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Remedial Innovation, Constitutional Culture, and the Supreme Court at a

Crossroads
Dr David Kenny*
Eighty years is a long time, even in the lifespan of written constitutions that are designed to
stand the test of time. But constitutions exist not merely as words on a page or as static
political charters, espousing the rhetoric of our past. Constitutions are made real by lived
experiences, given life and reality by the political and legal community that gives them force
and authority through their acquiescence; that gives them meaning in their acts and
statements; that changes them, formally and informally, so that they can continue to fulfil
their symbolic and governmental function.1

It is my impression that we are at a moment in our constitutional law and culture that is
interesting and unusual.2 As we reach this eightieth anniversary of the Constitution’s coming
into force, there is some change in our constitutional culture that suggests that – for the first
time in a long time – some old ideas are being rethought and some new paradigms are being
considered in the highest ranks of the judiciary. With this change in view but not yet in focus,
it feels as if we are at a crossroads; that we have the sense of a change in the offing, but we
do not at this juncture know if the change might be modest, and in hindsight be of little note,
or if it could be the start of something more.

In this article, I discuss an issue that might be most emblematic of this zeitgeist. The Supreme
Court has, in several cases in the past year, signalled that it is ready to take a new departure
in the area of constitutional remedies, taking first steps towards embracing a new and
innovative approach to the way we deal with unconstitutionality. However, the scope and
exact nature of this development is unclear and, there are still many questions about its
meaning, its legitimacy, its consequences.

*Assistant Professor of Law, Trinity College Dublin.

1
See David Kenny, “Merit, Diversity and Interpretive Communities: the (non-party politics) of judicial
appointment” in Laura Cahilane, James Gallen and Tom Hickey (eds.) Judges, Politics, and the Irish Constitution
(Manchester University Press, 2017).
2
See also Conor O’Mahony

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In this article, I wish to examine what this development might mean, and what this might tell
us about the future of our constitutional law. In Part I, I assess the current remedial approach,
and the case for alternatives. In Part II, I discuss recent Supreme Court developments in this
area, and suggest what they might mean. In Part III, I consider the most serious challenges
that might be made to this approach. In conclusion, I discuss what this remedial development
might tell us about our changing constitutional culture, and the uncertainty that this creates
about the immediate future direction of constitutional law in Ireland as we enter its ninth
decade.

Part I: Remedies in Ireland and Possible Alternatives

Understanding recent developments requires a brief description of the approach that has
long prevailed in Ireland. In Ireland, the primary remedy for unconstitutionality is for the law
to be declared unconstitutional and thus invalid, famously described as a “judicial death
certificate” for a law.3 This remedy is provided for in 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.”4 This is, overwhelmingly,
the most common remedy for a constitutional flaw in legislation. Two other remedies that
avoid invalidity – the double construction rule, interpreting laws as constitutional, and
linguistic severance, which excises only the unconstitutional language – are highly limited.5
The courts have held that using these remedies more aggressively would violate the
separation of powers, interfering with the legislature’s function to make laws. 6 The courts’
role is to invalidate constitutionally repugnant laws, not to fix laws or replace them.

3
Henchy J in Murphy v Attorney General [1982] IR 241, 307.
4
Murphy v Ireland held that such declarations are ab initio, not simply de futuro: since unconstitutional laws
were ultra vires the legislature, they could never be said to have been valid. ibid 309. However, the courts
found limits on the retrospective effectives of such a finding in Murphy and to an even greater extent n A v
Governor of Arbour Hill [2006] IESC 45, [2006] 4 IR 88.
5
Double construction can only be used in cases where two equally plausible interpretations of the law are
open. See McDonald v Bord nag Con [1965] IR 217, 239. Severance is only available if the unconstitutionality is
caused by and confined to a particular set of words, and if deleting that set of words does not interfere with
the intention of the legislature. See Maher v Attorney General [1973] IR 140, 147.
6
See David Kenny, “The Separation of Powers and Remedies: The Legislative Power and Remedies for
Unconstitutional Legislation in Comparative Perspective” in Eoin Carolan (ed) The Irish Constitution:
Perspectives and Prospects (Bloomsbury Professional, 2013) 206.

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The chief consequence of this is that there is no way to avoid the extreme fallout that
sometimes accompanies even prospective declarations of invalidity. Laws will be entirely
invalid in all their applications going forward, and in all applications not yet finalised and
completed. For example, the Court of Appeal judgment in Bederev v Ireland7 invalidated s 2(1)
of the Misuse of Drugs Act 1977 for lack of principles and policies. This had the effect of
rendering a variety of drugs which had been banned under the section – including ecstasy,
methamphetamine, and magic mushrooms – temporarily legal. There are other examples.8
Righting constitutional wrongs often causes substantial disruption: prosecutions will be
abandoned; taxes will go uncollected; drugs will be decriminalised.

In recent years, academics have criticised the Irish approach as unduly narrow and not strictly
necessitated by the separation of powers.9 By saving statutes and limiting disruption to the
legislative framework, the courts would arguably be more respectful of the legislative power
than when they invalidate laws at great cost to the statutory rule of law. Moreover, it has
been argued by academics10 and judges (writing judicially and extrajudicially1112) that if the
courts do not have the power to offer other remedies, this will influence them – consciously
or unconsciously – to not recognise constitutional problems for fear of the consequences.
New remedial tools could be better for the State by resulting in less drastic results when laws
are found to be unconstitutional; and, if it could persuade courts to find unconstitutionality
when otherwise they might not, this could be better for plaintiffs as well.

7
[2015] IECA 38. This was ultimately overturned by the Supreme Court; [2016] IESC 34.
8
See for example fallout from Damache v DPP [2012] IESC 11. In Moore v DPP [2016] IEHC 244 parts of s 99 of
the Criminal Justice Act 2006 were invalidated, leaving a legislative gap on judicial reactivation of suspended
sentences.
9
See Eoin Carolan, “The relationship between judicial remedies and the separation of powers: collaborative
constitutionalism and the suspended declaration of invalidity,” (2011) 46 Ir. Jur. (ns) 180; Kenny (n 6); David
Kenny, “Grounding Constitutional Remedies in Reality: the Case for As-Applied Constitutional Challenges in
Ireland” (2014) 35 DULJ 53, 59.
10
Kenny (n 6); Kenny (n 9). Cf comments in passing in Gerard Hogan, David Kenny and Rachael Walsh “An
Anthology of Unconstitutionality” (2015) 54(2) Irish Jurist 1.
11
See Geoghegan J in A (n 4) [291]; FX v Central Mental Hospital [2012] IEHC 272, [21]; Gerard Hogan,
“Decalaration of Incompatibility, Inapplicability, and Invalidity: Rights, Remedies and the Aftermath” in Keirnan
Bradley et al (eds) Of Courts and Constitutions: Liber Amicorum in Honour of Niall Fennelly (Hart, 2014).
12
Hogan

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While arguments have been made for other remedies, such as broader severance and double
construction and as-applied constitutional challenges,13 suspended declarations of invalidity
have been the leading candidate for reform, attracting some academic14 and judicial
approval.15 This remedy is associated with the Supreme Court of Canada, where it is now
arguably the primary constitutional remedy,16 preferred in many cases over invalidity
simpliciter. With a suspended declaration, a law is invalidated, but that invalidation only takes
effect after a period of suspension, often six months or one year. This means that the law will
ultimately cease to apply, but in the meantime, the measure can continue in force, thus
avoiding the disruption that invalidity produces, and allowing the legislature an opportunity
to prepare for invalidity and put in place alternative regimes.17 It might choose to repeal the
measure, to amend it, to replace it, or to otherwise prepare for its invalidation.

The suspended declaration was said to be a limited remedy, not to be used in all or most
cases. In Schacter v Canada, Lamer CJ suggested three situations where a suspended
declaration would be used: where immediate invalidation posed a danger to the public;
where it would threaten the rule of law; and where it would deprive deserving individuals of
benefits to which they were entitled, such as where a law was invalidated for being
underinclusive and depriving others of those benefits.18 However, Choudhry and Roach have
illustrated that these limitations “have largely been ignored.”19 Ultimately, Leckey notes that

13
See Kenny (n 6); Kenny (n 9).
14
See Carolan (n 9), Kenny (n 6).
15
In A (n 4) 153-154 Denham J said “the issue of additional remedies in relation to the application of such a
declaration, for example the suspension of an application of a declaration of invalidity, could be raised in our
courts.”
16
Robert Leckey, “Suspended Declarations of Invalidity and the Rule of Law” U.K. Constitutional Law Blog (12th
March 2014) (available at http://ukconstitutionallaw.org/2014/03/12/robert-leckey-suspended-declarations-
of-invalidity-and-and-the-rule-of-law/).
17
See Sujit Choudhry and Kent Roach “Putting the Past Behind Us?” (2003) SCLR (2d) 205. This was first done
in the landmark Manitoba Language Rights Case [1985] 1 SCR 721 where almost every law in the province of
Manitoba was invalidated for failure to enact laws in the constitutionally-required bilingual fashion. See also R
v Swain [1991] 1 SCR 933; R v Bain [1992] 1 SCR 91; M v H [1999] 2 SCR 3; Figueroa v Canada [2003] 1 SCR 912.
18
Schacter v Canada [1992] 2 SCR 679 at 715-716.
19
See Choudhry and Roach (n 17) at 232 The Schacter guidelines were later restated and endorsed by the
Supreme Court (Canada v Hislop [2007] 1 SCR 429) but shortly afterwards they were again exceeded (Health
Services and Support-Facilities Subsector Bargaining Association v British Columbia [2007] 2 SCR 391).

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the idea of this remedy being unusual and exigent is long gone, and the suspended declaration
is now the default.20

Suspended declarations came to be seen as an instantiation of the famed “dialogue” of

Canadian constitutional law: a mediation between the courts and the legislative branches,
each using their expertise in the solving of constitutional problems, rather than creating an
adversarial relationship between the them.21 It is highly debatable whether dialogue (or any
similar metaphor, such as “collaboration”) 22 is an enlightening way to think about these
issues. I have my doubts, believing these terms to be no more than new rhetorical weapons
to remake familiar arguments in the long running fight about the legitimacy of judicial review.
Ultimately the metaphors are less important than the reality of the process, and whether it is
good for the lived reality of the separation of powers. I think that, on balance, it is. It allows
the legislature time to adapt and react, avoiding the very severe consequence of immediate
invalidity and the peril of rushed, emergency legislative response, which benefits the
legislative power, and it enables the judiciary to fulfil its role in constitutional review in a
manner that is somewhat less results-oriented.

For example, suspension was invoked in Carter v Canada, when the Supreme Court
invalidated the Canadian law against assisted dying.23 In invalidating the measure, the
Supreme Court of Canada suspended the declaration of invalidity for one year to allow a
legislative response to the significant gap in the criminal code created by the invalidation.24
This period was later extended for a further four months in Carter v Canada No 2.25 Though
the ultimate replacement measure has proven controversial, there can be little doubt that it

20
Leckey, (n 16). Cf Robert Leckey, “Remedial Practice Beyond Constitutional Text” (2016) 64 Am. J. Comp. L. 1;
Roberty Leckey, ‘The Harms of Remedial Discretion (2016) 14 (3) International Journal of Constitutional Law
584.
21
See Peter Hogg and Alison Bushell, “The Charter Dialogue Between the Courts and Legislature: (Or Perhaps
the Charter of Rights Isn’t Such a Bad Thing After All)” (1997) 35 Osgoode Hall LJ 75 at 95-96. Cf Peter Hogg,
Alison Bushell Thornton, and Wade Wright, “Charter Dialogue Revisited: Or “Much Ado About Metaphors”
(2007) 45(1) Osgoode Hall LJ 1.
22
See, for critiques of dialogue and a case for collaboration, Aileen Kavanagh, “The Lure and the Limits of
Dialogue” (2016) University of Toronto Law Journal 83; Eoin Carolan, “Dialogue isn’t working: the case for
collaboration as a model of legislative/judicial relations” (2016) 36 Legal Studies 209.
23
Carter v Canada 2015 SCC 5.
24
ibid [128].
25
Cater v Canada No 2 2016 SCC 4.

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was a more careful and thoughtful response than that which would have ensued if, at a stroke,
the law against assisted dying were invalidated, leaving no law in place. Moreover, it is hard
to imagine a court being willing to invalidate a law of this sort if it would have the effect of
immediately legalising assisted dying without limits or safeguards, even if they felt the law to
be constitutionally problematic. It seems, in many cases, to allow each branch of government
to do their job more effectively than with more radical forms of invalidity, whether this
process is dialogic, collaborative, or neither.

Part II: New Remedial Developments in the Supreme Court

The NHV and PC cases
Two recent Supreme Court cases suggest a new departure in constitutional remedies that
might resemble suspended declarations of invalidity. In NHV v Minister for Justice,26 the
applicant arrived in the State from Burma in July 2008 and sought refugee status. For many
years, while awaiting final determination of his claim, he resided in a Direct Provision facility
in County Monaghan, receiving his allowance of €19 per week. In 2013, he was offered
employment in the Direct Provision facility. However, s 9(4) of the Refugee Act 1996 provided
that asylum seekers could not seek or enter employment before their application was finally
determined. (This section has been largely repealed, but was replaced by an almost identical
provision in the International Protection Act 2015.) NHV applied to the Minister for
permission to take up this employment, but the Minister refused, saying that the Act
prohibited it and the Minister had no power to permit it. NHV challenged the Minister’s
decision on various grounds, including a claim that the statutory ban violated his
constitutional rights. He was unsuccessful in the High Court and in the Court of Appeal, with
Hogan J dissenting in his favour.27 The Supreme Court granted leave to appeal.28

O’Donnell J, for a unanimous Supreme Court held that the right to seek work (rather than an
affirmative right to employment) was a constitutionally protected right and was infringed by

26
NHV v Minister for Justice and Equality [2017] IESC 35. The Supreme Court judgment is reported in some
places a “NVH”.
27
NHV v Minister for Justice and Equality [2016] IECA 86.
28
NHV v Minister for Justice and Equality [2016] IESCDET 51.

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the absolute statutory prohibition.29 While acknowledging the State’s entitlement to restrict
the right to seek employment in respect of non-citizens and asylum seekers, and the
particular expertise of the legislative and executive branches in this area, O’Donnell J held
that the absolute ban imposed by the statute went too far: it “does not merely limit the right
severely: it removes it altogether”.30 The ban therefore violated the constitutional rights of
asylum seekers.

In a single paragraph, the Court outlined the unusual manner in which it would address this
unconstitutionality. Instead of invalidating the provision outright with immediate effect, the
Court held that the absolute ban in the 1996 Act (re-enacted in the 2015 Act) was “in
principle” contrary to the constitutional right to seek employment, but did not invalidate the
section:

[S]ince this 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.31

In essence, the Court declined to make an immediate ruling about the constitutionality of the
statute, but instead deferred such a ruling while encouraging a legislative response that would
resolve the issue. This approach might have been thought a result of the unusual statutory
situation in this case. However, though there were several relevant statutory provisions (and
the provision challenged had been replaced by a newer provision), traditional invalidation
could have solved the problem.

29
The Court further held that although distinctions may be made between citizens and non-citizens in respect
of rights, non-citizens should be entitled to rely on those rights that “relate to their status as human persons”
NHV (n 26) [11].
30
Ibid [19]. Cf, generally, O’Mahony (n 2).
31
ibid [21].

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Shortly PC v Minister for Social Protection32 affirmed that this was not an isolated incident.
This case saw a challenge to s.249 (1) of the Social Welfare (Consolidation) Act, 2005, which
provided that a person would be disqualified from receiving certain social welfare benefits –
including contributory old age pension – if he or she was “undergoing penal servitude,
imprisonment or detention in legal custody”. PC was serving a term of imprisonment after
being convicted of serious offences against a family member. Being denied a contributory old
age pension – which he would, but for the statutory provision, have been entitled to – he
claimed he was disadvantaged. He could not buy coffee, items in the prison tuck shop, or
electrical goods, as other prisoners – who might have had private pensions, unaffected by the
section – could.33 MacMenamin J, for a unanimous Supreme Court, held that the section
constituted an additional, non-judicial punishment:

[T]his punishment is not imposed by a court at all. As such, it contravenes Articles 34

and 38 of the Constitution. The imposition of penalties, in the context of sentencing a
person convicted of crimes, is a function exclusively reserved by Article 34 of the
Constitution to the courts. Sentencing is an integral part of trial in due course of law,
guaranteed by Article 38 of the Constitution. The provision, as applied, offends against
those principles.34

It was clear the Court thought the section was unconstitutional. However, considering the
remedy, MacMenamin J cited NHV (and the Persona case, discussed below) and concluded:

[I]t would be appropriate for a court to afford the Oireachtas, and/or the Executive,
an opportunity to decide what the best legislative solution might be... In the light of
the fact that the parties herein have not had the opportunity of addressing the Court
in relation to the question of remedy, I would propose adjourning this matter for a
limited period in order to allow the parties to make submissions on the question of a
remedy, on the facts of this particular case.35

32
[2017] IESC 63.
33
ibid [17].
34
ibid [59].
35
ibid [68]-[69].

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Again, the law was found to be unconstitutional and not invalidated. The case was adjourned
for a time to allow for some consideration of the issue and for detailed submissions on
remedies, and a further pronouncement from the Court is expected in early 2018. NHV and
PC suggest that a major new remedial development is in the process of taking shape.
However, its outlines are still not clear.

Canadian suspended declarations or a different remedial development? Parsing Persona

In NHV and PC, the Supreme Court did not use the language of suspended declarations, or
cite the Canadian example in NHV or PC. Indeed, the Court did not grant a suspended
declaration of invalidity in these cases. The Court did not declare the laws to be invalid and
suspend the effect; instead, the Court found that these laws violated constitutional rights, but
deferred making an order invalidating the law, perhaps in the hope that the legislature might,
in the meantime, make such a declaration unnecessary. Based on the judgments in both NHV
or PC, there is no guarantee that the laws in question will be invalidated at all.

It seems to me that there are two possible readings of this. The first is that the remedy used
here is a first step towards a suspension remedy which, after further argument and future
judgments, will crystalise into a suspension doctrine. The second is that it is something
different and distinct, and perhaps part of a broader remedial reform.

If not suspended declarations, then what might this new practice be? It might be a broader
practice of declaring violations of constitutional rights and leaving discretion to the legislature
to remedy them, without this being limited to invalidating statutes. It might develop into a
practice of leaving the legislature time to address a problem, but giving the Court room to act
in the event that nothing is done. In cases where invalidation is apposite (like NHV and PC)
then this might follow, but in other cases, more radical, creative remedies might be needed.

Some substantial support for this idea can be found in obiter comments in the concurring
judgment of Clarke J in the Supreme Court in Persona Digital Telephony v Minister for Public

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Enterprise,36 which was cited with approval by MacMenamin J in PC. The case related to the
rules on champerty and third party litigation funding. While agreeing with the Court in the
disposition of this case, Clarke J commented obiter that there might be problems with
effective access to justice in contemporary circumstances. He noted that there might be some
cases that, as a result of legal costs and related rules, could never get to court, and that in
these instances there could potentially be a violation of constitutional rights. However, there
are any number of ways that this could be remedied, and the choice between these was
clearly a choice to be made by the elected branches. Clarke J suggested that the best approach
in this circumstance – should it arise – might be to find that a right had been violated; to allow
the legislature and executive time to address the issue; and if no solution was forthcoming,
to fashion some new remedy:

it would clearly be appropriate for the Court to afford the Oireachtas and/or the
Executive an opportunity to decide what the best solution might be. If, however, in
such circumstances no action whatsoever was taken (or action which clearly was
insufficient to meet whatever requirement had been identified) then there might very
well be a strong argument that the Court’s jurisdiction would necessarily have to
extend to taking whatever measures were necessary.37

This approach is clearly similar to that in NHV and PC – MacMenamin J in PC adopted Clarke
J’s language almost verbatim – but it is broader. It is not limited to invalid statues, as
suspended declarations are, but suggests a broader remedial toolset that could apply to all
sorts of breaches of constitutional rights. It would suggest that courts would strongly
recommend legislative action to remove constitutional problems, and would be willing to take
more radical (and creative) action within their own powers in the event that this is not
forthcoming.

This would be a new departure, but there is some other precedential support for this
approach. It echoes comments made by Barrington J in McDonnell v Ireland.38 The Judge

36
[2017] IESC 17.
37
ibid [4.3] per Clarke J.
38
McDonnell v Ireland [1998] 1 IR 134. My thanks to Gerard Hogan for bringing this passage to my attention.

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observed that in the earlier case of Byrne v Ireland39 the Supreme Court had offered to
adjourn the case if the State gave an undertaking to “introduce legislation regulating the
citizen’s right to sue to the State”, which would have resolved the matter. It was only when
no such undertaking was given that the Court went on to find the royal prerogative being
challenged unconstitutional.40 In this context, Barrington J noted that the in the first instance,
the balancing of rights is for the legislature, but if and when the legislature failed to do this,
the Court would “feel obliged to fashion its own remedy”.41 This seems close to Clarke J’s
suggested new approach, having at its core a principle that rights must be vindicated, and
courts must be creative in doing this, but that in the first instance, the legislature might be
given a right of refusal to pick a solution before the courts act.

Clarke J’s new approach would also resemble an extension of another remedial development:
responding to omissions in statutes. These had long presented a vexing problem, and the
courts had held that if unconstitutionality resulted in an omission from a statute and not from
the affirmative provisions of the statute, nothing could be done, as invalidation would serve
no purpose.42 Then, in Carmody v Minsiter for Justice,43 the Supreme Court adopted a new
approach. In that case, the criminal legal aid regime – in denying those facing very complex
criminal charges in lower courts the aid of a barrister – was found to violate the constitutional
rights of the plaintiff. However, since the problem arose from an omission in the statutory
entitlement to representation by counsel, the Court’s solution was to bar the prosecution
unless and until the constitutional error was corrected and the accused could be provided
with the assistance of a barrister. This encouraged – though did not absolutely require – the
legislature to change the law. This approach has been followed in several subsequent cases.44
In one case, Hogan J compared the Carmody approach to the “admonitory decision” in the
jurisprudence of the German Constitutional Court.45 This slightly different practice sees the

39
[1972] IR 241.
40
McDonnell (n 38) 148.
41
ibid.
42
See Somjee v Attorney General [1981] ILRM 324. See criticism of this doctrine by Hogan J in BG v Judge
Murphy [2011] IEHC 445, [2011] 3 IR 748, [36], 767-768.
43
[2009] IESC 71, [2010] 1 IR 635.
44
See BG (n 42); Byrne (a minor) v Director of Oberstown School [2013] IEHC 562.
45
In BG (n 42) [45]-[48], 772-773 Hogan J noted that invalidation would not avail the applicant, and citing the
German Constitutional Court jurisprudence on the ‘admonitory decision’, said that a remedy similar to the one
in Carmody could serve as “a temporary filling - rather than a full extraction - pending the appropriate repair
and overhaul of the legislative scheme at some stage in the future by the Oireachtas.”

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German court declare that a law is constitutional for the time being, but with the implication
that it might become unconstitutional in the near future if action was not taken.46 This is
particularly useful for creeping unconstitutionality, where an unconstitutional situation
emerges over time as circumstances change.

Clarke J’s suggested approach takes the spirit of the Carmody and extends it. It would suggest
legislative action, with an accompanying promise of more creative remedies in the face of
legislative inaction, but it would not be limited to cases of specific statutory lacunae, and
could apply to a variety of constitutional failures.

It might be that NHV and PC are another step along this road, applying to invalid statutes
rather than other forms of unconstitutionality, bringing it closer again to the German practice.
However, many questions would need to be answered about Clarke J’s suggested approach.
What precisely would it involved in terms of reviewing legislative solutions, and what would
the Court fashioning its own remedies entail? It could run the gamut from the sort of direct
intervention disavowed in TD; to negative reliefs, in the style of Carmody; to substantial
judicial intervention stopping short only of mandating legislative or executive action; to liberal
use of constitutional damages; to any point in between these positions. Also unclear is the
amount of room for manoeuvre the legislature would have before the courts would intervene
to say that the solutions would is inadequate. Will the courts intervene for total failure of the
legislature to act, without any excuse? In cases of “clear disregard” of the Constitution?47 In
cases where the response in inadequate vis the court’s initial judgment? All of these are
possible in Clarke J’s formulation in Persona, though we might think some are more likely than
others.

While we have much to learn about the approach suggested by Clarke J as it develops, it
would be a suitable remedial option for many difficult constitutional cases. Once care is taken
in determining its limits, it could respect both the primacy of the legislative and executive

46
See generally Wiltraut Rupp-von Brünnick “The Admonitory Functions of the German Constitutional Court”
(1972) 20(3) Am. J. Comp. Law 387.
47
This standard is commonly used in respect of review of the executive power. See Crotty v An Taoiseach
[1987] IR 713.

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branch when it comes to policymaking, while offering the courts a chance to do more about
constitutional issues that do not derive from straightforward statutory provision. Given the
relentless growth of the administrative state and the reality that many problems will arise
from a combination of factors rather than simply a discrete statutory source, a development
of this sort could be essential to ensure that constitutional adjudication has the tools
necessary to address breaches of the Constitution.

However, there is nothing to suggest that the Persona approach could not exist alongside
formal suspended declarations of invalidity, the latter to be used when invalidity derives
directly from statutes, with the Persona approach saved for other constitutional issues.
Indeed, as will be discussed in the next section, formal suspension might be a more
constitutionally legitimate way to deal with statutes that are unconstitutional.

Part III: The challenges to the new approach

There are, it seems to me, three core challenges to the Supreme Court’s new approach. First,
is this approach constitutionally legitimate? Secondly, does it provide adequately for
individual remedies? Finally, does it change problematically the relationship between the
judicial and legislative branch?

Constitutionally legitimate?
A possible objection to suspended declarations of invalidity is that they are not compatible
with the constitutional order. Article 15.4.2 provides that constitutionally repugnant laws
“shall… be invalid.” The argument against such declarations is that this provision suggests
immediate invalidity.48 However, there is a broader set of values to be considered when
interpreting the meaning of “shall… be invalid”, as these words do not define themselves.
(The text does not say they shall immediately become invalid.) One of the core purposes of
the Constitution is to attain social order and respect the rule of law. If some period of delay
is needed before invalidation takes effect to ensure this, it would not seem to offend against

48
See discussion in Carolan (n 9); Eoin Carolan, “A ‘dialogue-oriented departure’ in constitutional remedies?:
the implications of NVH v Minister for Justice for inter-branch roles and relationships’ (2017) forthcoming. See
broader discussion in Kenny (n 9).

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the meaning and import Article of 15. The law shall still be invalid, but other considerations
demand a delay before this invalidity takes effect.

The objection, oddly, might have more force against the approach adopted in NHV and PC
than against the Canadian approach of formal suspension. In NHV and PC, laws were found
to be unconstitutional, but the laws were not invalidated. Indeed, the implication is that they
may never be invalidated if the legislature acts swiftly to remedy the errors. This seems to
raise problems with Article 15.4, because the law shall not, in these case, necessarily be
invalid.

When the courts come back to consider these matters more formally, the best approach
would be to adopt a formal suspension of invalidity for cases like NHV and PC where there is
a clear statutory invalidity, while leaving Clarke J’s suggested approach in Persona when there
is a breach of rights that is not specifically localised in the provisions of a statute. An
alternative would be to adopt the Persona approach more fully and make German-style
admonitory declarations in cases such as these. However, this does not seem immediately
apposite in these cases, particularly in PC. The law was held to be not becoming
unconstitutional; it was held to be unconstitutional from its inception as a usurpation of the
judicial power. It seems that formal suspension should form part of the courts’ remedial
toolkit alongside other innovations.

Individual Remedies
There are two concerns about the remedies that might be received by individuals in cases
such as NHV and PC. The first is a principled concerned about leaving statutes in place that
violate constitutional rights. The second is a pragmatic concern about what this means for
constitutional litigation.

The first concern – raised by Carolan49 in Ireland and Leckey and Roach50 in Canada – is that
this approach allows unconstitutional laws to persist and apply to people until the invalidation

49
Carolan (n 9); Carolan (n 48).
50
Leckey (n 20); Kent Roach, “New and Problematic Restrictions on Constitutional Remedies” 2004 49(3)
Criminal Law Quarterly 253.

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takes effect. If the invalidity is suspended, the law continues to apply. Similarly, the laws in
NHV and PC remained in force after the judgments finding them to be unconstitutional. The
maintenance of unconstitutional criminal rules raises particular concerns about respect for
the constitutional rule of law.51 The Canadian courts have encountered this problem. In one
recent case, R v Smith, the Supreme Court of Canada reversed a suspension imposed by the
lower court in respect of certain laws around medical marijuana and invalidated them
immediately. The Court said that to “suspend the declaration would leave patients without
lawful medical treatment and the law and law enforcement in limbo.”52

The second concern is that the suspension approach does not focus enough on the plaintiff
in the individual case, which has always been a hallmark of our system of litigation. The
plaintiff who has highlighted the constitutional error in the law may be left with no remedy
and no recourse. The only salve will be that the flaw will ultimately be rectified, but that will
in many cases not avail the plaintiff. This concern was not raised by the circumstances in NHV,
as the plaintiff had, by the time of the Supreme Court ruling, already left the direct provision
system and was able to work. It is acute in PC, however; PC has had payments
unconstitutionally withheld from him, and, if the law is not invalidated, it is unclear what basis
there might be for reclaiming these payments.

A related concern that spins off from this is the need for individual litigants to have incentives
to take those cases in order for our system of constitutional adjudication to work at all. Our
adversarial system relies almost entirely53 on a well-situated litigant, personally affected by
the impugned law, and suffering specifically by reason of the alleged invalidity. We expect
them to take on a substantial burden and risk in terms of personal commitment and cost. We
can only expect them to do this if success in their case will provide them with some individual

51
Individuals have remained in detention throughout suspension, and this drew criticism from academics. See
R v Demers [2004] 2 SCR 489, 2004 SCC 46, and Roach’s commentary on the case; Roach (n 50). Cf Canada
(Attorney General) v. Bedford [2013] 3 SCR 1101, 2013 SCC 72; R v Bain, [1992] 1 S.C.R. 91; and Leckey (n 16)
and (n 20).
52
R v Smith 2015 SCC 34, [2015] 2 S.C.R. 602 [32].
53
The exception, of course, is Article 26 references, which are uncommon. There are also limited exceptions to
the rules of standing.

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benefit. If there is no remedy for the individual plaintiff, they may not take the case, and the
constitutional problem may never come to light.54

Canadian practice offers a partial solution to these problems. Some Canadian cases have
avoided this outcome by exempting the plaintiff from the suspension, allowing some
immediate relief. This was done in Carter v Canada55 with respect to the suspended
invalidation of the law against assisted dying, and in R v Swain in respect of detention for
those found not guilty by reason of insanity.56 In Carter, Gloria Tylor, the woman at the centre
of the case, was given an exemption from the suspension initially ordered by the trial court,
allowing her to end her life with assistance notwithstanding the suspension of invalidity.57
This was moot by the time the Supreme Court made a similar invalidation as Ms Taylor had
died from complications of her illness. However, during the period of the Supreme Court’s
suspension, other individuals were allowed to apply to court for exemptions from the ban.58

Irish courts have expressed reluctance to do this. A similar request was emphatically rejected
in Fleming v Ireland.59 In claiming a right to die with assistance, Ms Fleming argued that the
Court would not necessarily have to strike down the law in its entirety (which would have the
most sweeping effect), but might make an exception for her (and perhaps people like her);
she had unquestionably strong independent judgment and no mental impairment, and was
not the kind of vulnerable person that would need protection in a liberalised regime. The
Supreme Court rejected this possibility; the Court held that rights must be general, and while
the applicant’s situation was “most tragic”, the Court had to identify general entitlements,

54
Bederev (n 7) presents an example. Mr Bederev was accused of drug possession, and challenged the
scheduling provision for lack of principles and policies. If a suspended declaration of invalidity were given in
that case, Mr Bederev would be convicted under the law, valid and continuing in force. This would be true,
mutatis mutandi, in any non-delegation case taken in future: the law would continue to apply while
suspended, before being replaced. It would be true for many other types of cases as well. Certainly, for some
plaintiffs, the benefit of the prospective/future replacement of the rule will be worthwhile (John Grace Fried
Chicken v Catering JLC [2011] IEHC 277, [2011] 3 IR 211 might be an example) but for many others it will not,
and these cases will not be taken.
55
Carter (n 23).
56
[1991] 1 SCR 933.
57
Carter (n 23) [129].
58
See for example Jacques Gallant, “Toronto man granted right to physician-assisted death” Toronto Star,
March 17th 2016.
59
[2013] IESC 19, [2013] 2 IR 417.

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not make an “ad hoc decision on the individual case”.60 The situation in Fleming was
somewhat different to a case of suspended invalidity, but it shows a reluctance to embrace
any remedy that excludes individuals or small groups from laws of general applicability. On
the other hand, the A case, and the cases following Damache v DPP, may provide some scope
for such an approach, as they effectively exclude certain persons from the application of an
invalid law while allowing other applications.61

Exemptions are not a perfect solution to all of these problems, but it seems that the Irish
courts – if adopting suspension – must overcome aversion to exemption remedies/tailored
constitutional solutions. It is hard to see suspension working in many cases unless exemptions
are embraced. Exclusion of certain categories of cases from suspension, such as criminal laws
and non-delegation cases, might go some way to avoiding these problems. However, there
would still be cases outside these categories where problems remain, and categorical
exclusions would make suspension markedly less useful across the board. Other possibilities
include using constitutional damages or other more inventive remedies to refocus the matter
on the individual.

However, if these difficulties with suspension proved insurmountable – if the courts were
unwilling to embrace exemption, say - there are other possible routes. For example, broader
reading down/reading in, more aggressive use of severance, or US-style as-applied
constitutional invalidity (invalidating not the law in its entirety but only its unconstitutional
applications) could be adopted.62 These options provide immediate relief for the plaintiff and
do not raise the rule of law concerns about unconstitutional laws continuing in force, though
they may raise other concerns about the separation of powers.63

Radical change in institutional relationship and policy distortion?

Carolan, writing following NHV and Persona but before PC, expresses concern that this new
development could cause some radical departure in court procedure or institutional

60
ibid [115].
61
See 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.
62
See, for a case in favour of this approach, Kenny (n 12).
63
See ibid and Kenny (n 6).

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relationship between the courts and the legislature.64 He is particularly concerned that
submissions on remedies in NHV would be made after a period of time, suggesting the Court
would engage in some active, substantive constitutional review of a proposed new policy.
This would be a sort of ex ante constitutional review, assessing prospective legislative
responses and even requiring or suggesting different approaches. Carolan argues this would
involve the courts too much in the policymaking process, risking a change in the institutional
relationship between courts and the legislature. Focusing on some of the more problematic
consequences of the “dialogue” metaphor, Carolan says such an approach puts at risk the
recognition that each branch approaches problems a different way, and should be given
leeway to do this, rather than forced to deal with matters in the style of another branch. More
broadly, it raises general concern about what Tushnet calls policy distortion: when judicial
rulings have the effect of skewing the making of policy by virtue of anticipated negative
judicial reaction.65

Carolan admits that in the absence of more information about how NHV will be resolved, his
comments are speculative. It seems to me unlikely that, whatever this development will
mean, the courts will engage in constitutional review of policy alternatives in detail. At most,
I think the PC and NHV courts were suggesting that they would wait to see if some credible
legislative solution to the statutory issue would be forthcoming before it declared laws
invalid. Though there are several ways to read Clarke J’s comments in Persona, they are
certainly compatible with this approach; only if basically nothing is done – if no adequate
attempt to solve the problem solution is made – that the courts would act to fashion a
remedy. This is far from engaging in detailed review or guidance on policy response. Indeed,
there is a strong argument that this is (or should be) part of the Court’s role in the separation
of powers: ensuring that legislative failure to respect the Constitution does not abide if the
courts have the capacity to provide a remedy.66

64
Carolan (n 48).
65
- Mark Tushnet, “Policy Distortion and Democratic Deliberation: Comparative Illumination of the
Countermajoritarian Difficulty” (1995) 94 Michigan Law Review 245.
66
Of course, policy distortion might still occur in this scenario, but this seems to be an inevitable part of strong
form judicial review; it necessarily distorts policy around constitutional norms.

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Generally, it seems unlikely that the Irish courts intend to make a breakneck turn in their
approach to the separation of powers that would see them redlining policy proposals. They
have, for decades, been at such pains not to invade the legislature’s domain, that they have
invalidated laws with drastic consequences rather than have even a slight influence on the
lawmaking process. The idea that a Court so cognisant of institutional limitations would
suddenly abandon its conception of that role entirely and get involved in policymaking is, to
my mind, not credible. As for a less drastic, more modest shift in the separation of powers,
that is inevitable if there is to be any change in remedial practice, as the limitations on
remedial practice have always been associated with an (in my view) overly rigid
understanding of the separation of powers. Some move away from this rigidity would be good
for both branches, but the precise lines drawn by this new approach will have to be assessed
as they become apparent to see how they might change the relationship between the
legislature and the courts.

In any event, the preferable approach when it comes to legislation is probably to formally
invalidate and suspend the effect. This minimises the risk of policy distortion, as it does not
have any remedial hearing that would resemble the oversight that Carolan fears. As to
broader concerns about judicial intervention in policy, we cannot know if this is a problem
until the Court’s approach comes more clearly into focus.

Conclusion: Uncertainty and Changing Legal Culture

These judgments – NHV, PC and Persona – are good evidence that a potentially major
development in remedies is being considered by the Court. But we have, so far, had very little
commentary from the Court on this; no broader consideration of the question; no statement
of intent. We cannot be sure how far this development will go, what its outline (let alone its
details) will be.

It feels as though this development (alongside others67) represents a change in the

constitutional and judicial culture, a change in the outlooks and suppositions of our judges on

67
See O’Mahony’s discussion of the NHV case in the context of rights recognition and unenumerated rights;
O’Mahony (n 2).

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certain core constitutional matters.68 It feels as though the Supreme Court may, having for
several decades been wary of constitutional innovation,69 be willing to take novel and
innovative steps. At the same time, the nature and extent of this change is very hard to pin
down. It does seem that the Court is preparing to embark on some significant departure in
the remedial space, one of most radical changes to court practice in decades. However, it is
behaving in its usual, meticulous way, embarking on this path slowly, with the benefit of
argument, and not prematurely committing itself to this course until it has had time to
consider what exactly this will mean.

Culture can and does change, though it is hard to know when it will or why it does.70 What
might be causing change in Ireland’s constitutional and judicial culture? There are many
possible reasons: new judicial personnel, a Supreme Court rid of workaday appeals, various
political and social upheavals in the broader culture that changed the thinking of lawyers and
judges, and many other factors, both major and minor, might play a role. The precise cause is
difficult or impossible to know. Often, we can only really be sure of the nature of such changes
in hindsight.

I would guess that the change in culture we are seeing is significant, but not sweeping. The
Court seems to be adopting a course that is both radical and conservative, embracing a radical
change, but in a cautious way. It is taking tentative, incremental steps rather than
pronouncing radical departures. It may also be embracing a remedial process where it may
do less – insofar as it will invalidate fewer laws and interfere less radically with the legislative

68
See generally on culture/community values in constitutional law, Kenny (n 1); Oran Doyle “Conventional
Constitutional Law” (2015) 38 DULJ 311. I take Gerard Hogan to make a similar point when he discussed the
difficulty in expecting “one single event to change established, embedded traditions”. Hogan (n 11).
69
My sense has been that the prevailing culture of the judiciary has been a liberal judicial conservatism –
underwritten by the goals of enlightenment liberalism, executed via a Burkean conservative incrementalism,
thinking that these goals are best advanced by leaving the legislature to do its work rather than by intervening
judicially. See Kenny (n 1). This was seen in everything from the demise of the unenumerated rights doctrine,
to judicial enforcement against the executive, to rejection of rights claims with major social consequences. The
few exceptions usually involve core liberal values and core judicial competences – criminal process rights and
fair procedures. Hogan (n 11) seems to make a similar suggestion. The exact content of the culture can only be
speculated about, I think. It can never be known fully. See David Kenny, “Conventions in Judicial
Decisionmaking: Epistemology and the Limits of Critical Self Consciousness” (2015) 38(2) DULJ 432.
70
Stanley Fish says that change can be brought about by “[a]lmost anything and nothing in particular”. See
Stanley Fish, “Almost Pragmatism: The Jurisprudence of Richard Posner, Richard Rorty, and Ronald Dworkin” in
There’s No Such Thing As Free Speech (Oxford University Press, 1994) 207.

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framework – so that it can do more – finding unconstitutionality more readily, knowing the
consequences will be less extreme. This approach – at once radical and conservative – adds
to the uncertainty as to the direction of the Court.

Perhaps, when the Court’s approach comes further into focus, the apparent problems with
the Court’s new departure will prove to be a function of the uncertainty created by the Court’s
incremental approach. The non-suspension delayed remedies of PC and NHV may prove to
be a transitional approach, before more elaborate argument leads to embrace of formal
suspension. The individual remedy problems – and its potential to discourage litigation – may
be resolved by the Court in the subsequent judgment in PC, which presents these issues
clearly. The fear of significant intrusion into policymaking may be dispelled as soon as the
limits on the Court’s approach becomes clear.

At the same time, it is possible that the Court will be more radical, engaging in a policy-
distorting overview of legislative and executive proposal, as Carolan fears. I think this is
unlikely, because the Court is still, in many respects, behaving in its cautious, incremental
manner. The Court’s actions to date do not suggest to me that the Court is on the verge of
completely overhauling the separation of powers and breaking with the most major
precedents on the outer limits of judicial power. However, it is not impossible that the Court’s
embrace of innovation might lead farther than I believe. Perhaps the Court’s caution in
embracing this development is simply the last vestige of an old paradigm, soon to be
discarded for a bolder approach.

If the culture of the Court is changing – if it is going to take steps that seem to go beyond what
we have come to expect of late – this means that, more than any time in the recent past, we
are unable to rely on our instincts about the culture and tendencies of the Court. At these
moments, those of us who are in various ways immersed in the legal culture – judges,
practitioners, academics – may have a sense of change, but our diagnoses and
prognostications will be liable to be wrong. We may not fully appreciate the change that is
taking place, being too blinded to suppositions and assumptions of an internalised legal
culture that are themselves being changed. Or we may be so disarmed and disoriented by any
change that we exaggerate the meaning of new developments.

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Our constitutional law has had periods of judicial expansion and contraction in its eighty-year
history.71 A long period of slow contraction and stability followed after a similarly long period
of expansion and change.72 It looks now as if we might move again toward an expansionary
period. At its eightieth anniversary, it seems fitting that this should be so, to illustrate that
there is yet vitality and scope for growth in the document, that it has not become a stagnant
artefact, yielding to change only when formally amended. To my mind, it seems probable that
this expansion will not resemble, in scope or degree, the expansion seen in decades past, but
will be more modest and restrained.73 It will be a reasoned product of – rather than a stark
renunciation of – our recent constitutional past. This would seem to be a balance between
the two preceding periods, but it will not be an equilibrium. In a system as complex and
ultimately social as constitutional law, there will never be long term equilibrium. There will
only ever be periods of consistency waiting to be broken. There will always be cycles, as new
events, new circumstances, and new people interact with the constitutional order and tests
the limits – textual and doctrinal, conservative and innovative – of our constitutional law.
Difference is the hallmark of the human condition, and constitutional law – as one of the core
political tools through which we attempt to mediate and mitigate difference – will always be
a site of contestation, dispute, and disagreement that will lead it always again to change.

71
See Hogan et al. (n 10) for an outline of this, and a discussion of the difficulty in both identifying and
explaining these trends.
72
Hogan (n 11) has a fascinating account of this. We also happen to use similar terms – such as zeitgeist and
crossroads – to describe these phenomena.
73
See O’Mahony (n 2) for a similar evaluation.

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