The Separation of Powers and Remedies: The Legislative Power and Remedies for Unconstitutional...

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David Kenny*

The Separation of Powers and Remedies: The Legislative Power and Remedies for

Unconstitutional Legislation in Comparative Perspective

INTRODUCTION

[0.01] The Separation of Powers is a high constitutional value of Bunreacht nahEireann,1 which has long occupied the minds of the Irish courts. Irish academia hasalso spent a great deal of effort trying to tease out the meaning of this central, butopaque, doctrine. In the last ten years, there have been two focal points of enquiry intothis area: the question of how the separation of powers can and should control theexpanding administrative state;2 and the role of the separation of powers in restrictingjudicial remedies. However, in this latter category, the focus has been almost exclusivelyon the controversy surrounding the case of TD v Minister for Education,3 as to whetheror not the separation of powers does or should limit the courts’ powers to grantmandatory orders in respect of the executive, which is primarily relevant to the fewsocio-economic rights recognised in Ireland.4 A sprawling academic debate has sprung

up, exploring every aspect of this area. 5 However, surprisingly little academic attentionhas been trained on an equally important area where the separation of powers impactsupon constitutional remedies: the limitations on remedies for legislativeunconstitutionality by reason of the sole and exclusive legislative power of theOireachtas.6 In this paper, I wish to re-evaluate the influence of the separation of powerson legislative remedies in constitutional actions with the aid of internationalcomparison. I wish to suggest that embracing more radical remedies is another way inwhich we could ‘move beyond established Montesquian orthodoxies in order to developmore effective instruments of institutional governance.’7

1. *Lecturer, Trinity College Dublin School of Law.See TD v Minister for Education [2001] 4 IR 259; Sinnott v Minister for Education [2001] 2 IR545.

2. See for example Carolan, The New Separation of Powers, (Oxford University Press, 2009);Carolan, ‘Democratic Accountability and the Non-Delegation Doctrine’ (2011) 33 DULJ 220.

3. TD v Minister for Education [2001] 4 IR 259.4. The right to free primary education under Article 42.4, and the particular right recognised in the

TD line of case law, which might be described as a right to secure accommodation facilities forchildren at risk, are perhaps the extent of these. The TD right was a right derived in part from theState’s duty under Article 42.5 to supply the place of the parents where they fail for physical ormoral reasons. The right was conceded by the State in TD, and therefore not considered by theCourt, and it might be thought to be of questionable provenance.

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[0.02] When a provision of a statute is found to be unconstitutional in Ireland, thestandard remedy is that it is struck down outright. The declaration of unconstitutionalityis a strong remedy, but is considered an essential part of the judicial function inreviewing the constitutionality of legislation. Outside of this, the Irish courts are highlyconservative, and other remedial options, which stop short of invalidating the statute, arelimited.

[0.03] This paper has three parts. I begin by looking at alternative remedies available inIreland, to show that they are limited and fettered. The conservativeness shown by theIrish courts in this respect is motivated by fear that more radical alternative remedialoptions would cause the courts to usurp the sole and exclusive legislative power of theOireachtas. Secondly, I wish to look abroad, to Canada, the United States, and theUnited Kingdom, to highlight the broader array of remedial measures availableelsewhere, which stop short of invalidation of the law. Thirdly, I wish to argue that thisconservativeness is misguided. Alternative remedial options would allow the courts tostrike down fewer laws, and in so doing, would show greater respect to the legislature,by not disrupting the legislative regime to nearly so great an extent. The notion that thelegislature is better off with a gaping hole in the statute rather than with a slightly alteredlaw, which the legislature is at liberty to amend or repeal, is flawed. I wish to argue thatfar from offending the separation of powers, more expansive remedies would actuallyserve the ends which this facet of the separation of powers seeks to achieve: affordinggreater respect to the legislative branch, and preserving the integrity of its laws.

[0.04] It is important to note at the outset that I am not advocating that the protection ofrights should be abrogated to any extent toward this end. Rather, it is my contention thatthe protection of rights can be achieved equally well through alternative remedialoptions. Protecting rights and embracing these alternatives is not a zero-sum game.Similarly, this paper is not arguing for a return to what Gwynn Morgan has called the

5. See, for example, Hogan, ‘Judicial Review and Socio-Economic Rights’ in Sarkin and Binchy(eds), Human Rights, the Citizen and the State: South African and Irish Perspectives (Roundhall,2001) Gwynn Morgan, A Judgment Too Far? Judicial Activism and the Constitution (CorkUniversity Press, 2001); Whyte, ‘Rights and Judicial Activism’ in Keily (ed) Theorising IrishSocial Policy (2004), p 165; Hardiman, ‘The Role of the Supreme Court in Our Democracy’ inMulholland (ed), Political Choice and Democratic Freedom in Ireland (2004); Whyte, ‘The Roleof the Supreme Court in Our Democracy: A Response to Mr Justice Hardiman’ (2005) 27 DULJ368; O’Mahony, ‘Education, Remedies, and the Separation of Powers’ (2002) 24 DULJ 57;McDermott, ‘The Separation of Powers and the Doctrine of Non-Justiciability’ 2000 35 Ir Jur(ns) 280; O’Connell, ‘From Equality Before the Law to the Equal Benefit of the Law: Social andEconomic Rights in the Irish Constitution,’ in Doyle and Carolan (eds), The Irish Constitution:Governance and Values, (Thompson Round Hall, 2008). This is not an exhaustive list.

6. There are two notable exceptions in recent years. Paul Gallagher, ‘The Irish Constitution—ItsUnique Nature And The Relevance Of International Jurisprudence’ (2010) 45 Ir Jur (ns) 22;Carolan, ‘The relationship between judicial remedies and the separation of powers: collaborativeconstitutionalism and the suspended declaration of invalidity’, (2011) 46 Ir Jur (ns) 180.

7. Carolan’The relationship between judicial remedies and the separation of powers: collaborativeconstitutionalism and the suspended declaration of invalidity’, (2011) 46 Ir Jur (ns) 180, p 180.

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judicial-o-centric separation of powers,8 where granting the courts powers to remedyrights violations is more important than respecting the powers and functions of the otherbranches. There is an argument to be made that more radical remedies should beadopted for the sake of rights holders, but that is not the argument I wish to advancehere. Rather than seeking to benefit the judiciary, or the rights holder, in the allocationof powers, the idea underlying this paper is that the judiciary could achieve the goal ofrespecting and protecting the functions the legislative branch more effectively byovercoming their reluctance to adopt alternative remedies. It is not an argument forjudicial supremacy over the other branches of government; nor is it seeking to changethe courts’ views on the priorities the court should have in the sphere of remedies. It israther an argument as to how that priority should be achieved.

PART I: PRIMARY AND ALTERNATIVE REMEDIES FOR UNCONSTITUTIONAL LEGISLATION IN IRELAND

[0.05] In Ireland, the standard remedy for an unconstitutional law is to strike it downentirely. This means, generally speaking, that the law is held to be void ab initio, that ithas never been valid, and does not survive the finding.

[0.06] In Murphy v Attorney General,9 Henchy J laid out what Hogan and White refer toas the ‘primary rule of redress’.10 He said:

‘Once it has been judicially established that a statutory provision enacted by theOireachtas is repugnant to the Constitution, and that it therefore incurredinvalidity from the date of its enactment, the condemned provision will normallyprovide no legal justification for any act done of left undone or for anytransactions undertaken in pursuance of it.’11

[0.07] The unconstitutionality of a law will amount to a ’judicial death certificate.’12

8. David Gwynn Morgan, ‘Judicial-O-Centric Separation of Powers on the Wane’, (2004) 39 Ir Jur(ns) 142.

9. Murphy v Attorney General [1982] IR 241.10. Hogan and Whyte, JM Kelly: The Irish Constitution, (4th edn, Tottel, 2004), p 901.11. Murphy v Attorney General [1982] IR 241 at 313. Though A v Governor of Arbour Hill [2006]

IESC 45 has added, in Doyle’s words, ‘considerable nuances’ to Murphy, the status of thedeclaration of invalidity as the primary rule of redress is secure. Doyle, Constitutional Law:Cases and Materials (Clarus, 2008), p 311.

12. Murphy v Attorney General [1982] IR 241 at 307. It should be noted that Henchy J was referringto a declaration of unconstitutionality under Article 50, where a pre-1937 statute was not carriedover by virtue of that section because of constitutional invalidity. However, I can see no reasonwhy this is not equally true for any declaration of unconstitutionality, nor does it seem thatHenchy J was expressly limiting this sentiment to this category of cases.


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[0.08] Needless to say, invalidation of the law is ‘strong medicine,’13 albeit strongmedicine that is prescribed by the text of the Constitution.14 However, the potency of thedeclaration provides a good reason to want to avoid it, to remedy the ailment with a less-radical cure. There are two other direct15 remedies for unconstitutional laws: the law canbe interpreted harmoniously to avoid unconstitutionality, in a doctrine known as the‘double construction rule’; or it can have its unconstitutional language severed, leavingthe constitutional language to stand alone. Both of these remedies allow the law tosurvive by excising the unconstitutional elements, while also resolving the constitutionaldifficulty that has been raised. However, both of these remedies, as adopted in Ireland,are strictly limited in their scope.

The Double Construction Rule and its Limits

[0.09] The double construction rule, in short, states that courts should interpret outconstitutional invalidity, saving the statute from a declaration of unconstitutionality, butonly when two plausible interpretations of the statute are open to the court.16 The court,looking at the statute, finds that both Interpretation A and Interpretation B are plausible;neither is clearly the meaning of the words used. Interpretation A is constitutional;Interpretation B is not. The court, in this circumstance, must adopt Interpretation A,finding the law to constitutional, and saving it from invalidity. The law is essentiallygiven ‘the benefit of a doubt’.17 The impetus behind this rule is the presumption ofconstitutionality – the presumption that the Oireachtas acts constitutionally, famouslyoutlined by Hanna J in Pigs Marketing Board v Donnelly.18 In McDonald v Bord nagCon, the double construction rule was held to be the ‘practical effect of thispresumption.’19

13. This was the language used to describe the comparable remedy in the United States in Broderickv Oklahoma 413 US 601 (1973), 615.

14. Article 15.4.1° provides: ‘The Oireachtas shall not enact any law which is in any respectrepugnant to this Constitution or any provision thereof.’ Article 15.4.2° provides: ‘Every lawenacted by the Oireachtas which is in any respect repugnant to this Constitution or to anyprovision thereof, shall, but to the extent only of such repugnancy, be invalid.’

15. By direct, I mean remedies that actually address the invalidity of the statute, rather than trying tocompensate for the statute’s effects. There is an interesting, though now uncertain, jurisprudenceon the issue of damages for breach of constitutional rights. See Keating v Crowley [2010] IESC29. Damages do not purport to solve the constitutional problems with the legislation; an award ofdamages might be a remedy for an individual, but it cannot be a remedy for the legislativeproblem, and so falls outside the scope of this paper.

16. The rule was first enunciated in McDonald v Bord na gCon [1965] IR 217 at 239. ‘[I]f in respectof any provision or provisions of the Act two or more constructions are reasonably open, one ofwhich is constitutional and the other or others are unconstitutional, it must be presumed that theOireachtas intended only the constitutional construction and a court called upon to adjudicateupon the constitutionality of the statutory provision should uphold the constitutionalconstruction.’ Hogan and Whyte trace the earliest indications of such a rule to the earlier case ofGrimes v Owner of Bangor Bay [1948] IR 350. Hogan and Whyte, JM Kelly: The IrishConstitution, (4th edn, Tottel, 2004), p 854.

17. Hogan and Whyte, JM Kelly: The Irish Constitution, (4th edn, Tottel, 2004), p 855.

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[0.10] However, the double construction rule is limited in scope. While it is notabsolutely necessary that both interpretations be equally plausible,20 the rule can onlyhave a role to play where more than one construction of a statute is ‘reasonably open’21

to the court – essentially where there is ambiguity as to the meaning of the statute.22

When the statutory language is clear, it has no role to play.23 Though the rule can allowconstructions that would not immediately be apparent on their face,24 does not allow acourt to ‘do violence to the plain meaning of words’.25

[0.11] The limitation on the scope of the rule is well illustrated by Re Haughey.26 Thecase concerned the investigation of the Oireachtas’s Public Accounts Committee into theconduct of the applicant, where he had refused to give evidence, was convicted ofstanding in contempt of the committee, and sentenced to 6 months. The question beforethe courts was whether the statute27 that purported to empower the committee to certifycases to the High Court for punishment of individuals in like manner to contempt ofcourt was constitutional [AQ: is I have filled in the last two words of this sentence. Is

18. ‘When the Court has to consider the constitutionality of a law it must, in the first place, beaccepted as an axiom that a law passed by the Oireachtas, the elected representatives of thepeople, is presumed to be constitutional unless and until the contrary is clearly established.’ (PigsMarketing Board v Donnelly [1939] IR 413 at 417).

19. McDonald v Bord na gCon [1965] IR 217 at 239.20. ‘[I]t is not only a question of preferring a constitutional construction to one which would be

unconstitutional where they both may appear to be open but it also means an interpretationfavouring the validity of an Act should be given in cases of doubt.’ (East Donegal Co-operativeLivestock Market v Attorney General [1970] IR 317 at 341).

21. McDonald v Bord na gCon [1965] IR 217 at 239.22. See Colgan v IRTC [2000] 2 IR 490 at 506.23. In Re Article 26 and the Employment Equality Bill 1996 [1997] 2 IR 321 at 369, Hamilton CJ

stated: ‘The so called rule can only apply where there is an ambiguity or a choice between twoconstructions. If on a reading of the section the plain words are apparent, then the duty of thecourt is to give effect to a literal reading of the section.’

24. An example of this, given by Hogan and Whyte, is Doyle v An Taoiseach [1986] ILRM 693,where a section of the Finance Act suggested retrospective validation of certain orders previouslymade in contravention of Article 15.5.1.° The Supreme Court denied it of this meaning, and gaveit only prospective application, leaving it as ‘little more than an empty shell, devoid of its originalpurpose’. Hogan and Whyte, JM Kelly: The Irish Constitution, (4th edn, Tottel, 2004), p 858. Ofcourse, any statute that appears not to require a procedure that is subsequently insisted upon byway of double construction involves an artificial meaning. See Dellway Investments v NAMA[2011] IESC 14. Perhaps all double construction interpretations are artificial in this sense. If theywere not, the application of the rule would be unnecessary.

25. Re Haughey [1971] IR 217.26. [1981] IR 217.[AQ: [1971] in above footnote]27. Section 3(4) of the Committee Public Accounts of Dáil Éireann (Privilege and Procedure) Act

1970. The section instructed that if a witness failed to follow instructions provided for by thatsection, or did anything before the committee that would amount to contempt if the committeewere a court, then ‘the committee may certify the offence of that person under the hand of thechairman of the committee to the High Court and the High Court may, after such inquiry as itthinks proper to make, punish or take steps for the punishment of that person in like manner as ifhe had been guilty of contempt of the High Court.’


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this correct?]. Mr Haughey contended that the section empowered the committee to tryand convict him of an offence, even though they were not members of the judiciary. TheSupreme Court acknowledged that this might be the case applying ordinary statutoryconstruction rules.28 However, applying the double construction rule, the Court foundthat the power of the committee was limited to a preliminary stage in the investigation,with the High Court actually responsible for the trial and conviction of the person.29

[0.12] However, the High Court had gone further, holding that the double constructionrule allowed the High Court to try the committee’s witness by jury. The Supreme Courtwas unwilling to stretch the language of the section to this extent:

‘[T]he presumption of constitutionality is not to be applied where it would doviolence to the plain meaning of the words. It is, in the opinion of this Court,beyond the reach of the presumption of constitutionality to read into the simpleinquiry formula of the sub-section an intention to authorise trial by jury.’30

This provides a clear indication of the circumscribed nature of this rule. 31 It does notseem like an unduly radical rewriting of the subsection to say that the High Court wouldbe allowed to empanel a jury for the sake of this enquiry; it is not a great deal moreimplausible that reading the section as allowing conviction only by the High Court.32

[0.13] The double construction rule is certainly a useful remedial tool, which avoidsconstitutional invalidity in some instances. The primary usefulness of the rule has beenin the same context in which it originated in McDonald v Bord na gCon33 and EastDonegal Co-Operative v Attorney General:34 the implication of procedural protectionsand a duty to act fairly into statutes.35 Perhaps the most high profile example of this inrecent years was the Supreme Court judgment in Dellway Investments v NAMA,36 where

28. Re Haughey [1971] IR 217 at 251.29. The section provided the High Court may punish the individuals ‘after such inquiry as it thinks

proper to be made’. The Supreme Court was willing to stretch this language to uphold theconstitutionality of the measure. (Re Haughey [1971] IR 217 at 252).

30. Re Haughey [1971] IR 217 at 254. Material in square brackets is original parsing by the SupremeCourt. In point of fact, even had the interpretation of the High Court been acceptable, theSupreme Court believed it would not have cured entirely the constitutional defect in the section.At 255, the court found that even in that case, the section would allow summary trial or trial onindictment. However, this was not a minor offence, and summary trial is not allowed for suchoffences. The section would be repugnant to Article 38.1 for that reason as well.

31. For more on these limitations, see Hegarty v O’Loughran [1990] 1 IR 148; Grealish v DPP[2001] 3 IR 144; Cummins v McCartan [2005] 3 IR 559 [2005] IESC 67.

32. On the face of the provision, the High Court’s role is to punish, not to convict.33. McDonald v Bord na gCon [1965] IR 217.34. East Donegal Co-Operative v Attorney General [1970] IR 317.35. See eg, Loftus v Attorney General [1979] IR 221; Countyglen v Carway [1998] 2 IR 540; GE v

Refugee Appeals Tribunal [2006] 2 IR 11; The State (Healy) v Donoghue [1976] IR 325; Croke vSmith (No 2) [1998] 1 IR 101.

36. Dellway Investments v NAMA [2011] IESC 14.

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the Supreme Court read the NAMA Act 2009 as demanding fair procedures be providedto those individuals whose loans NAMA planned to acquire from participating banks.

[0.14] However, the limitations on the rule are, in practice, very significant. In meansthat there are a great many cases where the rule simply cannot be used. Courtsfrequently consider using double construction, but conclude it is not appropriate, due to

the limitations placed on the rule. 37 Of course, even more important in this context is theunknowable category of cases where use of the rule is not even considered, as theinterpretation of the statute in this never questioned in this way. Part of the problem is

that it is seen as much as a rule of statutory construction as a constitutional remedy.38 Itis only judicially considered if there is some dispute as to the meaning of an act, and thisarises often in fair procedures cases, with the provision being silent on the point. Abroader remedial rule might be used in many more cases, which would not even beconsidered under the rule as it currently stands.

Linguistic Severance and Its Limitations

[0.15] The other remedial option is linguistic severance – the metaphorical crossing outof the statutory language that created the invalidity. This allows the unconstitutionallegislation to be saved if the unconstitutionality arises from a specific and discretepotion of the legislative language; the court will strike out that language, saving the restof that provision from invalidity.39

[0.16] This rule originates from the language of Article 15.4.2°,40 which provides:‘Every law enacted by the Oireachtas which is in any respect repugnant to thisConstitution or to any provision thereof, shall, but to the extent only of such repugnancy,be invalid.’ Linguistic severance flows from this; if the invalidity of the law arises from a

37. See, for example, Grealis v DPP [2001] 3 IR 144; McCann v Judge Monaghan [2009] 4 IR 200;DK v Crowley [2002] IR 744; Kelly v Minister for Environment [2002] 4 IR 191.

38. The most vivid illustration of this was in the case of CC v Ireland, discussed in detail below,where the case was first dealt with by the Supreme Court on the question of interpretation.Double construction was not discussed ([2005] IESC 48). In the second Supreme Courtjudgment, with the interpretation of the law already settled, the law was struck down ([2006]IESC 33). The double construction rule was not discussed here either, essentially falling throughthe cracks between interpretation and assessment of constitutionality. This is probably a result ofits origins in the presumption of constitutionality; it is seen not as a remedial tool, but as aninstantiation [AQ: is this the correct word in this context?] of the Oireachtas’s presumed intent.O’Mahony has recently suggested, in passing, that the rule might be better to stand alone, withoutreliance on the presumption. See O’Mahony, ‘Societal Change and Constitutional Interpretation,’[2010] Vol 1(2) IJLS 71, p 85. I believe justifying it as a separate remedial rule would be the bestcourse of action.

39. Deaton v Attorney General [1963] IR 170; King v Attorney General [1981] IR 233.40. Article 50.1, carrying across the laws of Saorstát Éireann, similarly provides that such laws shall

continue in full force and effect ‘to the extent to which they are not inconsistent with [theConstitution]’. This provision grounds similar considerations in respect of pre-1937 statutes.


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discrete portion of the law, only that portion of the law is invalid according to thisArticle.

[0.17] The doctrine was announced, with very little fanfare, by Ó Dálaigh CJ in Deatonv Attorney General.41 A section of the Custom’s (Consolidation) Act 1876 purported toallow the Revenue Commissioners to choose which of two penalties would be imposedfor a particular offence. The Supreme Court found this a repugnant usurpation of thejudicial power. The remedy offered by the court, citing Article 15.4, was to sever thewords ‘at the election of the Commissioners of Customs’ from the statute. ‘The sectiontherefore remains intact but with the words ... deleted therefrom.’42

[0.18] However, severance can only be performed when two conditions are met.43 First,it will only be done when the law would be sensible and operable after severance hastaken place; the law must be able to survive the deletion, or else there would be littlepoint in deleting the language.

[0.19] For example, in An Blascaod Mór Teo v Commissioner of Public Works (No 3)44

the Supreme Court held that a distinction based on pedigree found in the An BlascaodMór National Historic Park Act 1989, which was held to be unconstitutional in that case,was too entwined with the legislation to be severed. Similarly, in Blake v AttorneyGeneral,45 the Supreme Court held that severance can only take place if the legislation‘had been enacted in a manner and context that would leave it with a separate and self-contained existence’,46 and this was not the case.

[0.20] Secondly, even if the constitutional portions could stand independently, severancecannot undermine the intention of the legislature. The statute, after severance, must stillreflect the legislative policy.

[0.21] In Maher v Attorney General, 47 the plaintiff was claiming that s 44(2)(a) of theRoad Traffic Act 1968 was invalid because it made a certificate of blood alcohol level‘conclusive evidence’, thus usurping the judicial function. The Supreme Court agreed,but refused to sever the word conclusive to allow the remainder of the provision to stand.The Court held that the legislature had not contemplated the existence of the sectionwithout the word ‘conclusive’, and so the law post-severance could not be said to reflectthe legislative intention.48

41. Deaton v Attorney General [1963] IR 170.42. Deaton v Attorney General [1963] IR 170 at 184.43. In Maher v Attorney General [1973] IR 140 at 147,Fitzgerald CJ put these limitations as follows:

‘[I]f what remains is so inextricably bound up with the part held invalid that remainder cannotsurvive independently, or if the remainder would not represent the legislative intent, theremaining part will not be severed and given constitutional validity.’

44. An Blascaod Mór Teo v Commissioner of Public Works (No 3) [2000] 1 IR 6 at 19.45. Blake v Attorney General [1982] IR 117.46. Blake v Attorney General [1982] IR 117 at 140.47. Maher v Attorney General [1973] IR 140.

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[0.22] There have been other, similar cases where severance has been refused for thisreason,49 such as O’Brien v Keogh,50 where the Supreme Court declined to sever wordsfrom s 49 of the Statute of Limitations 1957 for fear of contravening legislativeintention. In King v Attorney General,51 Henchy J, and the majority of the SupremeCourt, refused to perform ‘verbal amputation’52 on the problematic language in theVagrancy Act 1824, as it would exceed the judicial power.53 There was also an elementof this at work in Blake.54

[0.23] Additionally, no severance will be forthcoming in the event that it would havecost implications for the exchequer.55

[0.24] Courts have proven willing to conduct even very complex severance when casesdo not fall foul of these limits.56 However, the limitations are significant indeed, and as aresult there are only a handful of cases where significant severance has taken place tosave a law from invalidation. As with double construction, the real proof of the severityof the limitations is negative evidence: in most cases, it is not even considered.57

48. Maher v Attorney General [1973] IR 140 at 149. Hogan and Whyte note that in that instance, thelegislature had specifically rejected a suggestion that the analysis be prima facie evidence only.Hogan and Whyte, JM Kelly: The Irish Constitution, (4th edn, Tottel, 2004), p 886.

49. See also State (Attorney General) v Shaw [1979] IR 136; Murphy v Wallace [1993] 2 IR 138;MhicMhathuna v Ireland [1989] 1 IR 504 at 510, where Carroll J discussed the impossibility ofsevering [AQ: a verb was missing here; is this the correct one?] social welfare and taxprovision from their respective codes, though she did not find that the plaintiff ’s rights had beenviolated.

50. O’Brien v Keogh [1972] IR 144.51. King v Attorney General [1981] IR 233.52. King v Attorney General [1981] IR 233 at 258.53. The section made it an offence for a suspected person or reputed thief to loiter in or about

particular places with the intention of committing a felony. Counsel for the Attorney Generalsuggested that the words ‘suspected’ and ‘reputed’ thief could be severed, so that the sectionwould read ‘every person’, and cure the vagueness that rendered the section unconstitutional.O’Higgins CJ, in dissent, would have adopted this interpretation, on the basis that the fact that thestatute pre-dated 1937 [AQ: a word was missing here; is this correct?], so that preserving thelegislative intention was not a proper consideration (King v Attorney General [1981] IR 233 at253).

54. Blake v Attorney General [1982] IR 117 at 141. As well as being integral and intertwined withthe rent control portions of the Rent Restrictions Act 1960, the court considered that [AQ: a verbwas missing here; is this the correct one?] the legislature had enacted the measures onrepossession alongside the rent control scheme, and they were intended to apply together.

55. Greene v Minister for Agriculture [1990] 2 IR 17.56. See Desmond v Glackin (No 2) [1993] 3 IR 67. In that case, the Supreme Court was willing to

sever from two different subsections in order to sever the invalid language. See Hogan andWhyte, JM Kelly: The Irish Constitution, (4th edn, Tottel, 2004), pp 888–889.


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The Rationale for the Limits on Alternative Remedies: The Separation of Powers

[0.25] The use of these alternative remedies is severely circumscribed. Whether anyparticular law can be saved by these means depends on somewhat arbitraryconsiderations of language.58 The reason for the significant limitations on theseremedial tools is fear on behalf of the Irish courts that going any further would violatethe separation of powers – take them outside of their role as judges and set them on thetask of law-making. To adopt a radical construction of a statute, or sever language thatwould contradict legislative intention, would, the courts say, usurp the legislative power,vested solely and exclusively in the Oireachtas in Article 15.2.1°. This is quite apparentin the cases confining the scope of these rules.

[0.26] In the East Donegal case, Walsh J argued that limits on double construction werenecessary to preserve the separation of powers:

‘[I]nterpretation or construction of an Act or any provision thereof in conformitywith the Constitution cannot be pushed to the point where the interpretation wouldresult in the substitution of the legislative provision by another provision with adifferent context, as that would be to usurp the functions of the Oireachtas.’59

[0.27] Courts frequently decline to use the double construction rule because it wouldgive the statute a meaning that was not an expressed intention of the Oireachtas.60 InMcCann v Judge Monaghan, dealing with the constitutionality of the process ofimprisonment for non-payment of debt, Laffoy J noted that ‘it is not permissible torewrite the legislative provision in a manner which amounts to usurping the functions ofthe Oireachtas’.61 Double construction could only be used if the interpretation ‘does not

57. Doyle and Feldman suggest that Carmody v Minister for Justice [2009] IESC 71, [2010] 1 ILRM157 might be a case where severance was suitable but not even suggested. There, the SupremeCourt held that the limitations on availability of counsel to legal aid applicants before the DistrictCourt created an unconstitutional state of facts. The authors suggest that the language restrictingthe availability of counsel would have let the District Court continue to grant legal aid inappropriate cases, in line with the factors laid out in the Carmody judgment. See Oran Doyle andEstelle Feldman, ‘Constitutional Law,’ in Raymond Byrne and William Binchy (eds), AnnualReview of Irish Law 2009 (Round Hall, 2009), p 223.

58. In the case of both the double construction rule and severance, the first determining factor will bethe style of the statute’s drafting. If the statute happens to drafted in such a way that the invaliditystems from a single clause or phrase, then severance will be considered. If the invalidity isentangled with the law, it will not be. Similarly, double construction will largely depend on theclarity with which the statute is drafted: clear language and plain meaning will render use of thedouble construction rule impossible, whilst an ambiguous law can be saved.

59. East Donegal Co-operative Livestock Market v Attorney General [1970] IR 317 at 341.60. Keane CJ in Grealis v DPP [2001] 3 IR 144 declined to apply the double construction rule in a

way that would imply an unexpressed intention of the Oireachtas. Cf McKechnie J in Kelly vMinister for Environment [2002] 4 IR 191 at 215.

61. McCann v Judge Monaghan [2009] 4 IR 200 at 247.

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alter the meaning of [the Act] to the extent that it gives rise to a different statutoryprovision to that enacted by the Oireachtas’.62

[0.28] The fear of usurpation of the legislative power similarly underlies the restrictionon linguistic severance. In Maher v Attorney General, Fitzgerald CJ noted Article15.2.1°, and said:

‘If, therefore, the courts were to sever a part of a statutory provision asunconstitutional and seek to give validity to what is left so as to produce an effectat variance with legislative policy, the court would be invaliding the domainexclusive to the legislature and thus exceeding the court’s competency. In otherwords, it would be seeking to correct one form of unconstitutionality by engagingin another.’63

The consequence of this conservativeness in granting remedies is that the primaryremedial option – striking the legislative provision down in its entirety – must then berelied upon. I wish to argue that it is perverse to do such damage to the legislative fabricin the name of preserving the legislative power. Before that, however, I wish to illustratehow other legal systems have adopted more radical remedial options, which lead tofewer laws being invalidated in their entirety.

PART II: REMEDIES FOR CONSTITUTIONALLY REPUGNANT LEGISLATION: COMPARATIVE PERSPECTIVES

[0.29] Ireland’s jurisprudence on these alternative remedies has changed very little sincethe 1960 and 1970s, when it initially took shape. These rules are now so entrenched inthe legal culture that it scarcely occurs to question them. However, looking abroad to theconstitutional jurisprudence of other common law jurisdictions, we find remedialjurisprudence that is not nearly as conservative. These are not jurisdictions withradically different constitutional orders, or fundamentally different ideas of theseparation of powers; they all place limits on remedial tools to avoid violation of theseparation of powers. They are rather jurisdictions that have thought both acceptable andbeneficial to adopt more radical remedies.

Harmonious Interpretations under s 3 of the UK Human Rights Act

[0.30] An immediate and stark comparison can be seen by examining the Irish approachto harmonious interpretation in the double construction rule, and the approach of theUK courts under s 3 of the Human Rights Act.64 The approach of the UK courts has

62. McCann v Judge Monaghan [2009] 4 IR 200 at 248.63. Maher v Attorney General [1973] IR 140 at 147.64. The Canadian rule in this respect is probably somewhat broader than the Irish rule as well. See

Peter Hogg, Constitutional Law of Canada, (5th edn, Carswell, 2007), paras 40–18–40–19. SeeRuby v Canada [2002] 4 SCR 3; Canadian Foundation for Children v Canada [2004] 1 SCR 76;United States v Ferras [2006] 2 SCR 77; Montreal v 2952–1366 Quebec [2005] 3 SCR 141.


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been much broader, and allows for much more sweeping interpretations, than its Irishconstitutional counterpart. Section 3(1) of the Human Rights Act 1998 states: ‘So far asit is possible to do so, primary legislation and subordinate legislation must be read andgiven effect in a way which is compatible with the Convention rights.’ UK courts couldhave read this duty as a very limited one, similar to the double construction rule inIreland, only being invoked where two equally plausible interpretations exist, and neverfrustrate legislative intention. However, they did not do this, and the s 3 interpretativeduty became potent.

[0.31] Ghaidan v Godin-Mendoza65 is probably the most important judicialpronouncement on the scope of s 3. The House of Lords adopted a radical interpretationof the Rent Act 1977. The concept of living with a tenant ‘as his or her wife or husband’was taken to mean ‘as if his or her wife or husband’ for the purpose of statutory tenantsuccession. In so doing, the Law Lords extended such succession rights to cohabitingsame-sex couples in stable relationships.

[0.32] Lord Nichols insisted that s 3 would require departure from parliamentaryintention, but ‘[t]he question of difficulty is how far, and in what circumstances, s 3requires a court to depart from the intention of the enacting Parliament.’66 In fact, heheld the courts may go quite far, once they did not stray into areas that exceed theirexpertise, and once a fundamental feature of the legislation was not ignored. The dutywas such as to:

‘... require a court to read in words which change the meaning of the enactedlegislation, so as to make it Convention-compliant. In other words, the intention ofParliament in enacting section 3 was that, to an extent bounded only by what is“possible”, a court can modify the meaning, and hence the effect, of primary andsecondary legislation. Parliament, however, cannot have intended that in thedischarge of this extended interpretative function the courts should adopt ameaning inconsistent with a fundamental feature of legislation. That would be tocross the constitutional boundary... Parliament has retained the right to enactlegislation in terms which are not Convention-compliant. The meaning importedby application of section 3 must be compatible with the underlying thrust of thelegislation being construed. Nor can Parliament have intended that section 3should require courts to make decisions for which they are not equipped. Theremay be several ways of making a provision Convention-compliant, and the choicemay involve issues calling for legislative deliberation.’ 67

65. Ghaidan v Godin-Mendoza [2004] 2 AC 557.66. Ghaidan v Godin-Mendoza [2004] 2 AC 557 at [30].67. Ghaidan v Godin-Mendoza [2004] 2 AC 557 at [32]–[33].

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[0.33] There have been other significant invocations of s 3,68 but Ghaidan remains theleading case on the scope of the duty.69 The interpretation ultimately adopted by themajority of the Law Lords was used to alter the meaning of statutory language, and doesnot stand upon the intention of parliament. The majority did not feel that the exclusionof same-sex couples, or the limitation of the scheme to cohabitees in quasi-maritalrelationships was a fundamental feature of the regime, showing how the s 3 standard isradically different from the Irish double construction rule.70 This approach is not withoutits critics, but it nevertheless prevails.71

Linguistic Severance in Canada

[0.34] Canada has a very broad remedial jurisprudence for rights violations under theCanadian Charter of Rights and Freedoms. One element of this is a linguistic severancerule that would sever language in circumstances where Irish courts would not.72

Canadian courts will sever language at the risk of cost to the exchequer.73 Moreover, this

68. For example, Secretary of State for the Home Department v MB [2008] 1 AC 440, the House ofLords significantly read down two powers used to deny those subject to control ordersinformation about the basis of the government’s suspicion of them. Lord Bingham noted at [44]that this interpretation flew in the face of parliamentary intention.

69. See in particular R v A (No 2) [2002] 1 AC 45, Wilkinson v IRC [2005] UKHL 30.70. However, one can have a vigorous debate about what features are fundamental to a given piece of

legislation. That reasonable people disagree on this point is shown by Lord Millet’s dissent in thiscase, where he argued that the majority’s interpretation overwrote a fundamental feature of theRent Act. (Ghaidan v Godin-Mendoza [2004] 2 AC 557 at [78]). Wilkinson v IRC [2005] UKHL30 was a case that ran up against this limit. A widower claimed that s 262(1) of the Income andCorporation Taxes Act 1988 should be subject to a s 3 interpretation in order to grant to him abenefit granted only to widows in the statute. The House of Lords said that such an interpretationwould go too far.

71. For academic commentary on the rule, see Kavanagh, Constitutional Review under the UKHuman Rights Act (Cambridge University Press, 2009); Young, ‘Ghaidan v. Godin-Mendoza:Avoiding the Deference Trap’, 2005 PL 23; Sales and Ekins, ‘Rights Consistent Interpretationand The Human Rights Act 1998,’ (2011) 127 LQR 217; Jan van Zyl Smit, ‘The New PurposiveInterpretation of Statutes: HRA Section 3 after Ghaidan v Godin-Mendoza’, (2007) 70(2) MLR294; Sales, ‘A Comparison of the Principle of Legality and Section 3 of the Human Rights Act1998’ (2009) 125 LQR 598.

72. This rule stems from a provision of the Charter similar to Article 15.4.2° of the IrishConstitution; s 52(1) of the Constitution Act 1982 states that ‘any law that is inconsistent with theprovisions of the Constitution is, to the extent of the inconsistency, of no force or effect.’

73. In Tétreault-Gadoury v Canada, [1991] 2 SCR 22, the Supreme Court used linguistic severanceto expand employment insurance entitlements which it held to have been unconstitutionallyrestricted to those over 65. The Employment Insurance Act 1971 excluded those over 65 from thegeneral rules set up by the Act, which violated the equality guarantee in s 15 of the Charter. Bysevering the age exception, the scheme was extended to all otherwise qualified people regardlessof age, and the unconstitutionality was remedied. Hogg notes that the Court may have been morewilling to extend the scheme in this way because the legislature had already extended the benefitto people over the age of 65 prospectively, which did not benefit the applicant. La Forest J alsonoted the absence of any argument that the State could not afford to pay for the extension. SeeHogg, Constitutional Law of Canada, (5th edn, Carswell, 2007), para 40–14.


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jurisprudence [AQ: this sentence did not originally make sense. Does this insertionreflect the author’s intention?] allows for the circumvention of legislative intention.

[0.35] In R v Hess; R v Nguyen,74 the Supreme Court of Canada saved a statutory rapeprovision by means of severance. Section 146(1) of the criminal code made it an offencefor a man (over 14 years of age) to engage in sexual intercourse with a girl under the ageof 14. The man commits the offence, the section said, ‘whether or not he believes thatshe is 14 years of age or more.’ The court found that, in eliminating any requirement ofmens rea in respect of the girl’s age, this violated the protections of fundamental justicefound in s 7 of the Charter. A discrete portion of the law disregarded any considerationof belief of the girl’s age. In that instance, Wilson J, writing for the majority of the Court,chose to sever the offending language, despite the fact that this was a significantalteration of the statutory provision.75

[0.36] Irish courts would surely have objected to the severance in Hess as being tooradical a recasting of the legislative regime.76 Frustrating legislative intention will notstop severance from taking place, allowing significant alteration of the law. However,the Canadian court did this only in order to rid it of its unconstitutionality, and to do soin manner that saves as much of the law as possible. Hogg notes that, in Hess, thealternative was to strike down the section entirely, which mean that having sex with agirl of fourteen years would not be an offence at all, even if the man were fully aware ofthe girl’s age.77

Reading In and Problems from Legislative Silence in Canada

[0.37] Irish courts are unwilling to even acknowledge that a failure of legislation toprovide for something can create a constitutional issue with the legislation.78 This was

74. R v Hess; R v Nguyen [1990] 2 SCR 906.75. See also Benner v Canada [1997] 1 SCR 358; Benner v Canada (No 2) [1997] 3 SCR 389. In

Benner, the Supreme Court severed language in order to expand an entitlement to citizenship. Adistinction had been drawn between those who were born abroad to Canadian mothers and thosethat were born abroad to Canadian fathers. This was held to violate the equality clause in s 15.Several phrases from the Act were severed in the second Supreme Court judgment, extending anautomatic right of citizenship to all those born abroad to Canadian parents.

76. The burden of proof provision in Maher v Attorney General [1973] IR 140 is largely analogous toHess, in that it was a clearly articulated and clearly unconstitutional element of the offence. Wecan infer from this that such severance would not be conducted. The CC case [2006] IESC 33,discussed below, and which has facts nearly identical to Hess (Hess was relied on extensively inthat judgment) is not analogous, because the exclusion of a mens rea requirement was not writteninto the law. Severance would have been impossible.

77. Hogg, Constitutional Law of Canada, (5th edn, Carswell, 2007) para 40–13.78. A related problem is that the courts will not invalidate legislation as a remedy if that would result

in no benefit to the plaintiff, and only detriment to those currently served by the legislation. Thisarises most often in the context of equality. See O’B v S [1984] IR 316; Somjee v Minister forJustice [1981] ILRM 324. See Hogan, ‘Constitutional Law – Remedies for Inequality’, (1992) 14DULJ 115 and Doyle, Constitutional Equality Law (Thomson Round Hall, 2004), pp 86–89.

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long thought to be the case,79 and has now been affirmed in Carmody v Minister forJustice.80 The Criminal Law (Legal Aid) Act 1962 did not provide for the defendant tobe represented by counsel as well as a solicitor in a District Court prosecution. TheSupreme Court found that in certain exceptional cases, there was a constitutional rightto have counsel in summary prosecutions. However, there was ‘nothing in the provisionsof the Act of 1962 ... which could be said to prohibit or create an obstacle’81 to suchlegal aid; it was simply not provided for. Therefore,

‘the absence of a right to apply for legal aid to include counsel in appropriate casesmust properly be considered as stemming from a failure of the State to make byone means or another, specific provision for such legal aid rather than from anyprovision, in particular any prohibition, in the Act of 1962.’82

[0.38] Relatedly, Irish Courts will not read in legislative language, which isunsurprising. First, if the problem does not stem from the statute, the statute does notneed to be fixed in this way. Secondly, reading in language is far closer to law-makingthan either or the remedies discussed above, and so clearly falls foul of Article 15.2.1°.The courts will endeavour to provide other remedies where possible, though it may not

be.83

[0.39] Canadian courts have no such reservations. They find that silence or legislativelacunae do constitute constitutional flaws in that statute, and are willing to readlanguage into statutes in order to remedy such defects. This phenomenon is more radicalagain than the most extreme examples of severance,84 because it involves the addition oflanguage. The Court first recognised this remedy in Schacter v Canada.85 Unanimously,the Court agreed that, in principle, words could be ‘added’, or ‘read in’ to solve suchproblems. The Court held that the addition of statutory language would be ‘akin toseverance’86 in curing statutory deficiencies. To deny the remedy of reading in wouldmake the style of drafting a ‘critical factor in the determination of a remedy.’87

79. See Hogan and Whyte, JM Kelly: The Irish Constitution, (4th edn, Tottel, 2004), pp 890–895.80. Carmody v Minister for Justice [2010] 1 ILRM 157, [2009] IESC 71. See Gallagher, ‘The Irish

Constitution—Its Unique Nature And The Relevance Of International Jurisprudence’ (2010) 45Ir Jur (ns) 22 .

81. Carmody v Minister for Justice [2010] 1 ILRM 157 at 184.82. Carmody v Minister for Justice [2010] 1 ILRM 157 at 18483. In Carmody, the court issued a declaration that the rights of the applicant were infringed, and

prohibited his prosecution until his rights were vindicated. See [2010] 1 ILRM 157 at 186. Seealso Gallagher, ‘The Irish Constitution—Its Unique Nature And The Relevance Of InternationalJurisprudence’ (2010) 45 Ir Jur (ns) 22 . This was an adequate remedy in the circumstances, butsuch remedies will not always be possible.

84. See Tétreault-Gadoury v Canada, [1991] 2 SCR 22, where the scheme was expanded, but thewords were not. Exclusions and limitations were severed.

85. Schacter v Canada [1992] 2 SCR 679.86. Schacter v Canada [1992] 2 SCR 679 at 702.87. Schacter v Canada [1992] 2 SCR 679 at 698.


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[0.40] Lamer CJ said that this remedy should only be used in the ‘clearest of cases’,88

and it had to be used in a more restrained fashion than severance.89 The remedy was notavailable in Schacter because it would have been too radical.90 Instead, the Court choseto invalidate the statute but suspend the declaration for a time. The remedy has beenused in subsequent cases.91

Suspended Declarations of Unconstitutionality

[0.41] Canadian courts prefer to deal with constitutionally problematic statues by way ofdouble construction, reading in, or severance. 92 However, when this is not possible, andinvalidation is necessary, Canadian courts have also been willing to suspenddeclarations of invalidity for a period of time. The law will be invalid when that periodelapses. Invented in the Mantioba Language Rights Case,93 where the entire statute bookof Manitoba was invalid for failure to enact bilingual statutes,94 it has become a commonremedial tool in cases involving Charter rights.95 As noted above, it was the remedy

88. Schacter v Canada [1992] 2 SCR 679 at 718.89. He would only commend its use where striking down legislation or severance would not suffice

as a remedy, and where the insertion would not substantially change the cost or nature of themeasure. Moreover, given the nature of the remedy, the insertion of the words should not runcontrary to the legislative objective.

90. The Unemployment Insurance Act had provided more generous federal benefits for adoptiveparents, by granting maternity and paternity benefits to adoptive parents in s 32, but onlymaternity benefits to natural parents in s 30. The Supreme Court held that, in discriminatingagainst natural parents, this was a violation of the s 15 equality guarantee. The exclusion ofnatural parents from paternity benefit was not done by way of any severable clause. The onlyremedy that could be achieved by severance or invalidation was equality through denial ofbenefits to adoptive parents. However, in the instant case, the court did not think that the remedywas appropriate. The reason for special provision for adoptive parents was unknown, andtherefore the remedy could be contrary to the legislative intention, and the increase in cost couldbe substantial. Though keen to acknowledge the possibility of reading in, the court held that to doso here would ‘constitute a substantial intrusion into the legislative domain.’ (Schacter v Canada[1992] 2 SCR 679 at 723).

91. In Vriend v Alberta [1998] 1 SCR 493, the Individual Rights Act of Alberta was challenged forits failure to include sexual orientation as a ground of prohibited discrimination in employment,use of public facilities, and the supply of goods and services. The plaintiff had been dismissedfrom his job as a teacher because of his sexual orientation, and was refused any relief by theAlberta Human Rights Commission. The majority of the court held that this was a violation of s15, and that the appropriate remedy was to read sexual orientation into the grounds of prohibiteddiscrimination. In Miron v Trudel, [1995] 2 SCR 418. the Supreme Court read in new language tothe definition of ‘spouse’ in the Ontario Insurance Act to exclude the common-law spouse of aninsured person who was discriminated against based on her marital status in violation of s 15.Hogg notes that the court’s task was made substantially easier by the fact that the legislature hadamended the statute prospectively after the claimant’s claim had accrued (40–16.1). This meantthat the problem of formulating a new wording was avoided. See also Charkaoui v Canada[2007] 1 SCR 350; R v Sharpe [2001] 1 SCR 45.

92. Lamer CJ in Schacter said that this was the preferred hierarchy of remedies (Schacter v Canada[1992] 2 SCR 679 at 719).

93. Mantioba Language Rights Case [1985] 1 SCR 721.

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chosen in Schacter when reading in was thought inappropriate, and it was usedalongside reading in in Dunmore v Ontario.96 The theory behind suspension is that itgives the legislature a chance to address the problem posed by invalidation in the firstinstance; it can fix the statutory regime, or prepare for the consequences of invalidity.97

[0.42] Irish courts have never expressly endorsed such suspended declarations ofinvalidity, though similar action has been taken in several cases, and there has been somejudicial support for the prospect.98

94. The court granted the laws temporary force by the court’s order to avoid lawlessness in theprovince.

95. See Hogg, Constitutional Law of Canada, (5th edn, Carswell, 2007), paras 40–4–40–10. See alsoR v Swain [1991] 1 SCR 933; R v Bain [1992] 1 SCR 91; M v H [1999] 2 SCR 3; Figueroa vCanada [2003] 1 SCR 912; Health Services and Support-Facilities Subsector BargainingAssociation v British Columbia [2007] 2 SCR 391.

96. In Dunmore v Ontario [2001] 3 SCR 1016, the majority of the Supreme Court affected alinguistic severance that would have extended the full panoply of labour relations rights toagricultural workers that were previously (and unconstitutionally) excluded from thoseentitlement. In order to allow the legislature to amend the regime if it so wished, the declarationwas suspended for a period of 18 months (at [66]–[69]).

97. See Choudhry and Roach, ‘Putting the Past Behind Us?’ (2003) 21 SCLR (2d) 205. In Schacter,Lamer CJ gave three situations in which such a suspended declaration would be apt; first, if theinvalidation posed a danger to the public; second, if it posed a threat to the rule of law; or third ifit would result in the deprivation of benefits to deserving purposes, as with the invalidation ofunderinclusive laws. Choudhry and Roach illustrate in their article that these categories ‘havelargely been ignored’ (at 232). They posit that the best explanation for the use of suspendeddeclarations is in fact a form of dialogue between the legislative and judicial branches. See Hoggand Bushell, ‘The Charter Dialogue Between the Courts and Legislature: (Or Perhaps the Charterof Rights Isn’t Such A Bad Thing After All)’ (1997) 35 Osgoode Hall LJ 75, pp 95–96. Theguidelines were endorses again in Canada v Hislop [2007] 1 SCR 429, but Hogg notes thatshortly afterward, in Health Services and Support-Facilities Subsector Bargaining Association vBritish Columbia [2007] 2 SCR 391, the courts once again went beyond the Schacter guidelines.Hogg, Constitutional Law of Canada, (5th edn, Carswell, 2007), para 40–11.

98. In Blake [1982] IR 117 at 141–2, the Supreme Court advised lower courts to be slow to grantdecrees of possession that would be allowed in the statutory vacuum left by the legislation, andadvised the legislature to fill the vacuum. See Carolan, ‘The relationship between judicialremedies and the separation of powers: collaborative constitutionalism and the suspendeddeclaration of invalidity’, (2011) 46 Ir Jur (ns) 180, and Hogan and Whyte, JM Kelly: The IrishConstitution, (4th edn, Tottel, 2004), pp 893–4. In Carmody, the Supreme Court prohibited theprosecution of the applicant until some mechanism for legal aid was provided, encouraging swiftexecutive or legislative action. See Gallagher, ‘The Irish Constitution—Its Unique Nature AndThe Relevance Of International Jurisprudence’ (2010) 45 Ir Jur (ns) 22. Carolan, at p 182, alsonotes some endorsement of the possibility by Denham J in A v Governor of Arbour Hill [2006]IESC 45 at [162], and Hogan J’s recent use of a similar technique in Kinsella v Governor ofMountjoy Prison [2011] IEHC 235.


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The Limits of Canadian Remedies: Reconstruction

[0.43] We seen that remedies in Canada are potent, but they have limits. In Schacter, theconcept of reading in language was acknowledged but not invoked, as the court couldnot be sure that severance would not cut against legislative intention. Similarly, inrespect of other remedies, the courts will stop short of what they deem ‘reconstruction’of the legislative scheme; that is, when the legislative regime cannot be salvaged withoutchanges that are ‘too profound, too policy-laden and too controversial to be carried outby a court.’99

As-Applied Challenges

[0.44] Finally, and briefly, the idea of an as-applied challenge should be noted, as thisserves as a remedy in the United States100 and, to lesser extent, in Canada.101 As well asthe sort of constitutional challenge with which we are familiar, where the provision ofthe law is invalid, US constitutional law recognises a less drastic ‘as-applied’ challenge.This finds that that the law is invalid as applied to the plaintiff in the case at hand, andonly to that extent. The law may still have numerous constitutional applications, andshould be allowed to continue to apply in those circumstances having been ‘pruned of itsunconstitutional branches’.102 The appropriate remedy for such a challenge is partialinvalidation of the law – invalidation of the law as-applied in those particularcircumstances. The law, therefore, can survive the finding. Invalidation is still availablewhere the law is simply not salvageable.

[0.45] Some object to this sort of challenge as being akin to judicial legislation.103

However, it is a well-entrenched part of American constitutional law, and functions as ahighly effective remedy, which minimizes judicial interference with the legislativeregime. It has not, to my knowledge, been fully argued in Ireland, let alone endorsed.104

99. Hogg, Constitutional Law of Canada (5th edn, Carswell, 2007) para 40–21. As one judgecolourfully put it, the Court might be able to engage in some ‘crude surgery’, but could not go sofar as to perform ‘plastic or reconstructive surgery’ on legislation (Singh v Minister forEmployment and Immigration [1985] 1 SCR 177 at 235, per Beetz J).

100. Dorf, ‘Facial Challenges to State and Federal Statutes,’ 46 Stan L Rev 235 1993–1994; Fallon,‘As-Applied and Facial Challenges and Third Party Standing’, 113 Harv L Rev 1321 1999–2000.

101. In Canada, the remedy of constitutional ‘exclusion’ is perhaps similar to an as-applied challenge,insofar as it excludes particular applications of the law as invalid. See Hogg, Constitutional Lawof Canada (5th edn, Carswell, 2007), paras 40–19–40–21.

102. Tribe, American Constitutional Law (2nd edn, Foundation Press, 1988), p 1029.103. See eg, Alexander ‘There Is No First Amendment Overbreadth (But There Are Vague First

Amendment Doctrines); Prior Restraints Aren’t “Prior”; and “As Applied” Challenges SeekJudicial Statutory Amendments,’ 27 Constitutional Commentary 429 (2011).

104. A similar sort of suggestion may have been put forward by the State in CC v Ireland [2006] IESC33. The Court would not entertain it. This will be discussed below.

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PART III: A CASE FOR BROADER ALTERNATIVE REMEDIES IN IRELAND

[0.46] I believe that Ireland would do well to adopt more expansive remedies. I wish toargue first that broader remedies are not per se excluded by protection of the legislativepower in Article 15.2.1°; that restriction has been read in light of other facets of theseparation of powers, and could accommodate more expansive remedies if it wereshown that the legislature was better served by such a move. I then wish to illustrate thebenefits of broader remedies by drawing on the comparative examples above, and on thebenefits that would accrue if some changes were made in Ireland.

Article 15.2.1° and Broader Remedies

[0.47] Article 15.2.1° places some limit on the alteration to laws that the Irish courtscould legitimately carry out.105 However, the line between what constitutes validinterpretation or remedy and what is invalid law-making is fluid. The prohibition onlaw-making is not self-defining; it must be interpreted, and can be relaxed in view ofother constitutional values and priorities. The mere existence of Article 15.2.1° does notpreclude broader remedies. This could only be true if the interpretation of the provisionwas rigid, and no ‘law-making’ could be done by the courts at all. In light of thejudgment in TD v Minister for Education,106 this argument could be put forward: theseparation of powers in that case was held to be rigid rather than flexible, and an end initself rather than a means to functional government. However, a strict view of the clausecould render even our current remedial alternatives invalid, and cannot of itself settle theargument.

[0.48] If the prohibition on law making were strict, it would mean that no alteration ofthe law would be allowed, as this would be ‘making law’. However, double construction,even in its current, limited form, does alter the law, albeit by interpretation. Addingprocedural guarantees that were not at all apparent on the face of a law alters thelegislative regime; it will operate in a manner different from that which would have beenapparent from the face of the law.107 This is even more apparent in the case of severance;deleting words from a statute is amendment in the truest sense. The law thereafterapplies as if the words in the statute book have been crossed out, just as they would be ifthey had been removed by legislative amendment. The idea that this remedy avoids anykind of law making by not running contrary to legislative intent is a nonsense, as thelegislative intention was to have the words in the statute.

105. Perhaps actually adding words to the law in order to extend its scope, as happened in Vriend[1998] 1 SCR 493, goes so far that it cannot be squared by the language of Article 15, aslegislative language is actually being written by the courts. However, even this interpretation isopen to question.

106. TD v Minister for Education [2001] 4 IR 259.


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[0.49] Each of these remedies involves altering the nature of laws, and so is an instanceof law making, strictly defined. The fact that these remedies are tolerated shows that thisprohibition is not strictly defined, and that it is relaxed to accommodate other priorities.Severance is said to be justified by Article 15.4, though this too is a matter ofinterpretation and degree.108 Double construction is said to be justified by thepresumption of constitutionality, a facet of the separation of powers.109 It is motivated by‘that respect which one great organ of the State owes to another.’110 It is the respect owedto the legislature that means that laws should be interpreted to be constitutional whenpossible rather than having them invalidated.

[0.50] This illustrates that the boundaries of Article 15.2.1° are fluid; they have givenway to allow for alternative remedies. After this, it is only a matter of degree. Theycould give way to more radical remedial options as well; the definition of whatconstitutes such law-making could be relaxed in the interests of the separation ofpowers.

Lessons from Other Jurisdictions

[0.51] As we have seen, other common law jurisdictions have more radical remedies. Itis not that these jurisdictions do not seek to respect the separation of powers, or do notrealise that the there are dangers associated with more powerful remedies. It is ratherthat in striking a balance between these concerns, they have thought it prudent to offerbroader alternative remedies both to vindicate rights and to aid the legislature.

[0.52] In the United Kingdom, which lacks a written constitution and strong formjudicial review, one might expect a more conservative stance on interpretation that couldamount to judicial amendment of laws. However, the approach adopted to s 3 of theHuman Rights Act goes far further than the Irish double construction rule. This has thedual benefits of being better for rights holders,111 and may be better for the legislature.Parliament is not forced to consider each invalid law and remedy each defect in order to

107. The operation of the NAMA Act after Dellway Investments v NAMA [2011] IESC 14 involves theparticipation of the individuals that NAMA did not believe would be part of its operation beforethe judgment in that case. See O’Neill, ‘Fair Procedures – An Inviolable ConstitutionalRequirement?’ (2011) 33 DULJ 319; Kenny, ‘Fair Procedures and Irish Administrative Law:Toward A Constitutional Duty to Act Fairly in Dellway Investments v NAMA’ (2011) 34 DULJ47; McGrath and Shelly, The National Asset Management Agency Act 2009: An Annotation(Round Hall, 2011). It is a similarly significant operation to read down an Oireachtascommittee’s power to convict for contempt, as in Re Haughey [1971] IR 217. Someone readingthat law would surely have thought the power to convict lay with the committee.

108. That provision could be taken to mean that only an invalid section rather than the entire statuteshould be invalided, and allow no severance of particular words whatsoever. That would surely bean interpretation favoured by those who would keep judicial law-making to a minimum.

109. See McDonald v Bord na gCon [1965] IR 217 at 239; Hogan and Whyte, JM Kelly: The IrishConstitution, (4th edn, Tottel, 2004), p 854.

110. Buckley v Attorney General [1950] IR 67 at 80.

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vindicate rights, as it would if the law were declared incompatible, yet is still at liberty torepeal or amend the law in the event that it was dissatisfied by the law as interpreted.

[0.53] Concern for the separation of powers is present in Canada as well. The reason thatthis concern does not hold back alternative remedies is that they are seen to help theseparation of powers more than harm it; to respect and aid the legislature rather thanusurping its power or slighting it. As Hogg notes, the remedies such as radical severanceand reading in are ’a serious intrusion by the courts on the functions of the legislativebranch’. However, the alternative, striking the statute down, “is also very intrusive.”112

Hogg describes Canada’s severance rule as a ‘doctrine of judicial restraint’, whichminimizes the impact of a successful Charter challenge by making sure ‘the court’sintrusion into the legislative process goes no further than necessary to vindicate theCharter right’.113

[0.54] Radical remedies are invoked to avoid the damage to the legislative regime thatcomes from invalidation of laws. Invalidation has become so routine, such a staple itemon the judicial menu, that we tend to forget how intrusive and invasive it is. Saving thelaw, even if that means that it is altered, might respect the legislature more thaninvalidating it outright. It also gives the legislature more options, in that it does not forcethem to act. As Hogg notes, ’[i]t is always open to the competent legislative body toenact a new legislative scheme ... if the legislators are not content with the scheme asamended by the courts’. The legislature ‘retains the last word’.114

Protecting the Legislative Power to the Legislature’s Detriment

[0.55] The Irish courts have focused exclusively on the benefits to the separation ofpowers that accrue from their conservative remedial regime, in not risking usurpation ofthe legislative power. However, they have been blind to the costs of this approach for thelegislature. When the primary remedy of invalidity is still available,115 the courts, in thename of greater respect to the legislature, strike down laws, thus damaging the

111. It is obviously superior for a plaintiff whose rights have been violated to have the violation readout of the law rather than a declaration of compatibility, wherein they will still be subject to thelaw unless and until Parliament decides to change it.

112. Hogg, Constitutional Law of Canada, (5th edn, Carswell, 2007), para 40–17.113. Hogg, Constitutional Law of Canada, (5th edn, Carswell, 2007), para 40–12. See further Hogg,

‘Judicial Amendment of Statutes to Conform to the Charter of Rights’ in Baudoin (ed) MélangesJean Beetz, (Thémis, 1995).

114. Hogg, Constitutional Law of Canada, (5th edn, Carswell, 2007), para 40–18. Cf Vriend v Alberta[1998] 1 SCR 493 at 557, where Iacobucci J relied on the idea of dialogue, and the legislaturebeing empowered to respond, when justifying reading in language in that case – this is not theend of the legislative process, he said. See Hogg, Bushell Thornton, and Wright, ‘CharterDialogue Revisited–Or Much Ado About Metaphors’, (2007) 42(1) Osgoode Hall LJ 1, p 9.

115. Obviously, making this remedy unavailable has clear benefits to the legislature, albeit at theexpense of rights holders. Finding unconstitutional legislative silence not to be a constitutionalissue with the legislation is an example of this.


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legislative framework, and leaving the legislature in the unenviable position of cleaningup the mess that results. Rather than salvaging as much of the legislative regime aspossible, and leaving it to the legislature to decide to act or not to act, the courts seem tothink it is more respectful to tear the legislative regime down, forcing the legislature toact. Attempting to aid the legislature, the courts have hindered it; attempting to respectlegislative power, the courts have eschewed remedies that would show more respect forthe legislative power.

[0.56] There are several benefits to broader remedies. First, they protect rights just aswell as invalidation does. This is a rare instance where the functions and roles of theorgans of government can be preserved without sacrificing the protection of rights.

[0.57] Secondly, it would be more modest, and would afford more respect to thelegislature. Irish courts have long accepted the premise that it is more respectful for thelegislature for laws to be saved whenever possible: the idea underlying both severanceand double construction is that the courts should save as many laws as they can frominvalidation. This minimises judicial impact on the legislative regime. But the courtshave not saved as many laws as possible; they have decided only to save those laws thatcan be saved with minimal alteration to the legislative regime.

[0.58] It might seem to increase judicial power at the expense of the legislative power toallow judges to interpret legislation more radically, or sever words even if the intentionof the legislature was undermined. However, this ignores how radical and invasive it is toinvalidate a provision in its entirety. Even though the legislation is altered, aninterpretative or severance remedy involves minimal interference, because thelegislative scheme can survive. It is then the legislature’s choice to enact a new scheme,or leave the old scheme to apply in its constitutionally acceptable form. It thereforelessens the severity of judicial intervention, and shows respect to the legislature bypreserving its legislation.

[0.59] Thirdly, introducing broader remedies would mean fewer statutes would have tobe invalidated. This would minimise the problematic consequences of invalidity, whichIrish courts have struggled with in recent years.116 In A v Governor of Arbour Hill,117 theSupreme Court limited the consequences of declarations of invalidity. Mr A, who hadbeen convicted under a recently invalidated criminal law, and whose conviction bore norelation to the reason for the law’s invalidity, was seeking release. He argued that sincehis conviction was predicated on a statute that, having been invalidated, was void abinitio, his continued detention was unlawful. The Supreme Court held this was not thecase, and that even though the law was void ab initio, not all acts done pursuant to itwould be invalided. 118 However, the A case would never have come about were it not for

116. Broader remedies would mean that fewer laws would be invalided, and therefore the likelihood ofa case like A v Governor of Arbour Hill [2006] IESC 45 coming about would be reduced. It doesnot eliminate the problem, so the questions addressed in A are still relevant.

117. A v Governor of Arbour Hill [2006] IESC 45.

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the refusal of the court which invalidated the statute to adopt an alternative remedyinstead of sweeping invalidation.

[0.60] The case that led to A was CC v Ireland,119 where the Supreme Court invalidated s1(1) of the Criminal Law Amendment Act 1935, as it did not allow a person accused ofstatutory rape of a girl under 15 to raise a defence of reasonable mistake as to age.

[0.61] In the first judgment in the case, ruling on the interpretation of the statute, themajority of the Supreme Court had held that the Act could not be read to allow a defenceof reasonable mistake, and that it created an offence without mens rea.120 This was thefirst juncture at which an alternative remedy could have been adopted, as doubleconstruction could have been used to find that there was such a defence, even if that was

not the interpretation the Court would have preferred absent a constitutional problem. 121

One judge thought that such a defence was available even without relying on doubleconstruction.122 Adopting such an interpretation would have vindicated the rights of CC,and prevented invalidity and its associated problems. The effectiveness of this remedywas show in the later case of JP v DPP,123 where double construction was used to findthat s 3 of the Criminal Law (Sexual Offences) Act 1993 did not create a strict liabilityoffence and did require mens rea.

[0.62] Severance would not have been possible, because unlike Hess, there was no textin the section that excluded a defence of this sort.124 However, there was another chanceto invoke an alternative remedy: counsel for the State had suggested that, if the Courtfound that the law was unconstitutional, the appropriate remedy was not outright

118. For an account of this saga, see Fanning, ‘Hard Case; Bad Law? The Supreme Court Decision inA v The Governor of Arbour Hill Prison’ (2005) 40 Ir Jur (ns) 188. See also Murphy, ‘Theproblem of unconstitutionality and retroactivity in criminal law: Ireland, the US and Canadacompared’, (2007) 42 Ir Jur (ns) 63.

119. CC v Ireland [2006] IESC 33.120. CC v Ireland [2005] IESC 48.121. It might be that a curious procedural quirk of this case – with the constitutional challenge

following a previous Supreme Court judgment about interpretation – means that at the time ofthe invalidation, the interpretation issue has been resolved. However, this was the SupremeCourt’s doing: the constitutional point was part of the initial application for judicial review;having decided the interpretation point, the Supreme Court knew that the constitutionality of thelegislation was being questioned. Secondly, the Supreme Court in the latter hearing would surelyhave been able to invoke double construction, even though this would contradict the previousjudgment, when it became apparent that the law would be invalided. However, they chose not todo so. If the court felt that it was not at liberty to invoke the rule, this highlights the need to recastthe rule as a remedial rather than an interpretative doctrine.

122. CC v Ireland [2005] IESC 48 per Denham J.123. P v DPP [2008] IEHC 426.124. The section read: ‘Any person who unlawfully and carnally knows any girl under the age of

fifteen years shall be guilty of a felony, and shall be liable on conviction thereof to penalservitude for life or for any term not less than three years or to imprisonment for any term notexceeding two years.’


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invalidation, but partial invalidity, that would invalidate the law only insofar as it did notallow the defence.125 Hardiman J rejected this option, and invalidated the law:

‘The difficulty with the form of limitation on a declaration to that effect thatcounsel for the respondents proposes is that it appears to involve the court in aprocess akin to legislation. Counsel for the respondents posits a “reasonablebelief ” defence on the basis that the existence of such a defence would save thesection from unconstitutionality. But so too would a defence which left thedefendant’s knowledge of age to be proved by the prosecution as part of the mensrea of the offence, very likely a defence based on presumptions and perhaps otherforms of defence. It might, for example, be thought desirable to have a law on thissubject along the lines proposed by the Law Reform Commission in 1990. But forpresent purposes it is sufficient to say that there is, obviously, more than one formof statutory rape provision which would pass constitutional muster, and it does notappear to be appropriate for the court, as opposed to the legislature, to choosebetween them.’126

[0.63] This relief was declined for the legislature’s sake, so that it, rather than the court,could choose the precise outline of how the law in this area would operate in future. Thisis not a zero-sum game; the Court could have granted the remedy sought by the State,and the legislature would have been free to enact a different regime any time it chose.Nothing would have inhibited it from doing so. If no action was taken, that would seemmore like legislative acquiescence in the solution reached by the court rather than somekind of judicial tyranny, where judges rather than legislators were choosing the laws thatgovern us.

[0.64] Moreover, if the total invalidation of the law was done as a sort of favour to thelegislature, it is hard to think of a favour that would be less welcome. The legislature isleft with a gaping hole in the statute book, which also threatened to release peopleconvicted of raping children whose circumstances gave rise to no suggestion that areasonable mistake defence would have availed them. This mess would have been left tothe legislature to resolve, if any resolution were possible, had the court not intervened inthe A case. One imagines that the court’s refusal to risk usurpation of the legislativepower in CC, motivated by modesty and respect, might have seemed to the legislature ofthe day to be a forbearance that they could have lived without.

[0.65] Cases such as A are exceptional and rare, though they are far from unique, asillustrated by the recent case of DPP v Damache127 and its fallout.128 We shouldendeavour to avoid these cases coming about whenever possible by saving the impugnedlegislation [AQ: the end of this sentence was missing. Is this ending correct?]

125. This seems to me to be an as-applied invalidity argument, perhaps the only one made before theIrish courts to date, or at least the only one to receive significant consideration (CC v Ireland[2006] IESC 33 at [66]–[68]).

126. CC v Ireland [2006] IESC 33 at [69].

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[0.66] Despite increased awareness in the wake of A, Irish courts fail to see how radicalit is to invalidate legislation. To the extent that this is recognised, it is probably morelikely to make judges less willing to hold laws unconstitutional as to encourage them tofashion new remedies.129 It will often be less invasive, better for legislature, and moremodest to alter the legislation than to strike it down. The prohibition on judicial law-making should give way further; it should be acceptable to invoke more radical remediesin order to save as many laws as possible; in order to do less damage to the legislativefabric; and in order to better respect the legislature. Far from usurping the legislativepower, this would preserve and respect it.

CONCLUSION: BRIEF PROPOSALS FOR BROADER REMEDIES

[0.67] The goal of this paper is to start a discussion about broader remedial powersrather than to offer precise recommendations, so I will confine myself to briefobservations. I believe that the Irish courts should be willing to engage in constructiveinterpretation that is at least as strong as their counterparts in the United Kingdom,allowing it to be used in cases such as Re Haughey,130 CC,131 and Kelly v Minister for theEnvironment.132 Departing from the plain meaning of words should be allowed, and the

127. DPP v Damache [2012] IESC 11. In the Damache case, Denham CJ invalidated s 29(1) of theOffences Against the State Act, which authorised a Superintendent of An Garda Síochána toissue search warrants that could include the search of a dwelling. This violated the protection ofthe dwelling, which is inviolable pursuant to Article 40.5, as the Garda superintendent was not anindependent person, unconnected with the investigation. As with CC, this provision had beenused in this fashion for decades, raising the question of how its invalidation affected both pastand pending prosecutions.

128. Since Damache, there have been no fewer than four subsequent appeals from those convictedpursuant to s 29 searches: DPP v Kavanagh [2012] IECCA 65; DPP v Cunningham [2012]IECCA 64; DPP v O’Brien [2012] IECCA 68; DPP v Hughes [2012] IECCA 69. In Kavanaghand Cunningham, appeals were allowed on the basis of the invalidity of s 29 searches where thefollowing two criteria were met: where the applicant had raised the issue of the constitutionalityof s 29 in the course of the proceedings against him; and where the proceedings were not alreadyfinalized. These criteria were imposed on the basis of A, amongst others. In O’Brien, an arrestwhich took place pursuant to entry into a dwelling under s 30 was also held to be invalid. InHughes, a request to extend time to appeal was refused where the applicant had pleaded guilty tothe offence.

129. Walsh J said that the consequences of unconstitutionality should not affect judges deciding uponthe constitutionality of laws in De Burca v Attorney General [1976] IR 38. However, the risk ofthis happening was acknowledged by Geoghegan J in A, where he very honestly noted that hadthe Supreme Court in that case not limited the consequences of a declaration ofunconstitutionality, ‘there would be a grave danger that judges considering the constitutionalityor otherwise of enactments would be consciously or unconsciously affected by theconsequences.’ (A v Governor of Arbour Hill Prison [AQ: is name correct] [2006] 4 IR 88 at203).

130. Re Haughey [1971] IR 217.131. CC v Ireland [2006] IESC 33.132. Kelly v Minister for the Environment [2002] 4 IR 191.


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fact that the legislature did not intend that the law would be so interpreted should not barthis remedy absolutely.133 Courts should focus on this rule as a remedy, not merely a ruleof interpretation.134 It should be the primary constitutional remedy, as it is in the UnitedKingdom, and only where it fails should laws be invalidated.

[0.68] Similarly, I believe that severance should be possible in more circumstances; itshould be possible in cases similar to Hess135 and Maher.136 The provision obviouslymust make sense and be applicable after severance, but not altering the intention of theOireachtas seems to be a nonsensical limitation, as any alteration by severance will alterwhat the Oirecahtas intended. Again, some limits can be put in place, such as notincurring cost implications,137 or not severing to the extent that it ‘reconstructs’ the law.Even with these limits, it would be useful in far more cases than it in its current form.

[0.69] I believe that as-applied challenges might be a useful innovation in Ireland,perhaps even more effective than the expansion of double construction and severancesuggested here. However, it is also a radical proposition, changing fundamentally thenotion of what a constitutional challenge is, with effects that go beyond merelyremedies.138 Such a proposition requires detailed arguments about all of its possibleconsequences. I hope to pursue this possibility in detail elsewhere.

[0.70] As regards suspension of declarations of invalidity, these can ameliorate theproblems of invalidation when such a remedy is required. Eoin Carolan has recentlymade a strong case for their usefulness, and offered thoughtful reflection on theirpossible negative consequences. 139 There is little I can add to it here. The SupremeCourt’s approach in Blake and Carmody had like effect to suspended declarations. Thecourts should formally embrace this doctrine.140

[0.71] Where problems arise from legislative silence, and rights can only be protected byradical remedies such as reading in, the Irish courts deny that this creates a

133. Some restraint, such as the ‘fundamental feature’ doctrine outlined in Ghaidan and applied inWilson, might be appropriate.

134. See [AQ: fn 38] note 38 above.135. R v Hess; R v Nguyen [1990] 2 SCR 906.136. Maher v Attorney General [1973] IR 140.137. This limitation is already extant; see Greene v Minister for Agriculture [1990] 2 IR 17.138. It would also have the effect of altering our rules on standing, making way for challenges to the

breath of the law that would cut against the jus tertii rule. See Kenny, ‘A Dormant Doctrine ofOverbreadth: Abstract Review and Ius Tertii in Irish Proportionality Analysis’, (2010) 32 DULJ24. It could even have effects on constitutional issues in Administrative Law.

139. Carolan, ‘The relationship between judicial remedies and the separation of powers: collaborativeconstitutionalism and the suspended declaration of invalidity’, (2011) 46 Ir Jur (ns) 180.

140. This remedy would be particularly useful for those cases where an inequality problem is apparenton the face of the statute, but striking the regime down would only disadvantage others ratherthan aid the claimant, which the Schacter court described as ‘equality with a vengeance’, andwhich the Irish courts have refused to tackle by means of invalidation. Schacter v Canada [1992]2 SCR 679 at 702. See Somjee v Minister for Justice [1981] ILRM 324.

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constitutional problem with the legislation rather than adopt such a remedy.141 Theremay be compelling arguments that such laws should be invalidated. If that were true,then arguments for reading in could be made on the same lines as the other remediesoutlined here, as that remedy would save legislation otherwise doomed to invalidity.However, these arguments must be saved for another time, as they would require areassessment of the relationship between rights and the separation of powers, givingmore power to the judiciary. The other changes suggested here are premised onaffording greater respect to the legislature, rather than any net transfer of power to thecourts.

[0.72] The combined effect of a broader double construction rule and a broaderseverance remedy would be significant. If constitutional invalidity arose from particularlanguage, as in Hess, stronger severance would often resolve the issue. If the invaliditydoes not arise from particular language, as in CC, stronger double construction wouldoften resolve it. Far more statutes would be saved using these remedies, and invalidationwould be far less common, reserved only for those cases where the law is unsalvageable.

[0.73] I believe that the separation of powers conceived of in the Irish Constitution canaccommodate the sort of remedies that I have suggested here. If this is not the case,however, then our conception of the separation of powers should change, because wehave lost the wood for the trees. If our separation of powers, after the judgments of theSupreme Court in TD, is insufficiently flexible to allow a court to make simply remedialchanges to statutes, readily accepted by other common law jurisdictions, that would infact afford more respect to the legislature, then we have given in to the most rigidformalism, and a conception of the separation of powers that does not impose thesecounterproductive restraints should be adopted.

141. Carmody v Minister for Justice [2009] IESC 71, [2010] 1 ILRM 157. As noted above at [AQ: fn83] note 83 the Court will, where possible, fashion another remedy, but this may not always bepossible.


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