that means that law failed to minimally impair the right of the plaintiffand should be struck down. This method would ignore many other concerns,not related to the plaintiff, which might tell against alternative means, suchas the rights of others that might be affected by the alternative means. Courtsshould obviously be allowed to have regard to this when deciding whetheran alternative ought to have been preferred. But if courts can rely on generalinterests, not merely the plaintiff's, to decide if an alternative was not viable,why should plaintiffs not rely on rights other than their own to show that otheralternatives were better suited?

It is easy to see why Cox overbreadth might be included in this limb of theproportionality test. In going further than is necessary to achieve its objective- in exceeding its vector - a law fails to minimally impair rights. If there is a lessrestrictive alternative available, a law could be considered overbroad. In Murphyv IRTC 4 the Supreme Court explained this element of Cox was concerned withminimum impairment:

In the present case the limitation placed on the various constitutional rightsis minimalist ... The case is totally different from that which existed in Coxv Ireland ... where a person who had violated the relevant section in evena minor way was liable to lose his job (if he was a public servant) and tobe barred forever from obtaining employment in the public service.75

The first rationale for overbreadth, that unconstitutional laws should not beenforced, applies with equal force to this limb of the test. If the State hasintentionally or recklessly violated rights to a greater degree than is necessary,and the law is thus unconstitutional, it is difficult to see why it should continueto apply. Commitment to the Constitution and the rule of law should mean thatwe do not want unconstitutional rules to apply to anyone, regardless of theircircumstances. As noted above, there is no need for a specific plaintiff for thisdetermination to be made; indeed the presence of a plaintiff merely confusesthe issue.

It may be that here, more than in the case of the rational connection test,overbreadth would produce unpalatable results. It could allow guilty parties towalk free on foot of a constitutional invalidity based on another person's rights,a constitutional windfall similar to the circumstances that led to the case of Av Governor of Arbour Hill.76 However, the fact that it might be unpopular is

74. [1999] 1 IR 12 (SC).75. [1999] 1 IR 12, at 26-27 (SC).76. [2006] IESC 45.

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not a principled objection to the idea that this might be the correct result. Othercountries have tolerated similar results.77 Additionally, the argument againstconstitutional windfalls, which swayed the Supreme Court in A, is about theconsequences of a declaration of unconstitutionality generally; it is not aboutallowing particular arguments to be raised. A windfall can accrue after a properlysituated plaintiff had a law struck down, as it did in A. Concern about this issue,then, should be addressed at the remedy level.

The second justification for overbreadth, based on rationality, is lessobviously applicable, because the minimum impairment doctrine is, on itsface, not concerned with rationality. I wish to argue, however, that minimumimpairment is best understood as a form of rationality analysis.

The minimum impairment limb demands that courts examine the variousdifferent ways to achieve the desired objective that were available to thelegislature, to ensure there was no alternative that was less restrictive of rights.This test, on its face, requires intrusive inquiry into the legislature's decision-making process. If taken literally and applied vigorously, this would have thecourts second-guessing the legislature's judgment and frequently replacing itwith their own. It raises many questions: what alternatives does the court consider- only those known to the legislature, or others of the court's invention? Howeffective must the alternative be? Must some sacrifice of efficacy be sufferedto protect rights, and if so, how much? These are legislative judgements, andto have courts freely intervene would make courts an upper legislative housewith power of veto over any statute concerning rights.

Strict application of the test would also demand from the legislature a levelof tailoring that would be close to perfect; any over-inclusion, if avoidable, failsthis test. Laws are rarely, if ever, perfectly tailored. It is almost impossible toenumerate a class of people or conduct perfectly, so generalisations and broadcategories are far from impermissible: they are unavoidable and essential.78 Thus,an illegitimately-targeted minority in a generalised class that is rationally targetedcan challenge the law only by claiming that in their particular case the effect oftheir inclusion on their rights was not justified by reference to the importanceof the statute's objective. That claim is one of proportionality, the third part ofthe Heaney test, which cannot be applied in the abstract.

77. In the Canadian case of R v Heywood 120 DLR 348 (4th, 1995) a convicted sexoffender taking photographs of children in parks succeeded in an overbreadthchallenge to the law preventing sex offenders loitering in parks. He invoked therights of a hypothetical sex offender conducting entirely innocent activities inparks, nowhere near children. Such results might be immensely unpopular.

78. In Enright v Ireland [2003] 2 IR 321, at 345 (SC), Finlay-Geoghegan J said, inthe context of this part of proportionality: "[I]t is permissible for the State, whenenacting legislation which seeks to defend or vindicate personal rights of thecitizens, to have regard to the practicality or feasibility of imposing the proposedobligations on different classes of persons."

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These problems, inherent in strict application of the test, would be exacerbatedby overbreadth, allowing the exploitation of any imperfect tailoring, whether ornot it was related to the particular plaintiff.79

I believe that the only sensible way to view this test is as another formof rationality - looking at whether the legislature irrationally or inexplicablydisregarded some alternative route to achieve their objective, which would notviolate rights to nearly the same degree. This increased deference would respectthe legislature's role, and not involve the courts in assessments for which theyare ill-suited." This would be preferable to any imperfect tailoring being primafacie unconstitutional, with reliance placed on a variable level of deference tosave such laws. Only where rights violations go far beyond the reach of the law'svector, and where a generally effective alternative is available, would a law failthis test. Rather than chastising the legislature every time they negligently tripover the rights of any individual, it would chastise them only when they werereckless in their disregard for those rights, or where it appears they actually wentout of their way to kick them. Viewed this way, minimum impairment is similarto means-ends rationality, in that it tests the rationality of the statute, but ratherthan focusing on the rationality of the means chosen in light of the objective, itfocuses on the rationality of the means chosen vis-d-vis a violation of rights.

The Irish courts do not apply this test strictly.81 Colgan v IRTC82 stronglysuggests that courts adopt this rationality approach. O'Sullivan J in the HighCourt, applying a Supreme Court precedent,83 noted that restrictions on rights

79. This can be clearly seen in Canada, where overbreadth operates in the minimumimpairment limb. In the seminal case of R v Heywood 120 DLR 348 (4th, 1995)which first set out the overbreadth doctrine, the Supreme Court held elements ofa statute overbroad on minimum impairment grounds, without stating that theywere irrationally overbroad rather than just poorly tailored. This led to problemswith the application of the test in subsequent cases, with double constructionand other measures being used to stop laws being invalidated by reason of poortailoring alone. See Hogg, note 2, at 47-56. Soon after Heywood the SupremeCourt conceded that tailoring "seldom admits of perfection," and adopted adeferential, rationality standard, accepting the chosen means once they werewithin a "range of reasonable altematives" open to the legislature. See RJRMacDonald Inc v Canada [1995] SCR 199, at [160].

80. In Colgan v IRTC [2000] 2 IR 490, at 512 (HC), O'Sullivan J noted that, in relationto the minimum impairment test, "judicial restraint may itself be an application ofthe presumption of constitutionality."

81. See Brian Foley, Deference and the Presumption of Constitutionality (IPA, 2008),at 130-136.

82. [2000] 2 IR 490 (HC).83. Murphy v IRTC [1999] 1 IR 12 (SC). There was a clear indication of a rationality

approach in that case as well, with the Court expressly rejecting the notion thatthey ought strike down the law despite an obviously less onerous altemative tothe blanket ban that was in place: "Once the State is broadly within the area of

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may be upheld under this test even if they are somewhat more far-reachingthan strictly required. The Court should "refrain from condemning a widerinfringement such as a blanket ban notwithstanding that a more selectivealternative is admittedly available, if a rational explanation for the widerinfringement is available."84

Applied strictly, the minimum impairment limb of proportionality placesundue restriction on the legislature, and the addition of overbreadth intensifiesthese problems by demanding perfect tailoring in every respect. To avoid thisundue strictness, the minimum impairment limb is best understood as a moredeferential form of rationality analysis. However, in this form, the dangersof introducing overbreadth are eliminated, as only substantial or irrationaloverbreadth - an impairment of rights obviously avoidable or inexplicablyharsh - is penalised, rather than mere imperfect tailoring. Moreover, the secondjustification for overbreadth would then apply to this test: in substantiallyexceeding the vector of the objective, the law is irrational. Such laws shouldnot stand, regardless of the plaintiff's particular circumstances.

THE LIMITS OF OVERBREADTH: TRUE PROPORTIONALITY

Part (c) of the proportionality test, which is closest to the everyday meaningof the term proportionality, is different from the other two parts. It asks if theeffects of the law on rights are proportional to the objective, and thus justified.The more important the objective, the greater the violation that will be allowed,and conversely, the more important the right, the lesser the violation that willbe tolerated. It demands that the courts weigh up and compare these seeminglyincommensurable concerns, and so depends on the existence of a plaintiff, witha real and pressing complaint to ground it. Thus, ius tertii should apply.

First, an abstract claim in this context would lack, in Henchy J's words,"the force and immediacy of reality." If judges do not know exactly what theimpact on rights is, they cannot appreciate its gravity, and it will be difficultto overcome the pressing objective pleaded by the State. It is tempting todefer to government in this balancing exercise; it will be particularly difficultto overcome this temptation if there is no actual plaintiff to ground the case.Secondly, the proportionality of the law may turn on whether a concrete caseever actually materialises. This is particularly true when a law tries to mitigatethe effects on those who might be included in a class unnecessarily by meansof a saver clause. Sometimes it will not be clear that these measures will beineffective unless a case arises to prove it, and courts will interpret them to

competence of the Oireachtas and the Oireachtas has respected the principle ofproportionality, it is not for this Court to interfere simply because it might havemade a different decision." [2000] 2 IR 490, at 27 (HC).

84. [2000] 2 IR 490, at 512 (HC).

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be effective insofar as possible thanks to the double construction rule. Thisrule states that if one or more construction of a particular statute is open to acourt, a construction that renders the statute constitutional will be preferred toone that renders it unconstitutional.85 Finally, a court might not conceive of aparticular set of facts when conducting abstract review and might hold the lawproportionate. If that set of facts later arises, the proportionality of the law mightbe governed by stare decisis, though on this new set of facts, the law would bedisproportionate.86 This scenario will not arise with rationality, where a statuteis either rational or it is not. Consequently, this proportionality analysis shouldalways be plaintiff-specific and be conducted afresh in each case.

From this, it follows that plaintiffs making arguments in relation to the firsttwo parts of proportionality should be allowed to invoke overbreadth. Thosewho make arguments based on the final part, however, cannot. This places alimit on the extent to which ius tertii rule would have to be rolled back in orderto accommodate this doctrine.

CONCLUSION: THE FUTURE OF PROPORTIONALITY AND Ius TERTII

The Irish courts have essentially ignored the conflict between overbreadth andius tertii. Without proper discussion of the issues, ius tertii has been prioritised.Ius tertii is not self-evidently superior, and since its application in this contexthas profound consequences for the application of the proportionality test, carefulconsideration is required.

Foley, in his recent book, argues that the overbreadth element of Cox wasan anomaly, a failure on behalf of the Court to apply proportionality principlesto the case itself.17 He sees proportionality and the Heaney test as preciselythe opposite of an abstract approach to review - the primary usefulness of thetest being to place statutes with lofty objectives under review by reference tospecific cases where rights are violated by them, and thus focus courts on therights issue. Foley may be correct in this, and certainly the final limb of theproportionality test is directed toward this end, but he seems to assume fromthis that all aspects of the proportionality test must then be plaintiff-centric. This

85. This rule, a facet of the presumption of constitutionality, was outlined by Walsh Jin McDonald v Bord na gCon (No 2) [1965] IR 217 (HC).

86. Henchy J in Cahill [1980] IR 269, at 282-283 (SC) seemed to suggest that therule that each new challenge to a statute would be heard afresh, regardless ofprevious decisions made on different facts, was part of the ius tertii rule, or existedbecause of that rule. There might be a risk, therefore, that a statute reviewed in theabstract would not be open to further challenges. The fact that statutes referred tothe Supreme Court for abstract review under Article 26 cannot be subsequentlychallenged might support this view.

87. Foley, note 81, at 285.

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prompts him to brand the finding of overbreadth in Cox to be a misapplicationor misunderstanding of proportionality.88 This is mistaken. This idea of plaintiff-centricity does not accord with the decision in Cox, the language of the test,or substance of the first two limbs. Perhaps the "bitter irony" is not, as Foleysuggests,89 that the Cox Court misapplied a plaintiff-centric test and ignoredthe circumstances of the plaintiff, but rather that these plaintiff-centric goals ofproportionality must follow from an abstract analysis that ignores the plaintiff'sfactual circumstances entirely.

The rejection of the overbreadth element of Cox leads courts toward aplaintiff-centric application of the entire test that is misguided. If the Irish courtswish to prioritise the ius tertii rule, forsaking all abstract review, they may haveto reject not only overbreadth, but the majority of the Heaney test as enunciated.The courts should either adopt that test in its entirety and apply it properly; notadopt it at all; or reformulate the test so that it might be compatible with the iustertii rule. Whatever the approach finally chosen by the courts, it is incumbentthat the issues are properly discussed.

I believe that the most desirable settlement of this conflict is to qualify iustertii to some extent in order to accommodate an overbreadth doctrine. If onewere to adopt abstract overbreadth review as part of proportionality analysis, thiswould not eradicate the ius tertii rule; cases of overbreadth would simply be anexception to that rule. In Cahill, and similar cases, plaintiffs could not invokerights that were ius tertii. In cases where overbreadth can be invoked, the highthreshold of rationality, and the double construction rule, will mean that the casesin which it would succeed would be limited to cases of irrational and unsolvableoverbreadth, rather than merely over inclusive or imperfectly tailored laws.90 Inthe cases where it would be successful, there are good and compelling reasons,based on the rule of law and suspicion of irrational legislation that violates rights,to invalidate those laws irrespective of the plaintiff's own circumstances.

While the rational connection and minimum impairment limbs of the Heaneytest can be applied in the abstract, any claim that is premised on the third limb ofthe test, dealing with proportionality itself, will be subject to the ius tertii rule.The rights of a hypothetical third party invoked by Ms Cahill were in no waylike the overbreadth argument that could be made in Cox, Heaney or Lovett. Shewas not attacking the rationality of including her hypothetical third party in thescope of the statute. She was challenging the proportionality of that measure,and that is a very different question.

The hypothetical plaintiff, who had suffered from latent damage, and as aresult found themselves statute barred, was not off the vector of the statute bar;

88. Ibid89. Ibid.90. In the United States, there is limit on hypothetical scenarios that may be relied on

in overbreadth: they must be within the statute's "plainly legitimate sweep." SeeBroadrick v Oklahoma 413 US 601 (1973), at 615.

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such a plaintiff would still wish to bring an action after a period of time thatthe legislature considered unfair on potential defendants. These people are asvalid a target as Ms Cahill to achieve that objective. This hypothetical plaintiffwould argue, not that they should not be targeted by a statutory bar at all, butrather that the bar as enacted was disproportionately restrictive of their rightsbecause of their particular circumstances. Their inclusion was not irrational;it was potentially disproportionate.91 The State might decide that their rightshave to be sacrificed in the name of the objective. This question is not abstract;it is profoundly important for there to be a real plaintiff before the court, sothat the extent of the impact on rights can be properly determined, and be putin context with a human example. The already difficult task of balancing theimportance of a State objective against the rights of a person would collapseinto incommensurability if there was not a real person, who had suffered theserights violations, before the court. The lure of simply deferring to the legislature'sinterest would otherwise be too great. Both theoretically and practically, the iustertii rule is sensibly applied to the true proportionality limb.

On the other hand, it must be admitted that there is a potential problem inoverbreadth being entirely dependent on the objective as pleaded by the State.Whether or not a case concerns proportionality rather than irrational overbreadthturns entirely on the objective pleaded by the State: both rational connectionand minimum impairment rely on the stated objective to define their scope. Aslightly different objective could mean the difference between a group beingrationally included or irrationally included in pursuit of it.

It is undeniable that overbreadth analysis does turn on the objective of givenstatute. This is not per se a problem; rational connection ferrets out improperor disingenuous motives and interests in statutes to compensate for the factthat courts must show deference to the legislature's stated motivations, andminimum impairment makes sure that the courts have achieved the objective ina way that does not excessively violate rights. It is natural that the analysis turnson the precise objective considered. However, since judges often hypothesiseobjectives, a great deal of power rests in their hands, as the objective they identifymight decide whether the statute stands or falls.92 This concern is lessenedby the deference that courts pay to the State in defining objectives. They willhypothesise on the State's behalf the most favourable objective for the meansused. This makes it unlikely thatjudges will craft interests to create overbreadthwhere there is none, or will make it very easy to notice this when they do so.

Another element of the presumption of constitutionality also curbs thepotential excesses of overbreadth: the double construction rule. The Canadian

91. Treating Cahill as turning on true proportionality assumes that the minimumimpairment test is based on rationality, as I have argued above. If one appliesthat limb of the test strictly, then one might see the claim in Cahill as a minimumimpairment issue.

92. See Hogg, note 2, at 47-53.

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courts used double construction to ensure that only when no saving interpretationis possible will a law be struck down as overbroad. 93 This stops plaintiffsexploiting imperfect tailoring to dream up fanciful hypothetical scenarios of howa law might operate by interpreting those scenarios out of the law's scope. Onlywhen a statute is clearly and unambiguously overbroad will the courts have tofind it invalid rather than narrow its scope through interpretation.

The tacit rejection of Cox overbreadth was a lamentable development,particularly because it was never given proper consideration. The strictapplication of ius tertii gives the rule undue importance: the rule shouldonly endure as long as the justifications for its use are more pressing thancountervailing considerations. Is it fair that courts must hypothesise a statute'sgood intentions to aid the State, but cannot hypothesise its negative consequencesto aid the plaintiff? I suggest that an overbreadth doctrine, allowing abstractreview in appropriate cases, is desirable - not only because it frees peoplefrom irrational and unconstitutional statutes and upholds the rule of law, butalso because such abstract analysis facilitates the proper and full applicationof the Heaney proportionality test. Ius tertii and overbreadth both have merits.We have, up to this point, prioritised the former at the expense of the latter.For the sake of better constitutional adjudication, and proper application of theproportionality test, we should compromise on an overbreadth doctrine thatdoes not relegate either, but respects the value of each.

93. In Heywood no such interpretation was possible without the law being judiciallyrewritten; R vHeywood 120 DLR 348 (4th, 1995), at 391 per Cory J. In Ontario vCanada Pacific [ 1995] 2 SCR 1031, Lamer CJ used double construction to upholdan environmental regulation governing discharge of contaminants that, on its face,applied in an overbroad fashion to wilderness smoke, and sand or dirt left on afootpath, by adopting a narrow interpretation that excluded such cases.

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A Dormant Doctrine of Overbreadth: Abstract Review and Ius Tertii in Irish Proportionality Analysis

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