Last week saw the much-anticipated return before the Supreme Court of Ireland of the proceedings in NHV v. Minister for Justice and Equality. At the hearing on Thursday, the Court provided important clarification about a recent innovation in Irish remedial practice: its earlier endorsement of (something like) a suspended declaration of invalidity.

Background

At the end of last May, the Court had found that an absolute prohibition on the applicant in the proceedings from entering employment pending the final determination of his application for refugee status was, in principle, unconstitutional. This was a significant ruling on the constitutional right to earn a livelihood; and, of course, for persons currently seeking refugee status.

In addition, the decision was constitutionally significant because of the unusual and – in Irish terms at least – unprecedented remedy ordered by the Court. As the Court explained it:

[S]ince this [unconstitutional] situation arises because of the intersection of a number of statutory provisions, and could arguably be met by alteration of some one or other of them, and since that is first and foremost a matter for executive and legislative judgement, I would adjourn consideration of the order the Court should make for a period of six months and invite the parties to make submissions on the form of the order in the light of circumstances then obtaining.

This was immediately identified by Irish constitutional experts as a novel and important development: a ‘promising “dialogue-oriented” departure in Irish constitutional law’ which bore considerable resemblance to the suspended declaration of invalidity pioneered in Canada and expanded elsewhere.

The possibility that an Irish court might consider a suspended declaration had been canvassed in Irish constitutional circles before, most prominently by the former Chief Justice, Mrs. Justice Susan Denham in her decision in A v Governor of Arbour Hill.  It should be noted though that the approach adopted in NHV differed in some respects from a suspended declaration. Most obviously, the Court did not expressly commit itself to making a declaration of invalidity at a later date. Rather, it reserved its position on the remedy to be ordered for six months to allow it to consider the submissions of the parties on the circumstances “then obtaining”.

The implications of NHV: Part 1

The relatively spare reasoning of the Court on this issue led to uncertainty about its implications for constitutional practice in Ireland.

First of all, it was not clear when, or on what basis, a future court should consider exercising this new jurisdiction. Was the decision to refrain from striking down the section based on some factor peculiar to this case, or did it signal a more fundamental shift by the courts to remedies that could be seen as less confrontational (or more deferential; or more dialogical)?   Was the NHV remedy to be the exception (as the Schachter Court in Canada originally explained it) or the norm (as has actually been the case)? That the Supreme Court adjourned another case for submission on the appropriate remedy shortly after NHV offered support to the latter view.

Secondly, the fact that NHV had been granted asylum shortly before the hearing meant that the Court did not have to consider the implications for the applicant of permitting an unconstitutional situation to continue. Judicial tolerance of unconstitutionality does, however, raise concerns under the text of Article 15. 4. 2 (Every law enacted by the Oireachtas which is in any respect repugnant to this Constitution or to any provision thereof, shall, but to the extent only of such repugnancy, be invalid) and, more generally, for the rule of law.

Thirdly, the decision was also unclear as to the nature of the submissions which could or should be made by the parties after six months. From the point of view of the long-term institutional dynamics between the courts and the legislature, this was perhaps the most significant issue. Inter-institutional engagement on the legislative response to the ruling would seem highly questionable from a traditional separation of powers perspective. On the other hand, some kind of engagement might be capable of justification under a dialogue model of legislative-judicial relations.

NHV: Part 2

After a six-month hiatus, the matter returned before the Supreme Court on Thursday last. Counsel on behalf of the State requested that the Court defer the matter for a further six months in light of the complexity of the proposed response. It was argued that an immediate declaration that the prohibition was invalid as a breach of the right to earn a livelihood would lead to a “flood” of applications seeking permission to work.

In response, the Court indicated that it would make a formal declaration of invalidity on February 9^th next.

Notably, the Chief Justice stated that it did not envisage that there would be any further hearing on the matter or engaging with the parties any further. In particular, he observed that the point of the deferral was to allow the legislature to decide on its response but the court had no role in this, and did not want to involve itself in monitoring the speed of the response.

More generally, the Chief Justice also highlighted the “exceptional” nature of the remedy, and “strongly emphasise[d]” that the normal response to a finding of unconstitutional was that a court should immediately declare it to be invalid. The Court had not yet considered the parameters of when to depart from the normal rule but any such departure would be exceptional.

The implications of NHV: Part 2

While the legal principles governing the availability of this new remedy remain – as the Court noted – undetermined, the comments of the Chief Justice do go some way towards clarifying at least some of the issues raised by the decision last May. The indication from last Thursday is that the Court is likely to adopt a cautious approach to this new departure. The Chief Justice’s emphasis on the exceptional nature of the jurisdiction and the absolute unwillingness of the Court to monitor or scrutinise the legislative response represents a considerably less radical approach than some readings of the original ruling would have allowed.

Canadian experience suggests that there is a long-term question over whether it remains an exception or becomes, over time, almost routine. At present, however, the Court seems circumspect about moving towards more ‘dialogical’ forms of engagement with the legislative branch. Given the popularity of dialogue in academic and (some) judicial writings, this may be seen by some as an undue and orthodox timidity. However, as the request to the Court to prolong an unconstitutional position shows, a degree of caution about dialogue may be no bad thing.

Eoin Carolan is Senior Lecturer at the Sutherland School of Law, University College Dublin and Ireland Correspondent for the UKCLA Blog.

(Suggested citation: E. Carolan, ‘Suspended Declarations of Invalidity in Ireland?: The Story So Far’, U.K. Const. L. Blog (6th Dec. 2017) (available at https://ukconstitutionallaw.org/))