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  • 1997 The aforesaid approach was adopted by the Court because of certain inherent and obvious difficulties which arose in connection with the Bill This Bill was passed by the Oireachtas on the 29th April 1997 at a time when the Employment Equality Bill 1996 had not been signed by the President in accordance with the provisions of Article 13 s 3 sub s 1 of the Constitution but had by order given under her hand and seal on the 3rd April 1997 been referred to the Supreme Court for a decision on the question as to whether the Employment Equality Bill 1996 or any provision or provisions thereof were repugnant to the Constitution or to any provision thereof The signature of the President is an absolute requirement before a Bill passed by both Houses of the Oireachtas is enacted into law Article 13 s 3 sub s 1 of the Constitution provides that â Every Bill passed or deemed to have been passed by both Houses of the Oireachtas shall require the signature of the President for its enactment into law Article 25 s 1 of the Constitution provides that â As soon as any Bill shall have been passed or deemed to have been passed by both Houses of the Oireachtas the Taoiseach shall present it to the President for his signature and for promulgation by him as a law in accordance with the provisions of this Article Article 25 s 4 provides â 1997 The Equal Status Bill 1997 392 2 I R Hamilton C J S C 1 Every Bill shall become and be law as on and from the day on which it is signed by the President under this Constitution and shall unless the contrary intention appears come into operation on that day 2 Every Bill signed by the President under this Constitution shall be promulgated by him as a law by the publication by his direction of a notice in the Iris Oifigiúil stating that the Bill has become law Article 26 s 1 sub s 3 of the Constitution provides that â The President shall not sign any Bill the subject of a reference to the Supreme Court under this Article pending the pronouncement of the decision of the Court Article 26 s 3 sub s 1 provides that â In every case in which the Supreme Court decides that any provision of a Bill the subject of a reference to the Supreme Court under this Article is repugnant to this Constitution or to any provision thereof the President shall decline to sign such Bill Notwithstanding these provisions and the situation created thereby the Oireachtas passed the Equal Status Bill 1997 which Bill presumed that the terms of the Employment Equality Bill 1996 had been enacted into law The Court pronounced its decision on the reference of the Employment Equality Bill 1996 on the 15th May 1997 The Bill contains numerous references to the Employment Equality Act 1997 when in fact no such Act existed at the time of the passing of the Bill because it had not been signed by the President or exists because the Supreme Court having decided that certain provisions were repugnant to the Constitution the said Bill was not signed by the President It is unfortunate that the Oireachtas passed the Bill at a time when the Employment Equality Bill 1996 had been referred by the President to the Supreme Court for a decision as to whether it or any provision of it was repugnant having regard to the terms of the Constitution because the Bill and the Employment Equality Bill 1996 were inextricably linked the Bill contained two sections viz s 40 sub s 3 and s 71 which were in all material terms similar to the provisions of s 63 sub s 3 and s 15 of the Employment Equality Bill 1996 which had been found by this Court to be repugnant to the Constitution and some of the provisions of the Bill were dependant upon the enactment into law of the provisions of the Employment Equality Bill 1996 1997 The Equal Status Bill 1997 393 2 I R Hamilton C J S C Section 40 sub s 3 of the Equal Status Bill Section 40 sub s 3 of the Bill provides that â In any proceedings for an offence under this section a document purporting to be certified by the Director and relating to the circumstances in which the offence is alleged to have occurred shall be received as prima facie evidence of the facts stated therein This provision in the Bill is in all relevant terms similar to the terms of the provisions of s 63 sub s 3 of the Employment Equality Bill 1996 which provides that â In any proceedings for an offence under this section a document purporting to be certified by the Director or to be sealed with the seal of the Court and relating to the circumstances in which the offence is alleged to have occurred shall be received as prima facie evidence of the facts stated therein By its decision on the reference to the Court of The Employment Equality Bill 1996 1997 2 I R 321 the Supreme Court decided that at p 383 â The use of such a certificate is so contrary to the concept of affording a person a trial in due course of law as to render the provision contrary to Article 38 s 1 of the Constitution Accordingly on this ground the Court finds the provision repugnant to the Constitution Having regard to such finding and to the fact that counsel on behalf of the Attorney General has submitted no argument to the contrary the Court must of necessity find that the provisions of s 40 sub s 3 of the Bill are repugnant to the Constitution for the reasons set forth by the Court in its judgment on the reference to it of The Employment Equality Bill 1996 Section 71 of the Equal Status Bill 1997 Section 71 of the Bill provides that â 1 Anything done by a person in the course of the person s employment shall be treated for the purpose of this Act as done also by that person s employer whether or not it was done with the employer s knowledge or approval 2 Anything done by a person as agent for another person with the authority whether express or implied and whether precedent or subsequent of that other person shall be treated for the purposes of this Act as done also by that other person 3 In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer it shall be a defence for the employer to prove that the 1997 The Equal Status Bill 1997 394 2 I R Hamilton C J S C employer took such steps as were reasonably practicable to prevent the employeeâ a from doing that act or b from doing in the course of the employee s employment acts of that description This provision of the Bill is in all material respects identical with the terms of s 15 of the Employment Equality Bill 1996 which provided that â 1 Anything done by a person in the course of his or her employment shall be treated for the purposes of this Act as done also by that person s employer whether or not it was done with the employer s knowledge or approval 2 Anything done by a person as agent for another person with the authority whether express or implied and whether precedent or subsequent of that other person shall be treated for the purposes of this Act as done also by that other person 3 In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employeeâ a from doing that act or b from doing in the course of his or her employment acts of that description In the course of its decision on the reference of The Employment Equality Bill 1996 1997 2 I R 321 to it the Court concluded at p 374 thatâ to render an employer liable to potentially severe criminal sanctions in circumstances which are so unjust irrational and inappropriate would make any purported trial of such a person not one held in due course of law and therefore contrary to Article 38 s 1 of the Constitution and also repugnant to the provisions of Article 40 s 1 of the Constitution In view of the fact that the provisions of s 71 are similar to the provisions of s 15 of the Employment Equality Bill 1996 and the fact that the counsel for the Attorney General submitted no argument to the contrary the Court is satisfied that for the reasons stated in the course of its decision in the reference of the Employment Equality Bill that the provisions of s 71 of the Bill are repugnant to the provisions of the 1997 The Equal Status Bill 1997 395 2 I R Hamilton C J S C Constitution contained in Article 38 s 1 and Article 40 s 1 of the Constitution Having regard to the admitted inevitability of such findings by the Court and the consequence that the President would be precluded from signing the Bill the Court had sought submissions from counsel as to whether the Court was obliged to consider all the other provisions of the Bill and to decide whether any other provisions of the Bill were repugnant to the Constitution or any provision thereof The fact that provisions of the Bill were dependent upon the enactment into law of the Employment Equality Bill 1996 is obvious even from a consideration of the terms of the long title to the Bill and the numerous references contained therein to the Employment Equality Act 1997 The long title to the Bill provides that it is â An Act to promote equality and to prohibit types of discrimination harassment and related behaviour in connection with the provision of services property and other opportunities to which the public generally has access to provide for remedying certain discrimination and other unlawful activities to provide for the administration by the Equality Authority of various matters pertaining to this Act and the Employment Equality Act 1997 and to amend certain Acts in relation thereto The following sections of the Bill further illustrate the link between the Bill and the Employment Equality Bill 1996 and its dependency on the enactment into law of the Employment Equality Bill 1996 Section 2 of the Bill provides inter alia that â Director means the Director of Equality Investigations referred to in section 38 of the Employment Equality Act 1997 Section 22 of the Bill provides inter alia that â equality mediation officer and equality officer shall be construed in accordance with the sections 38 4 and 38 5 of the Employment Equality Act 1997 Part III of the Bill deals with the enforcement of the provisions of the Bill and such enforcement is dependent on the existence of a Director and an equality mediation officer and an equality officer No provision for the appointment of such officers is contained in the Bill Their appointments are were dependent on the provisions of s 38 of the Employment Equality Bill 1996 1997 The Equal Status Bill 1997 396 2 I R Hamilton C J S C Section 38 sub s 2 of the Employment Equality Bill 1996 provided that â The Minister with the consent of the Minister for Finance shall appoint a person to be the Director of Equality Investigations to perform the functions conferred on the Director by or under this Act or any other enactment Section 38 sub s 4 of the Employment Equality Bill 1996 provided that â Any person who immediately before the commencement of this subsection was holding office as an equality officer of the Labour Relations Commission shall at that commencement and by virtue of this subsection become as an equality officer a member of the staff of the Director Section 38 sub s 5 of the Employment Equality Bill 1996 provided that â From among the Director s staff the Director mayâ a appoint persons to be equality officers and b appoint persons including those who are equality officers whether by virtue of subsection 4 or of appointment under paragraph a to be equality mediation officers and the Director may delegate any function conferred on the Director by or under this Act or any other enactment to an equality officer or equality mediation officer As the Employment Equality Bill 1996 has not been enacted into law and as the Bill does not provide for the appointment of either a Director equality officers or equality mediation officers other than by reference to the provisions of the Employment Equality Act 1997 the enforcement provisions contained in Part III of the Bill and including ss 22 to 41 inclusive are inoperable Part IV of the Bill is expressed to deal with the Equality Authority and related matters and the provisions with regard to the powers and duties of the Equality Authority referred to therein are to a considerable extent dependent on the provisions of the Employment Equality Bill 1996 and the presumption that the said Bill had been enacted into law Section 42 of the Bill provides inter alia that â discrimination in relation to a matter to which a Parts I to III apply means prohibited conduct as defined by section 2 1 or 1997 The Equal Status Bill 1997 397 2 I R Hamilton C J S C b the Employment Equality Act 1997 applies means discrimination against a person that is in contravention of that Act or victimisation of a complainant within the meaning of Part V of that Act equality clause has the meaning given by section 2 1 of the Employment Equality Act 1997 equality of opportunity save in section 65 includes reference to any act that is in contravention of an equal remuneration term or equality clause under the Employment Equality Act 1997 equal remuneration term has the meaning given by section 2 1 of the Employment Equality Act 1997 With regard to the Equality Authority s 43 provides that â 1 The Equality Authority re named as such by section 38 1 of the Employment Equality Act 1997 shall continue as a body corporate with perpetual succession and power to sue and be sued in its corporate name and to acquire hold and dispose of land Section 38 of the Employment Equality Bill 1996 had provided that â 1 On and after the coming into force of this subsection the Employment Equality Agency established by section 34 of the Employment Equality Act 1977 shall be known as An t à darà s túdarà s Comhionannais or in the English language the Equality Authority and references in any enactment or other document to the Employment Equality Agency shall be construed accordingly It is obviously the intention of the Oireachtas that the powers of the Equality Authority would be those vested in it by the provisions of the Employment Equality Bill 1996 and the Bill because the Bill provides at s 77 thereof that â The Employment Equality Act 1977 is hereby repealed Consequently the Equality Authority would be that created by s 38 sub s 1 of the Employment Equality Bill 1996 The foregoing matters illustrate some of the problems created in relation to the Bill by the failure to enact into law the provisions of the Employment Equality Bill 1996 Issue as to whether the Court is obliged to decide whether the remaining or any other provision or provisions of the Bill are repugnant to the Constitution or any provision thereof Counsel on behalf of the Attorney General has submitted that â 1997 The Equal Status Bill 1997 398 2 I R Hamilton C J S C 1 The President has referred for the decision of the Supreme Court the question as to whether the said Bill or any provision or provisions thereof is or are repugnant to the Constitution or to any provision thereof 2 The reference is in similar terms to the reference of the Employment Equality Bill 1996 3 Having regard to the conclusion of the Court as to its obligations under Article 26 of the Constitution upon such a reference as stated in its decision in The Employment Equality Bill 1996 1997 2 I R 321 the court should now consider notwithstanding the repugnancy of s 40 sub s 3 and s 70 of the Bill all the other provisions of the Bill and in particular those which have been impugned by counsel assigned by the Court and give its decision upon the constitutionality of such provisions In support of this submission she relied on the following passage contained in the decision of the Court given in In Re the Employment Equality Bill 1996 at p 333 â In the present case the President has referred to us the question of whether the said Bill or any provision or provisions thereof is repugnant to the Constitution If in the present case the Court were to find one provision of the Bill unconstitutional and to say no more the Court might have not addressed the problem or problems which is or are causing the President concern The result in the event of the legislature attempting to introduce amending legislation could be a second reference or series of references which would be singularly unsatisfactory to the President and to the legislature Moreover counsel assigned by the Court have attacked several provisions of the Bill Under these circumstances the Court is obliged to consider the whole

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  • to eligible persons Without prejudice to the generality of these provisions the planning authority in establishing such a scheme are to have regard to the following a the accommodation needs of eligible persons in particular eligible persons who have not previously purchased or built a house for their occupation or for any other purpose b the current housing circumstances of eligible persons c the incomes or other financial circumstances of eligible persons and priority may be accorded to eligible persons whose income level is lower than that of other eligible persons d the period for which eligible persons have resided in the area of the development plan e whether eligible persons own houses or lands in the area of the development plan or elsewhere f distance of affordable housing from places of employment of eligible persons g such other matters as the planning authority considers appropriate or as may be prescribed for the purposes of this section The planning authority may review a scheme made under the section and make amendments to it or a new scheme and must carry out such a 2000 The Planning and Development Bill 1999 335 2 I R Supreme Court S C review when making or reviewing a development plan under Part II of the Bill Section 99 enables the planning authority to impose controls on the resale of houses or sites provided or made available by them under these provisions The sale or lease of the houses or sites are to be subject to such conditions as may be specified by the planning authority and without prejudice to the generality of that provision they may provide for a the notification of the planning authority of the resale of any house or land b the basis on which any house sold or leased under the provisions in question may be occupied The terms and conditions imposed by the planning authority must include a condition that where any house or land sold to any person under these provisions is first resold before the expiration of twenty years from the date of purchase the person selling the house or land is to pay to the planning authority out of the proceeds of the sale a specified percentage of those proceeds If for example the house or site is sold by the planning authority to a person for  75 000 but its market value is  100 000 the person on a resale must pay 25 of the proceeds to the planning authority That amount however is to be reduced by 10 in respect of each complete year after the tenth year during which the person to whom the house or land was sold has been in occupation of it as his normal place of residence Where the amount payable to the planning authority under these provisions would reduce the proceeds of the sale disregarding solicitors and estate agents fees and costs below the price actually paid the amount payable shall be reduced to the extent necessary to avoid that result Thus in the example given if the house were resold for  90 000 the amount payable out of the proceeds of sale would be  15 000 and not  25 000 In calculating the amount payable to the planning authority under these provisions due allowance is to be made for any material improvements made by the person to whom the house or land is sold That does not include decoration or any improvements carried out on the land including the construction of a house In default of agreement the amount is to be fixed under the arbitration procedures to which reference has already been made Monies accruing to a planning authority from such a resale are to be paid into the separate account to which reference has already been made and are to be subject to the requirements in relation to that account already mentioned Section 100 provides for the making of regulations by the Minister 2000 The Planning and Development Bill 1999 336 2 I R Supreme Court S C a specifying the criteria for determining the size of the accommodation required by eligible persons including minimum and maximum size requirements having regard to any guidelines specified by the Minister in respect of the provision of housing under the Housing Acts 1966 to 1998 b governing the determination of income for the purposes of section 93 c specifying matters for the purposes of section 94 5 or 98 3 and d setting out requirements related to terms and conditions referred to in section 99 1 The matters referred to in s 94 5 are those which may be the subject of an agreement under s 94 and which in the event of a dispute may be referred by the planning authority or any other prospective party to the agreement to An Bord Pleanà la for determination Section 100 2 provides that regulations made under subs 1 may apply either generally or by reference to a specified class or classes of eligible persons or to any other matter as may be considered by the Minister for the Environment to be appropriate Section 101 provides that where a planning authority performing any function under Part V is not the housing authority for the area for the function it is to consult with the housing authority for the area with respect to the performance of that function Arguments by counsel assigned by the Court Counsel assigned by the court submitted that certain provisions of Part V of the Bill were repugnant to the Constitution as being in violation of Article 40 3 2 and Article 43 protecting the property rights of the citizen and or Article 40 1 guaranteeing the equality before the law of all citizens as human persons It was submitted that other provisions were in breach of Article 15 2 1 vesting the sole and exclusive power of making laws for the State in the Oireachtas Counsel assigned by the court submitted that in reaching a conclusion as to whether Part V of the Bill violated any of these provisions of the Constitution it was important to bear in mind a number of features of the legislation First it was said that the definition of eligible persons was in somewhat general terms A person whose income was not adequate because of the specified criteria to meet mortgage repayments for the purpose of the accommodation he required was not as a result automatically qualified as 2000 The Planning and Development Bill 1999 337 2 I R Supreme Court S C an eligible person The planning authority were also entitled to take into account any other financial circumstances of the eligible person and this it was urged gave the planning authority a huge measure of discretion over a matter that was ultimately fundamental in determining the amount of land which had to be transferred to the planning authority Planning authorities might apply these provisions in a significantly different manner thus leading to an unevenness throughout the country as to the determination of eligibility which in turn was to be a major determinant of the amount of land which had to be transferred on an application for permission It was said that this was particularly striking when one bore in mind that the percentage relationship between mortgage payments and income was fixed in a uniform way throughout the country It was also said that the imprecise definition of accommodation needs could result in applicants for development being required to contribute to housing for people who are better off than they were That was not satisfactorily met by s 100 1 a enabling the Minister to make regulations specifying the criteria for determining the size of accommodation required by eligible persons Secondly it was submitted that the fact that it was left to the planning authority to determine the percentage of land subject to the maximum of 20 to be transferred to the planning authority for the purposes of social and affordable housing would lead to unjust and anomalous consequences Clearly the requirements for such housing in different areas of the country would differ for a variety of socio economic factors including the fact that the State in the past may have benefited some areas more than others and that some local authorities had been less effective in meeting their obligations to provide such housing under the Housing Acts Thus the specified percentage to which an applicant for planning permission in a particular area will be subject would be determined not by his ability to contribute to the social need but by the neglect of housing authorities in the past of their duties for which he was not certainly not responsible It was notable in this context that the planning authority in determining what the specified percentage should be and how much land should be transferred in any particular instance to them was not obliged to have any regard whatever to the financial circumstances of individual applicants for permission Thirdly it was submitted that the singling out of applicants for permission for housing development for adverse treatment in order to increase the supply of social and affordable housing was wholly unjustifiable for a number of reasons Those who simply retained a land bank without making any attempt to develop it were not affected Neither were applicants for commercial development Neither were those who made substantial profits from the increase in house prices such as builders builders suppliers and financial institutions One possible consequence would be that commercial 2000 The Planning and Development Bill 1999 338 2 I R Supreme Court S C development would be encouraged at the expense of the housing development which it was the policy of the legislation to stimulate Fourthly it was submitted that the method by which compensation was to be assessed for land compulsorily transferred to the planning authority was in many respects arbitrary and unfair A person who had inherited land twenty years ago would be forced to accept either its value as of that date or its existing use value In most cases either valuation would be far below that of land which had been acquired in the years immediately preceding the publication of the legislation No rational basis could be put forward for such a differentiation Similarly those who had bought land many years before the publication of the legislation and who had very good reasons for not developing the land e g because they wished to use it for farming were heavily penalised in comparison with those who bought the land at a time closer to the relevant date Fifthly it was submitted that these difficulties were compounded by the absence of any payment for improvements carried out to the land by the applicant and of any compensation for injurious affection to the remaining land It was submitted that while it was undoubtedly important and indeed essential for the executive and the legislature to do everything within their power to remedy the serious socio economic problems resulting from the high level of house prices now prevailing it should not be done by requiring one section of the population owners legitimately wishing to develop their land to bear a disproportionate share of alleviating the social ills in question The transfer of the burden seemed to be based on the premise that such landowners were reaping a benefit from the increase in the value of their land brought about by rezoning decisions and that it was reasonable to require them to accept some reduction in those profits for the benefit of the community as a whole That approach however it was said had insufficient regard to the other factors which had contributed to the present high cost of housing It was accepted that the steep acceleration in the cost of houses over the past decade not merely made it difficult for persons in the special categories to obtain housing accommodation but also put such accommodation beyond the reach of persons with low or even moderate incomes But this was the result it was urged of a number of factors for which landowners were not in any way responsible the failure of central government and local authorities to provide affordable housing and the necessary infrastructure the fact that wages had not kept pace with the increase in house prices and the constraints imposed on such wage increases by successive agreements between governments and various interest groups The inadequate supply of housing which it was acknowledged was probably the most important feature in contributing to 2000 The Planning and Development Bill 1999 339 2 I R Supreme Court S C the present difficulties was a matter for society as a whole and not one for a somewhat arbitrarily selected group to remedy While it was accepted that Part V in common with the rest of the Bill was entitled to the presumption of constitutionality it was submitted that it violated the guarantees as to private property and equality before the law contained in the relevant articles of the Constitution It was accepted by counsel assigned by the court that in considering the Bill the court ought to apply the principle laid down in a number of decisions of the court to the effect that where it was claimed that a bill is repugnant to the Constitution such repugnancy must be clearly established It was further conceded that the objective of Part V i e to provide housing for persons who either would have difficulty in obtaining housing or would be unable to obtain housing if left to rely on their own resources was in the interests of the common good It was submitted that the first issue which the court had to address was whether the relevant provisions providing for the compulsory transfer of land sites or houses to the local authority constituted an unjust attack on property rights having regard to the measure of compensation provided for affected landowners The second issue was whether the relevant provisions were vitiated by invidious discrimination to an extent which rendered them repugnant to the Constitution The third issue was whether the relevant provisions delegating to the local authority and or the Minister for the Environment important critical decisions in regard to the compulsory transfer provisions constituted an unauthorised delegation of legislative power contrary to Article 15 2 of the Constitution It was submitted that in considering whether Part V of the Bill violated the guarantees as to private property in the Constitution the court should consider whether the indisputable delimitation of property rights effected by these provisions operates in an arbitrary and or discriminatory fashion The court would also have to consider whether the measures adopted were proportional to the requirements of the common good which it was sought to advance In considering those questions the fact that the compensation to which the applicant for permission would be entitled in respect of the land which he was obliged to cede to the planning authority was not based on the market value of the land was of critical importance While it had been held in Dreher v Irish Land Commission 1984 I L R M 94 that the absence of a provision for the payment of compensation based on the market value of the property being taken did not of itself mean that the legislation was unconstitutional that decision was one of a series of decisions arising from the operations of the Irish Land Commission from which no general principle could safely be extracted In contrast it was submitted that the 2000 The Planning and Development Bill 1999 340 2 I R Supreme Court S C absence of compensation had been found to be fatal to the constitutionality of the relevant legislation in Blake v The Attorney General 1982 I R 117 Similarly the decision of the court in The Employment Equality Bill 1996 1997 2 I R 321 demonstrated that while the purpose of legislation might be laudable and intended to serve the common good it would be found to be unconstitutional if it sought to transfer the burden of achieving that objective to a particular section of the community in an unfair and discriminatory manner It was further urged that where this was done without compensation or as in this case compensation which fell significantly below the actual value of the property taken and without regard to the financial capacity and needs of those being benefited and those adversely affected it constituted an unjust attack on the property rights of the latter and could not be justified by reference to Article 43 In support of this proposition counsel relied on the decision of the court in Blake v The Attorney General 1982 I R 117 In the present case it was said that the remarkably wide ranging category of eligible persons and the complete absence of any reference to the financial circumstances of the affected landowners made the reasoning of the latter decision peculiarly applicable Moreover where a statutory scheme of this nature affecting property rights operated in an inconsistent manner throughout the country by reason of that fact it also constituted an unjust attack on property rights as had been held by the court in Brennan v The Attorney General 1994 I L R M 355 It was accepted that as had been held in Dreher v Irish Land Commission 1984 I L R M 94 and also in O Callaghan v Commissioners of Public Works 1985 I L R M 364 the absence of compensation and a fortiori the absence of compensation based on market value does not necessarily amount to an unjust attack on private property However what distinguished the present legislation was the combination of a significant disparity between the compensation and market value and anomalies and inequities in the way in which the scheme would operate It was submitted that the present scheme also offended the principle of proportionality which had been developed in recent cases such as Cox v Ireland 1992 2 I R 503 and In re The Matrimonial Home Bill 1993 1994 1 I R 305 and which had been applied to the Articles protecting private property by Costello P in Daly v Revenue Commissioners 1995 3 I R 1 It was further submitted that the statutory scheme violated the guarantee of equality before the law While it was accepted that as had been held in Quinn s Supermarket v Attorney General 1972 I R 1 the guarantee was not absolute in its nature the somewhat narrow construction of Article 40 1 which had been adopted in that case i e that the qualifying words as human persons indicated that the inequality proscribed by the article was 2000 The Planning and Development Bill 1999 341 2 I R Supreme Court S C one based on matters such as race gender religion or political opinions had not found favour in later decisions of the court such as McKenna v An Taoiseach No 2 1995 2 I R 10 and Howard v Commissioners of Public Works 1994 1 I R 101 It was submitted that inequalities which unfairly or arbitrarily restricted a person s property rights or means of earning a livelihood or which made a person unfairly bear a disproportionate share of a burden which should be assumed by society as a whole were prohibited by Article 40 1 In the present case the legislation unfairly and invidiously discriminated between landowners who proposed to develop their land for housing and persons who do not intend to develop their land The latter category may simply be retaining the land as a long term investment without developing it and thereby be conferring no benefit on society Where that person s land is compulsorily acquired for housing by a local authority under the Housing Acts he will have a right to compensation at market value The person who desires to develop land and make housing available effectively pays a substantial penalty Counsel also relied on the different treatment for particular categories of person in the assessment of compensation to which reference has already been made as constituting further invidious discrimination Similar considerations applied to the failure to have any regard to the relative financial circumstances of the developer and the persons entitled to affordable housing and the different treatment of persons applying for housing development and commercial development It was finally submitted by counsel assigned by the court that Part V of the Bill violated the provisions of Article 15 2 vesting the sole and exclusive power of making laws for the State in the Oireachtas It was accepted that the provisions of s 94 5 a vi under which planning authorities in making an estimate of the requirement for affordable housing are to have regard to certain specified matters and such other matters as the planning authority considers appropriate or as may be prescribed for the purpose of this subsection were constitutionally valid It was appropriate it was said that while the Minister retained a power to direct planning authorities to take particular matters into account which had not been specified in the legislation the planning authority should also have a residual discretion to have regard to matters which might be of particular significance having regard to conditions in their area Counsel however contrasted that provision with s 93 3 which enables the planning authority to take into account the financial circumstances of eligible persons or those who might reasonably be expected to reside with them Although a person in need of accommodation whose net income would be inadequate to meet mortgage repayments as determined under subs 3 was prima facie treated as an 2000 The Planning and Development Bill 1999 342 2 I R Supreme Court S C eligible person subs 3 conferred on the planning authority a wide discretion as to the other financial circumstances of the person concerned which they could take into account The complete absence of any policy or principles in Part V as to how that discretion was to be exercised clearly violated Article 15 2 The same considerations applied to the failure to specify with precision what was meant by accommodation needs of eligible persons It was submitted that the constitutional frailty of s 93 3 was not cured by the power given to the Minister under s 100 1 to make regulations since that power was confined to regulations governing the determination of income for the purposes of s 93 The significance of the wide ranging powers thus vested in a planning authority counsel said was that the list of eligible persons entitled to affordable housing could become so large that the entire of the 20 reserved for housing for the special categories or affordable housing could be required in the case of every housing development although that was plainly not what was envisaged in the other provisions under Part V These defects in Part V counsel submitted could have been avoided by more precise statutory definitions of eligible persons which did not leave so large an area of discretion to planning authorities The Attorney General and counsel appearing with him submitted that the purpose of Part V of the legislation was two fold 1 to enable as many people as possible to own their own houses 2 to ensure that so far as possible the least well off members of society were not required by economic necessity to live in segregated areas It was pointed out that the first objective had formed part of the policy of successive governments since the foundation of the State and that the failure to meet the second objective had given rise to grave social problems in recent decades and that in the case of the second objective it had also been the policy of successive governments for a considerable period to bring it about It was submitted that to the extent that the submissions of counsel assigned by the court were based on the premise that the present difficulties being experienced in the provision of affordable housing were the result of inaction by central government or local authorities it was ill founded They said that the amount spent on what could be broadly described as social housing had been increasing in every year for the past four years and that it was proposed to expend sums in the order of six billion pounds on such housing over the next six years It was submitted that the development of the housing market has in recent years created two inter related problems First there has been an 2000 The Planning and Development Bill 1999 343 2 I R Supreme Court S C increasing demand for social housing by reason of increased population numbers and changes in society leading to more social units requiring separate housing It was said that the fact that this has occurred at a time when the cost of land is relatively high means that there is a decreasing stock of land for local authorities to acquire and build upon Secondly the rapid increase in the cost of housing has created particular problems for first time buyers Such people need affordable housing it was said to bridge the gap between what they can afford and what is available on the market This was demonstrated by the increase in house prices in recent years resulting in a gap between the mortgages which people can afford and their incomes It was said that failure to meet the increased demand for social housing would have implications for wage demands and consequent economic dislocation and would also threaten social cohesion It was submitted that the Bill including Part V enjoyed the presumption of constitutionality The court should not decide that Part V of the Bill or any part thereof was repugnant to the Constitution unless that repugnancy had been clearly established Article 43 2 1 recognised that the exercise of rights of private property ought in civil society to be regulated by the principles of social justice It was apparently conceded by counsel assigned by the court that the objectives already referred to were in that context constitutionally permissible The essential issue was as to whether in attaining those objectives the Oireachtas was entitled to provide for compensation in the manner prescribed by Part V or whether those provisions constituted an unjust attack on the private property rights of citizens within the meaning of Article 40 3 2 It was submitted that in approaching that question it was essential to bear in mind that the Bill in providing for the payment of compensation at a level which would admittedly be lower than the market value of the relevant portion of the land as it would normally be determined on a compulsorily acquisition was doing no more than requiring the landowner if he wished to develop the land to surrender some part of the enhanced value of his property which had resulted from the operation of a planning regime intended for the benefit of the community as a whole Thus the impugned provisions operated only where a person applied for permission to develop the land and related at most to 20 of the land Even in relation to that portion there was no question of the applicant not being compensated instead he was compensated at a level which left out of account some of the enhanced value of the land resulting from its being zoned for residential use The submissions of counsel assigned by the court amounted in effect to an argument that in the case of every interference with property rights even where mandated by the common good the acquiring authority 2000 The Planning and Development Bill 1999 344 2 I R Supreme Court S C should be required to compensate the owner at the level of market value That was wrong in principle and contrary to the jurisprudence of this court as reflected in Dreher v Irish Land Commission 1984 I L R M 94 and O Callaghan v Commissioners of Public Works 1985 I L R M 364 The provisions in the present case were clearly intended to ensure that those who quite legitimately wished to realise the potential of their land should be required to contribute a relatively modest proportion of the enhanced value resulting from planning decisions including the rezoning of the land to the attainment of an important social objective That was not only a permissible restriction on the exercise of private property rights but was also reasonably proportionate to the end sought to be achieved and hence could not be said to constitute an unjust attack on property rights Cases such as Blake v The Attorney General 1982 I R 117 and Brennan v The Attorney General 1994 I L R M 355 were clearly distinguishable it was submitted since in those cases it was not simply the absence of compensation which fatally flawed the relevant legislation In Blake v The Attorney General there was no provision whatever for compensation for the losses sustained by the landlords and in addition the freezing of the rents which was accepted by the court as being a legitimate social objective in the context of Article 43 had been effected in an arbitrary and a discriminatory manner which could not be rationally justified In Brennan v The Attorney General the rating system had been demonstrated to be an anomalous and anachronistic form of taxation imposed on property owners which again could not be rationally justified It was submitted that in the present case the statutory scheme had been carefully designed so as to ensure that the landowners who as a condition of developing their land for housing were required to cede 20 or less of the land in order to provide affordable housing or housing for special categories received at the minimum compensation equivalent to the existing use value of the land That constituted what could be described as the essential value of the land and at worst what the owner was losing in respect of that portion was some of the enhanced value deriving from planning decisions taken for the benefit of the community In addition care had been taken to ensure that those who bought land before the provisions of the Bill were published got back at least what they had paid for the land together with interest payments to reflect the investment they had made in the land In addition the Bill sought to ensure that relatively small scale development was not affected by its provisions Far from being arbitrary or discriminatory it was submitted that these provisions represented a rational and appropriate scheme of compensation for the persons affected They further submitted that having regard to the decisions of the High Court in Murtagh Properties v Cleary 1972 I R 330 Nova Media Services Ltd v Minister for Posts and Telegraphs 1984 I L R M 161 and Attorney General v Paperlink Ltd 1984 I L R M 373 the court was entitled to have regard to the Directive Principles of Social Policy set out in Article 45 and in particular the requirement that 2 The State shall in particular direct its policy towards securing â ii That the ownership and control of the material resources of the community may be so distributed amongst private individuals and the various classes as best to subserve the common good As to the submission that these provisions also violated the constitutional guarantee of equality before the law it was submitted this was not and could never have been intended to be an absolute guarantee of equality in all circumstances Even if it could be said that the construction adopted of Article 40 1 in Quinn s Supermarket v Attorney General 1972 I R 1 was somewhat narrow it would be extending the application of the guarantee far beyond what was envisaged to hold that the distinctions necessarily drawn by Part V of the Bill between different categories of landowners offended the guarantee of equality before the law As to the argument based on what was claimed to be the unequal treatment afforded to landowners on the one hand and eligible persons on the other hand it was submitted that the Oireachtas had arrived at a fair and reasonable balance between the competing interests involved Clear legislative guidelines had been given as to the basis on which persons could be classified as eligible persons and far from ignoring the circumstances of individual landowners care had been taken to exclude entirely from the ambit of the Bill relatively small scale development As to the submission that the degree of discretion afforded to the planning authorities violated Article 15 2 of the Constitution as being an impermissible form of delegated legislation it was said that this was wholly unsupported by the decisions of this court and the High Court In Cityview Press v An Chomhairle Oiliúna 1980 I R 381 the empowering legislation had not indicated what factors were to be taken into account by AnCo in imposing particular levies on employers and it was held by McMahon J in the High Court that this did not offend the provisions of Article 15 2 His decision to that effect had not been appealed to this court By contrast in Laurentiu v Minister for Justice 1999 4 I R 26 this court had found the power given to the Minister for Justice to make orders in respect of aliens so wide ranging as to constitute an impermissible abdication by the Oireachtas of its legislative role That could not conceivably be said to the position in the present case 2000 The Planning and Development Bill 1999 346 2 I R Supreme Court S C Conclusions It was held by the former Supreme Court In re The Offences Against the State Amendment Bill 1940 1940 I R 470 that a bill referred to the court by the President pursuant to Article 26 enjoys the same presumption of constitutionality as an Act of the Oireachtas No argument has been advanced to the court in this case that that view of the law which was reaffirmed in other references before the former court and this court was in any way erroneous It follows that what has sometimes been called the double construction rule applies and that if in respect of any provision or provisions of Part V of the Bill two or more constructions are reasonably open one of which is constitutional and the other is unconstitutional it must be presumed that the Oireachtas intended only the constitutional construction see McDonald v Bord na gCon No 2 1965 I R 217 It also follows that in accordance with the decision of the court in East Donegal Co operative v Attorney General 1970 I R 317 it is to be presumed that the Oireachtas intended that any proceedings procedures discretions or adjudications permitted provided for or prescribed by Part V of the Bill would be conducted in accordance with the principles of constitutional justice and that any departure from those principles would be restrained or corrected by the courts Articles 40 3 2 and 43 Article 43 of the Constitution under the heading Private Property provides that 1 1 The State acknowledges that man in virtue of his rational being has the natural right antecedent to positive law to the private ownership of external goods 2 The State accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer bequeath and inherit property 2 1 The State recognises however that the exercise of the rights mentioned in the foregoing provisions of this Article ought in civil society to be regulated by the principles of social justice 2 The State accordingly may as occasion requires delimit by law the exercise of the said rights with a view to reconciling their exercise with the exigencies of the common good Article 40 3 provides

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  • Act 1997 provides that a decision of the High Court on an appeal or reference under the section shall be final and conclusive In other instances the Oireachtas has regulated the appellate jurisdiction by requiring leave of the High Court before an appeal to the Supreme Court e g Courts Supplemental Provisions Act 1961 s 52 2 or by confining the appeal to a point of law e g Patents Act 1992 s 96 Furthermore the wording of s 5 3 a follows the language of s 19 of the Local Government Planning and Development Act 1992 A similar formula has also been used in other instances as for example in the Irish Take Over Panel Act 1997 Moreover it was submitted that it has not been heretofore suggested that Article 34 4 3 placed any implicit limitations on the right of the Oireachtas to impose restrictions or exceptions to 2000 The Illegal Immigrants Trafficking Bill 1999 382 2 I R Supreme Court S C this court s appellate jurisdiction In such cases as Minister for Justice v Wang Zhu Jie 1993 I R 426 and Irish Asphalt Ltd v An Bord Pleanà la 1996 2 I R 179 this court gave effect to statutory provisions regulating its appellate jurisdiction In both cases the court found that as the putative appellants had not been granted prior leave by the High Court the Supreme Court lacked jurisdiction In Irish Asphalt Barrington J drew attention at p 186 to the underlying policy of the Act of 1992 when he observed Finally it appears to me that the interpretation of the sub section of the Act of 1992 given above accords best with what appears to have been the policy of the Act of 1992 Clearly the purpose of this Act was to speed up the planning process by shortening litigation and by eliminating applications for judicial review which were devoid of substance The constitutionality of the restriction on an appeal to the Supreme Court was not called in question and it was submitted that similar considerations apply in the present case Finally no authority was advanced for the proposition that a restriction by the Oireachtas on the right of appeal to the Supreme Court must be objectively justified There is nothing in the Constitution from which a requirement for objective justification could be deduced General Issues Before dealing with the issues which have arisen in relation to the specific provisions of s 5 there are some matters of a more general nature which it is appropriate to address at this point The court has earlier in this judgment reaffirmed the principle that the presumption of constitutionality applies to a Bill referred to it under Article 26 of the Constitution It has also been pointed out that as a result the principles laid down in East Donegal Co Operative v Attorney General 1970 I R 317 are relevant in considering the constitutionality of the Bill The constitutional status of non nationals The State â must have very wide powers in the interest of the common good to control aliens their entry into the state their departure and their activities within the State This statement of the law by Costello J in Pok Sun Shum v Ireland 1986 I L R M 593 at p 599 reflects an inherent element of State sovereignty over national territory long recognised in both domestic and international law 2000 The Illegal Immigrants Trafficking Bill 1999 383 2 I R Supreme Court S C For this reason in the sphere of immigration its restriction or regulation the non national or alien constitutes a discrete category of persons whose entry presence and expulsion from the State may be the subject of legislative and administrative measures which would not and in many of its aspects could not be applied to its citizens In Osheku v Ireland 1986 I R 733 where the plaintiff failed in his claim that the Aliens Act 1935 was unconstitutional Gannon J said at p 746 The control of aliens which is the purpose of the Aliens Act 1935 is an aspect of the common good related to the definition recognition and the protection of the boundaries of the State That it is in the interests of the common good of a State that it should have control of the entry of aliens their departure and their activities and duration of stay within the State is and has been recognised universally and from earliest times There are fundamental rights of the State itself as well as fundamental rights of the individual citizens and the protection of the former may involve restrictions in circumstances of necessity on the latter The integrity of the State constituted as it is of the collective body of its citizens within the national territory must be defended and vindicated by the organs of the State and by the citizens so that there may be true social order within the territory and concorde maintained with other nations in accordance with the objectives declared in the preamble to the Constitution This statement of Gannon J has been cited with approval in a number of judgments of this court including that of Keane J as he then was in Laurentiu v Minister for Justice 1999 4 I R 42 where he said at p 90 It is clear that altogether apart from the provisions of the Act of 1935 and any preceding legislation Saorstà t à ireann à ireann as a sovereign state enjoyed the power to expel or deport aliens from the State for the reasons set out in the judgment of Gannon J in Osheku v Ireland â It is of course the case that in modern times both here and in other common law jurisdictions the exercise of the power is regulated by statute but that does not affect the general principle that the right to expel or deport aliens inheres in the State by virtue of its nature and not because it has been conferred on particular organs of the State by statute Both counsel assigned by the court and counsel for the Attorney General made submissions in the light of their particular status as to the nature and extent to which persons seeking asylum or refugee status enjoy the protection of certain rights under the Constitution in accordance with the principles of natural justice and constitutional justice Counsel assigned by the court submitted that despite the undoubted power of the State over non nationals including asylum seekers such persons are not without 2000 The Illegal Immigrants Trafficking Bill 1999 384 2 I R Supreme Court S C rights while they are within the jurisdiction of the State It is only necessary to examine this question in this part of the judgment to the extent that such rights are relevant to the interpretation of s 5 of the Bill The rights including fundamental rights to which non nationals may be entitled under the Constitution do not always coincide with the rights protected as regards citizens of the State the right not to be deported from the State being an obvious and relevant example Counsel assigned by the court submitted that among the rights of a non national which have been recognised by the courts are the following i If detained a right under Article 40 4 2 of the Constitution to apply to the High Court to question the legality of his or her detention The Article is clearly not limited to citizens but applies to any person ii A right of access to the courts to enforce his or her legal and constitutional rights iii In dealing with applications for refugee status or asylum a right to fair procedures and to the application of natural and constitutional justice iv A right to require that any measures taken against a non national by the State in the exercise of its rights and powers are exercised in a constitutionally valid manner and in accordance with laws which are not repugnant to the Constitution Counsel also submitted that non nationals enjoy a constitutional right to equal treatment in the sense that any difference in treatment must be justified by some legitimate government objective It was also submitted that non nationals were entitled to the unspecified personal rights guaranteed by Article 40 3 2 of the Constitution and a right of reasonable access to legal advisors Counsel for the Attorney General although they differed materially in respect of certain of the submissions made by counsel assigned by the court on this subject were in general agreement in their submissions that the rights referred to above are enjoyed by non nationals as well as citizens Counsel assigned by the court are correct in the submission that our courts have recognised the right of non citizens to apply for release from custody pursuant to Article 40 4 2 on the grounds that the person concerned is not being detained in accordance with the law In State Kugan v O Rourke 1985 I R 658 Egan J sitting as a judge of the High Court stated at p 660 It was suggested by the respondent that the remedy of habeas corpus might not properly be sought by the prosecutors as they are not citizens of the State but under Article 40 s 4 sub s 2 of the Constitution 2000 The Illegal Immigrants Trafficking Bill 1999 385 2 I R Supreme Court S C it seems clear that such relief can be sought by any person and I so hold Suffice it to add that this court in The State Trimbole v The Governor of Mountjoy Prison 1985 I R 550 upheld the order of the High Court directing that the prosecutor be released from detention pursuant to Article 40 4 2 the prosecutor being an Australian citizen and a non national It would be contrary to the very notion of a state founded on the rule of law as this State is and one in which pursuant to Article 34 justice is administered in courts established by law if all persons within this jurisdiction including non nationals did not in principle have a constitutionally protected right of access to the courts to enforce their legal rights In Murphy v Greene 1990 2 I R 566 at p 578 Griffin J observed it is beyond question that every individual be he a citizen or not has a constitutional right of access to the courts Stated in its broadest terms this is a right to initiate litigation in the courts â It may be that in certain circumstances a right of access to the courts of non nationals may be subject to conditions or limitations which would not apply to citizens However where the State or State authorities make decisions which are legally binding on and addressed directly to a particular individual within the jurisdiction whether a citizen or non national such decisions must be taken in accordance with the law and the Constitution It follows that the individual legally bound by such a decision must have access to the courts to challenge its validity Otherwise the obligation on the State to act lawfully and constitutionally would be ineffective For the purpose of this reference the court is satisfied that non nationals have a constitutional right of access to challenge the validity of any of the decisions or other matters referred to in s 5 1 taken in relation to him or her Similar considerations arise with regard to a non national s right to fair procedures and to the application of natural and constitutional justice where he or she has applied for asylum or refugee status The Refugee Act 1996 and the Immigration Act 1999 confer and regulate the legal right of non nationals to apply for asylum or refugee status Persons charged with taking decisions pursuant to those Acts are engaged in the administration of the law of the State As regards judicial review of those decisions the court adopts the following statement of the law by Barrington J in The State McFadden v Governor of Mountjoy Prison No 1 1981 I L R M 113 at p 117 The substantive rights and liabilities of an alien may be different to those of a citizen The alien for instance may not have the right to vote or may be liable to deportation But when the Constitution prescribes basic fairness of procedures in the administration of the law it 2000 The Illegal Immigrants Trafficking Bill 1999 386 2 I R Supreme Court S C does so not only because citizens have rights but also because the courts in the administration of justice are expected to observe certain forms of due process enshrined in the Constitution Once the courts have seisin of a dispute it is difficult to see how the standards they should apply in investigating it should in fairness be any different in the case of an alien than those to be applied in the case of a citizen In that case Barrington J was concerned with fairness of procedures in the administration of law by the courts In this reference the court is not concerned with the constitutional principles which should apply in the operation of procedures envisaged by the Refugee Act 1996 and the Immigration Act 1999 There is a presumption that those Acts are applied in accordance with those principles The court is concerned only with the provisions of s 5 determining the procedure by which the validity of a decision or other matter governed by s 5 1 may be challenged before the courts The court is satisfied that in the case of applications to the High Court to challenge the validity of such decisions or other matters a non national is entitled to the same degree of natural justice and fairness of procedures as a citizen Legal aid The court received observations from counsel on both sides concerning the availability of legal aid to persons seeking asylum or refugee status While they are not in agreement as to the efficacy of the legal aid services provided it is not in question that such a service is to some extent in place and available to persons seeking asylum or refugee status It is clear that the Legal Aid Board has established under its aegis a Refugee Legal Service intended to provide legal advice and assistance to applicants at all stages of the asylum process including representation before an appeals authority and in relation to humanitarian leave to remain deportation issues and judicial review The service has established its headquarters in Lower Mount Street Dublin Since its establishment it has augmented its staff to meet a growth in the volume of work and with a view to directing its services to asylum seekers dispersed throughout the country Counsel assigned by the court have contended that the legal aid service available to persons who have applied for asylum or refugee status is so inadequate and ineffective that it constitutes a denial of their constitutional right to access to legal advice and its inadequacy compounds the obstacle created by a fourteen day judicial review limitation period for access to the courts For reasons stated later in the judgment it is not necessary for the purposes of this reference to evaluate the quality and efficacy of the legal aid service available to non nationals 2000 The Illegal Immigrants Trafficking Bill 1999 387 2 I R Supreme Court S C Processing of asylum cases Neither is it necessary or relevant to review in detail the various procedures according to which an application for asylum or refugee status is dealt with and finally determined pursuant to the relevant statutes and the arrangements notified to the United Nations High Commissioner on Refugees under what is commonly referred to as the Hope Hanlon Letter Section 5 of the Bill contains no provision governing the manner in which the process is to be carried out being concerned only with the procedure by which the validity of decisions and other matters decided in that process may be challenged in the High Court It is sufficient to note that the process irrespective of the category of case which may be involved is a lengthy one commencing usually with an initial application and interview the completion of a detailed questionnaire by the applicant followed in most cases by a further detailed interview a decision an appeal process and a final decision Self evidently the applicant is directly and personally involved throughout the process It is also the case that where the minister proposes to make a deportation order pursuant to s 3 of the Immigration Act 1999 he or she must subject to certain limited exceptions notify the person concerned of the proposal and give that person fifteen working days in effect almost three weeks to make representations Accordingly such a person will have nearly three weeks notice of the fact that his or her application has not been successful and that it is proposed to make a deportation order unless the minister in the light of the submissions decides on certain grounds usually referred to as humanitarian grounds not to proceed with the deportation In any event the unsuccessful applicant will have become aware prior to the appeals stage of the negative position adopted by the relevant State authorities to his or her application Section 5 1 Judicial review Article 36 of the Constitution provides inter alia that Subject to the foregoing provisions of this Constitution relating to the Courts the following matters shall be regulated in accordance with law that is to say iii the constitution and organisation of the said Courts â and all matters of procedure It is within the competence of the Oireachtas to regulate by law by primary legislation or in the due exercise of its powers by way of secondary legislation such as statutory instruments procedural matters including procedural remedies before the courts provided constitutional rights 2000 The Illegal Immigrants Trafficking Bill 1999 388 2 I R Supreme Court S C and other provisions of the Constitution relating to the courts are not infringed Section 5 1 specifies judicial review as the only procedure by which a person may question the validity of any decision or other matters referred to at paragraphs a n of the subsection All of those matters fall to be decided in an administrative process by persons authorised by law to decide them It is not the function of the courts to decide such matters anew on their merits but to determine the validity of the decisions taken as a question of law Should a person seek to challenge the validity of any of the matters covered by the subsection he or she will not be limited as to the grounds upon which the validity of a decision may be attacked by virtue of being confined to judicial review as the only form of remedy Given that the jurisdiction of the courts is limited to reviewing whether any such matter has been decided in accordance with law the grounds for challenging such validity would not be any more extensive under other procedures such as proceedings commenced by plenary summons Indeed judicial review is a remedy which is regularly opted for by persons seeking to challenge the validity of administrative decisions The court concludes that judicial review as such is not an inadequate remedy Section 5 2 a Fourteen days limitation Subsection 2 regulates the manner in which an application for leave to apply for judicial review in respect of any of the matters referred to in subs 1 is to be made In doing so the subsection sets out certain conditions with which an application for leave to apply for judicial review must comply Among these conditions is the requirement in para a that the application for leave be made within the period of fourteen days from the date on which the person was notified of the decision or other matter concerned This period may be extended if the High Court considers that there is good and sufficient reason for doing so As the court has already acknowledged in this judgment non nationals have a constitutional right of access to the courts to challenge the validity of any decision or other matter referred to in s 5 1 They also enjoy constitutional right to fair procedures in such proceedings Section 5 of the Act contains no provision regulating or governing the procedures to be followed or the processes by which applications for asylum or refugee status are determined It is concerned only with judicial review of the relevant decisions in the High Court Counsel assigned by the court made what might be described as a general submission that a whole range of factors many of them peculiar to the position of non nationals seeking asylum or refugee status in this country 2000 The Illegal Immigrants Trafficking Bill 1999 389 2 I R Supreme Court S C result in judicial review with a fourteen day limitation even with the court s discretion to extend the time not providing in practice a useful or effective means of access to the courts to assert their legal rights This range of factors has been outlined earlier in the judgment and the thrust of counsel s argument in this context was that all of them or many of them taken together were such that it would in practice be impossible or virtually impossible for the persons concerned in many cases to be in a position to prepare and in particular to bring judicial review within the fourteen day period Certainly non nationals who enter the State and seek asylum or refugee status face difficulties which are special to them In many if not most cases they will be strangers to its culture its way of life and its languages They may be located a good distance away from the centre where decisions concerning them are taken and may be completely ignorant of the legal system These and many other factors could combine to make it difficult to pursue applications for asylum or refugee status or which is what the court is concerned with in this reference to seek judicial review of administrative decisions affecting them Indeed counsel for the Attorney General conceded that one could by no means exclude a combination of circumstances in a particular case which could result in an applicant not finding it possible to bring an application for leave to seek judicial review within the fourteen day period Counsel assigned by the court cited the judgment of Costello J in Brady v Donegal County Council 1989 I L R M 282 who said at p 289 that a two month time limit for challenging planning decisions with no possibility of extension in exceptional cases was a â serious restriction on the exercise of the plaintiff s constitutional rights â which cannot reasonably be justified Unmodified the sub section is unreasonable being unreasonable it is unconstitutional and I will so declare However as counsel readily acknowledged that was a case in which there was no provision which permitted the courts to extend the time for the bringing of judicial review proceedings by affected persons who through no fault of their own were unaware of relevant facts until after the expiration of the limitation period It should be noted that in that case Costello J found that the public interest in establishing at an early date certainty in the decisions of planning authorities and the avoidance of unnecessary costs and wasteful appeals procedures could well justify the imposition of stringent time limits for the institution of court proceedings It was simply the absence of any modification of the strict limitation period by way of the kind of saver 2000 The Illegal Immigrants Trafficking Bill 1999 390 2 I R Supreme Court S C referred to above that led the learned trial judge to hold that the provision was unreasonable and unconstitutional Although s 5 2 a of the Bill contains the express provision whereby the court may extend the time for bringing judicial review beyond the fourteen days where there is good and sufficient reason for doing so counsel assigned by the court submitted that this power had little or no significance as to the constitutional validity of s 5 on two grounds Firstly for all the reasons already outlined it seems inevitable that a very large number perhaps even a majority of applications would have been brought outside the fourteen day period A specified limitation period which is so short that it will inevitably trigger the invocation of a judicial power of extension on many occasions must in its nature be flawed and fundamentally unjust Secondly it was submitted that the difficulty in the case of asylum seekers is that many of them might well find themselves deported before any application could be made on their behalf to the court for an extension of time This is particularly so where there is no minimum period prescribed by law before a deportation can take place Before addressing any other arguments it should be said that in the view of the court these two last mentioned grounds are not a valid basis on which to attack the efficacy of the discretion granted to the High Court to extend the period of fourteen days in appropriate circumstances for the bringing of an application for leave to seek judicial review Whether a large number or even a majority of persons seeking leave to apply for judicial review will find it necessary also to apply for an extension of time is a matter for speculation In any event such a mathematical approach is not a basis on which to assess the validity or efficacy of such a provision The courts are regularly requested to extend the time for the taking of certain steps in proceedings for an appeal from one court to another and indeed for the bringing of judicial review itself The extension of time for the filing of pleadings by agreement or by leave of the court may under a relevant rule occur in a very large number of cases but this has never been regarded as undermining the constitutional validity of the rule in question More fundamental however is the fact that a person seeking judicial review pursuant to s 5 must in the first instance apply to the High Court for leave to apply for judicial review irrespective of any time limit for doing so If such a person has also to apply for an extension of the time within which to make the application on the grounds that there is good and sufficient reason for such an extension that cannot be said to undermine access to the court Indeed by giving that very discretion to the court to extend the time access to the court is enhanced The second of these grounds of objection concerns only a decision to deport and its implementation before the person in question has made or 2000 The Illegal Immigrants Trafficking Bill 1999 391 2 I R Supreme Court S C has had an opportunity to make an application for leave to apply for judicial review particularly when there is no minimum time period before which a deportation decision can be implemented Apart from the fact that it is not in issue that the average period between a decision to deport and actual deportation is eleven weeks this is an objection which could be in principle raised in respect of any period of limitation including for example the six months limitation period of general application which it has not been suggested would be unconstitutional As a preliminary observation it should be recalled that a person who is the subject of a deportation order will have become aware in the course of the extended processing of his or her application that he or she is on real risk of becoming the subject of a deportation order In addition the person concerned will in the vast majority of cases have received almost three weeks notice of the intention to make the deportation order Once the deportation order has been notified to the person concerned there are fourteen days from the date of notification or deemed notification as the case may be within which to apply for judicial review and this in turn is subject to an extension at the discretion of the court There is nothing in the section which would prohibit the person concerned from applying for an extension of the fourteen day period before that actual fourteen day period had elapsed It must be remembered that the statutory power to make a deportation order and its implementation derives from s 3 of the Immigration Act 1999 The court has already held that a non national has a constitutional right of access to the courts to challenge the validity of a decision such as a deportation order The second objection raised by counsel assigned by the court is to the effect that if the power to deport under the Act of 1999 is exercised in a particular fashion particularly when that Act or some other Act does not contain a provision preventing deportation before a minimum period has elapsed there would be a denial of that person s right of access to the courts Whether a person is entitled to remain within the State for a minimum period of time in order to exercise a constitutional right to bring judicial review proceedings is a matter to be determined in appropriate proceedings in the High Court concerning the powers of deportation deriving from the Act of 1999 Section 5 of the Bill does not purport to affect the exercise by the State of its power or its discretions in the implementation of a deportation order On the contrary it allows for a means of access to the courts to challenge its validity 2000 The Illegal Immigrants Trafficking Bill 1999 392 2 I R Supreme Court S C Objective justification and proportionality Counsel assigned by the court submitted that the fourteen day limitation period even with the power to extend time was a restriction on the constitutional right of access to the courts which must be objectively justified by some State objective or imperative of compelling importance Furthermore it was submitted that in so far as s 5 2 seeks to strike a balance between the competing interest of the right of access to the courts and any public interest in speedy disposal of cases of this nature the principle of proportionality as set out by Costello J in Heaney v Ireland 1994 3 I R 593 should be applied The application of this principle means that the right of access to the courts should only be limited to the extent necessary to achieve the objective in question In this case none of the reasons advanced by counsel for the Attorney General is capable of justifying it and in any case a longer period within which to make applications for judicial review will still meet the same objectives Counsel for the Attorney General in the course of their submissions advanced various objectives which the fourteen day limitation period was designed to serve As already noted counsel assigned by the court quoted extensively from the Dà il Debates as regards these objectives As Costello J stated in Molyneux v Ireland 1997 2 I L R M 241 at p 244 â it is not necessary for the court to search the parliamentary debates to ascertain the arguments used to justify the enactment of the measure it will usually be possible for the court to make reasonable inferences from the provisions of the statute itself and the facts of the case In that case the court was concerned with the basis for the different treatment of different categories of persons having regard to Article 40 1 Adopting a similar approach the court is satisfied that the objectives of the Bill as regards the fourteen day limitation period can be reasonably inferred from the provisions of the Bill There is a well established public policy objective that administrative decisions particularly those taken pursuant to detailed procedures laid down by law should be capable of being applied or implemented with certainty at as early a date as possible and that any issue as to their validity should accordingly be determined as soon as possible Brady v Donegal County Council 1989 I L R M 282 Irish Asphalt Ltd v An Bord Pleanà la 1996 2 I R 179 and K S K Enterprises Ltd v An Bord Pleanà la 1994 2 I R 128 at p 135 Furthermore it may be inferred from the Bill and the surrounding circumstances that the early establishment of the certainty of the decisions in question is necessary in the interests of the proper management and treatment of persons seeking 2000 The Illegal Immigrants Trafficking Bill 1999 393 2 I R Supreme Court S C asylum or refugee status in this country The early implementation of decisions duly and properly taken would facilitate the better and proper administration of the system governing seekers of asylum for both those who are ultimately successful and ultimately unsuccessful For these reasons the court is of the view that the State has a legitimate interest in prescribing procedural rules calculated to ensure or promote an early completion of judicial review proceedings of the administrative decisions concerned However in doing so the State must respect constitutional rights and in particular that of access to the courts Accordingly the court is of the view that there are objective reasons concerning the public interest in the certainty of the validity of the administrative decisions concerned on the one hand and the proper and effective management of applications for asylum or refugee status on the other Such objective reasons may justify a stringent limitation of the period within which judicial review of such decisions may be sought provided constitutional rights are respected The test is not whether a more extended period of time within which to seek leave to apply for judicial review whether slightly longer or very much longer would permit the same policy objectives to be attained As already mentioned procedures of the courts may be regulated by law It is a matter of policy and discretion for the legislature to choose the appropriate limitation period The legislature is not obliged to choose the longest possible period that might be thought consistent with the policy objective concerned However in exercising that discretion the legislature must not undermine or compromise a substantive right guaranteed by the Constitution such as the right of access to the courts Where a limitation period is so restrictive as to render access to the courts impossible or excessively difficult it may be considered unreasonable in the sense that Costello J found the rigid rule in Brady v Donegal County Council 1989 I L R M 282 to be unreasonable and therefore unconstitutional In applying that test in this case the court acknowledges that there are likely to be cases perhaps even a very large number of cases in which for a range of reasons or a combination of reasons persons through no fault of their own as in Brady v Donegal County Council are unable to apply for leave to seek judicial review within the appeal limitation period namely fourteen days This is a situation with which the courts deal on a routine basis for other limitation periods The fourteen day time limit envisaged by the Bill is not the shortest with which the courts have had to deal Moreover the discretion of the court to extend the time to apply for leave where the applicant shows good and sufficient reason for so doing is wide and ample enough to avoid injustice where an applicant has been 2000 The Illegal Immigrants Trafficking Bill 1999 394

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  • charge 8 For the avoidance of doubt it is hereby declared that a regulations made under subsection 2 and in force immediately before the enactment of this subsection i shall continue in force on and after that commencement and may be amended or revoked and ii subject to paragraph b do not apply to persons with full eligibility and b such regulations may be amended on or after that commencement to apply in whole or in part to persons with full eligibility 9 Where in patient services have been provided to a person for a a period of not less than 30 days or b periods aggregating not less than 30 days within the previous 12 months then c a charge imposed under regulations made under subsection 2 on or after the enactment of this subsection for the further provision of any in patient services to that person shall be charged at a weekly rate and d such weekly rate shall not exceed 80 per cent of the maximum of the weekly rate of the old age non contributory pension within the meaning of the Social Welfare Acts 10 A period of 30 days referred to in subsection 9 begins to run immediately the person concerned is provided with in patient services and irrespective of whether during all or any part of that period the charge referred to in that subsection is not payable by virtue of the operation of subsection 3 or 4 11 Notwithstanding section 51 in this section in patient services in relation to any regulations made under subsection 2 on or after the enactment of this subsection means the institutional services referred to in the definition of in patient services in section 51 only insofar as those institutional services consist of the maintenance of a person relevant charge means a charge 2005 The Health Amendment No 2 Bill 2004 157 1 I R Supreme Court S C a imposed or purporting to be imposed under regulations made or purporting to be made under subsection 2 and b paid at any time before the enactment of this subsection 2 1 This Act may be cited as the Health Amendment No 2 Act 2004 2 The collective citation the Health Acts 1947 to 2004 shall include this Act Section 53 of the Act of 1970 6   As can be seen the Bill is limited to amending s 53 of the Act of 1970 Section 53 of that Act provides as follows 1 Save as provided for under subsection 2 charges shall not be made for in patient services made available under section 52 2 The Minister may with the consent of the Minister for Finance make regulations a providing for the imposition of charges for in patient services in specified circumstances on persons who are not persons with full eligibility or on specified classes of such persons and b specifying the amounts of the charges or the limits to the amounts of the charges to be so made Section 53 2 to 11 in consolidated form 7   The terms of the provisions of the Bill since it is confined to amending and adding to s 53 of the Act of 1970 can be more readily appreciated if s 53 2 and the ensuing subsections are read in an amended and consolidated form which at the risk of some repetition would provide as follows 2 Notwithstanding anything in the Health Acts 1947 to 2004 but subject to subsections 3 4 and 9 the Minister shall with the consent of the Minister for Finance make regulations a providing for the imposition of charges for in patient services in specified circumstances on persons to whom the in patient services are provided or on specified classes of such persons and b specifying the amounts of the charges or the limits to the amounts of the charges to be so made 3 A charge imposed under regulations made under subsection 2 on or after the enactment of this subsection is not payable where the in patient services concerned are provided to a a person under 18 years of age 2005 The Health Amendment No 2 Bill 2004 158 1 I R Supreme Court S C b a woman in respect of motherhood c a person detained involuntarily under the Mental Health Acts 1945 to 2001 d a person who i is in a hospital for the care and treatment of patients with acute ailments including any psychiatric ailment and ii requires medically acute care and treatment in respect of any such ailment or e a person who pursuant to section 2 of the Health Amendment Act 1996 in the opinion of the chief executive officer of a health board has contracted Hepatitis C directly or indirectly from the use of Human Immunoglobulin Anti D or the receipt within the State of another blood product or a blood transfusion 4 The chief executive officer of a health board may reduce or waive a charge imposed on a person under regulations made on or after the enactment of this subsection if the chief executive officer is of the opinion that having regard to the financial circumstances of that person including whether or not that person has dependants it is necessary to do so in order to avoid undue financial hardship in relation to that person 5 Subject to subsection 6 it is hereby declared that the imposition and payment of a relevant charge is and always has been lawful 6 Subsection 5 shall not apply in the case of a relevant charge which is the subject of civil proceedings a instituted on or before 14 December 2004 and b for the recovery of the relevant charge 7 Subsection 5 is in addition to and not in derogation of any other ground whether under an enactment or rule of law which may be raised in any civil proceedings including civil proceedings referred to in sub section 6 to debar the recovery of a relevant charge 8 For the avoidance of doubt it is hereby declared that a regulations made under subsection 2 and in force immediately before the enactment of this subsection i shall continue in force on and after that commencement and may be amended or revoked and ii subject to paragraph b do not apply to persons with full eligibility and 2005 The Health Amendment No 2 Bill 2004 159 1 I R Supreme Court S C b such regulations may be amended on or after that commencement to apply in whole or in part to persons with full eligibility 9 Where in patient services have been provided to a person for a a period of not less than 30 days or b periods aggregating not less than 30 days within the previous 12 months then c a charge imposed under regulations made under subsection 2 on or after the enactment of this subsection for the further provision of any in patient services to that person shall be charged at a weekly rate and d such weekly rate shall not exceed 80 per cent of the maximum of the weekly rate of the old age non contributory pension within the meaning of the Social Welfare Acts 10 A period of 30 days referred to in subsection 9 begins to run immediately the person concerned is provided with in patient services and irrespective of whether during all or any part of that period the charge referred to in that subsection is not payable by virtue of the operation of subsection 3 or 4 11 Notwithstanding section 51 in this section in patient services in relation to any regulations made under subsection 2 on or after the enactment of this subsection means the institutional services referred to in the definition of in patient services in section 51 only insofar as those institutional services consist of the maintenance of a person relevant charge means a charge a imposed or purporting to be imposed under regulations made or purporting to be made under subsection 2 and b paid at any time before the enactment of this subsection The Bill in general terms 8   By way of introduction it may be said that the Bill is confined to the making of amendments to s 53 of the Health Act 1970 The subject matter of the Bill is in turn confined to the payment of certain charges by certain categories of persons in most cases elderly persons of limited means who will benefit in the future or have benefited in the past from being maintained in a hospital or home by a health board In the former instance the relevant provisions operate prospectively and in the latter retrospectively 9   There are two sections in the Bill Section 1 contains the essence of the Bill and provides for an amendment to s 53 2 of the Health Act 1970 and 2005 The Health Amendment No 2 Bill 2004 160 1 I R Supreme Court S C by way of insertion the addition to that section of nine new subsections Section 2 of the Bill simply provides for the short title and the inclusion of the Bill in the collective citation the Health Acts 1947 to 2004 in respect of which no issue arises Accordingly only the constitutionality of the amending provisions contained in s 1 are in issue The context and full implications of these provisions are fully examined subsequently in this judgment Prospective effect 10   Section 1 a of the Bill amends s 53 2 of the Act of 1970 so as to require the Minister to make regulations for the imposition of charges in certain circumstances for in patient services provided in the future in so far as they consist of the maintenance of a person in a home or hospital by a health board Section 1 b provides for the insertion after s 53 2 of the Act of 1970 of certain new subsections which govern inter alia the category of persons on whom such charges may be imposed the circumstances where such charges may be imposed and their maximum level namely 80 of the maximum of the weekly rate of the old age non contributory pension 11   The new power given to the Minister to impose charges and the provisions governing the use of that power concern only the imposition of a charge for the provision of the service in question in the future In addition to these provisions there is a provision which confers on the chief executive officer of a health board a discretion to reduce or waive a charge payable pursuant to such regulations where the full imposition of the charge would give rise to undue hardship in an individual case 12   The provisions which would have prospective effect only taking account of the amendments of the Bill are s 53 2 of the Act of 1970 as amended by the Bill and subss 3 4 9 10 and 11 insofar as the latter subsection defines in patient services of that section as inserted by the Bill Retrospective effect 13   The second object of the Bill is to declare as lawful and as always having been lawful certain charges for in patient services which had been imposed or purported to be imposed in the past on and paid by certain persons pursuant to regulations made or purporting to be made under s 53 2 of the Act of 1970 even though there has been admittedly no lawful authority for the imposition of such charges This is the retrospective aspect of the Bill It is a special feature of the retrospective provisions of the Bill that they seek to validate not only charges imposed without lawful 2005 The Health Amendment No 2 Bill 2004 161 1 I R Supreme Court S C authority but charges that were imposed for an in patient service which the Oireachtas in s 53 1 had decreed should be provided free of any charge to those concerned 14   The retrospective provisions of the Bill are subss 5 6 7 and 11 insofar as the last mentioned subsection defines relevant charge of s 53 of the Health Act 1970 as inserted by s 1 b of the Bill 15   Full consideration is given to the statutory context and effect of these retrospective provisions subsequently in this judgment where it addresses the constitutional issues to which those provisions give rise 16   Since the terms of the Bill are best appreciated by reference to s 53 of the Act of 1970 in its amended and consolidated form for ease of reference the provisions of the Bill are generally referred to in this judgment unless the context indicates otherwise by reference to the particular subsection of s 53 as amended or inserted by the Bill Presumption 17   The court in considering this Bill applies the presumption of constitutionality in accordance with its decision under Article 26 in The Criminal Law Jurisdiction Bill 1975 1977 I R 129 Constitutionality of provisions with prospective effect 18   The court will first of all consider the constitutional issues which have arisen in relation to those provisions of the Bill which have prospective effect only For this purpose the prospective provisions of the Bill are referred to in more detail 19   The primary prospective provision is to be found in s 1 a of the Bill which amends the provisions of s 53 2 of the Health Act 1970 As can be more readily seen from s 53 2 of the Act of 1970 in its consolidated form the Bill amends that subsection so as to require the Minister with the consent of the Minister for Finance to make regulations providing for the imposition of charges for in patient services on persons who receive such services or unspecified classes of such persons The Bill is mandatory in this regard in that it says the Minister shall make regulations The Minister is also required to specify in the regulations the amounts of such charges or the limits to such amounts 20   For these purposes in patient services is defined in s 53 11 of the Health Act 1970 as inserted by the Bill as meaning the institutional services referred to in the definition of in patient services in section 51 only insofar as those institutional services consist of the maintenance of a person 2005 The Health Amendment No 2 Bill 2004 162 1 I R Supreme Court S C 21   The institutional services referred to in s 51 of the Health Act 1970 are those provided for persons while maintained in a hospital convalescent home or home for persons suffering from physical or mental disability or in accommodation ancillary thereto Institutional services are defined for this purpose in s 2 of the Health Act 1947 as including a maintenance in an institution b diagnosis advice and treatment at an institution c appliances and medicines and other preparations d the use of special apparatus at an institution As can be seen the charges which the Minister may impose under the provisions of the Bill which counsel for the Attorney General conveniently described as maintenance charges are payable by all persons in receipt of in patient services insofar as the service received consists of the maintenance of the person 22   While the Act of 1970 draws a distinction for the purpose of enjoying such services and in particular as to their liability for the payment of any charges between persons having respectively full eligibility and limited eligibility no such distinction is drawn for the purpose of liability to pay any charges imposed by virtue of regulations made by the Minister under this provision of the Bill and it is not necessary to consider the distinction between these two categories in this context The distinction between full eligibility and limited eligibility is particularly pertinent to the retrospective effects of the Bill and this is fully considered later in the judgment 23   The Bill does however exclude certain categories of persons from liability to pay charges imposed under regulations made by the Minister under subs 2 These are set out in s 53 3 as inserted by s 1 b of the Bill and include such categories of persons who avail of such services as a woman in respect of motherhood a person detained involuntarily under the Mental Health Acts and persons with acute ailments or requiring acute care and treatment Section 53 9 as inserted by s 1 b of the Bill provides for a minimum period of stay before a person becomes liable to pay maintenance charges under the regulations and then goes on to provide that the charge imposed shall be charged at a weekly rate and that it shall not exceed 80 of the maximum weekly rate of the old age non contributory pension within the meaning of the Social Welfare Acts 24   The final relevant prospective provision of the Bill is to be found in s 53 4 as inserted by s 1 b of the Bill whereby a chief executive officer of a health board may reduce or waive a charge imposed under the regulations after the enactment of the Bill if he or she is of the opinion that having regard to the financial circumstances of that person including whether or not that person has dependants it is necessary to do so in order to avoid 2005 The Health Amendment No 2 Bill 2004 163 1 I R Supreme Court S C undue financial hardship in relation to that person In short the prospective provisions provide for the payment of maintenance charges by persons who are maintained in a hospital or home by a health board as long stay patients subject to the specified excepted categories This liability may be alleviated by the discretionary power of the chief executive officer in individual cases of undue hardship Submissions of counsel assigned by the court 25   Counsel assigned by the court made a number of submissions impugning the compatibility with the Constitution of the foregoing provisions The first issue concerned the imposition of any charges per se for maintenance on persons who receive such a service 26   Counsel assigned by the court firstly contended that if their arguments as to the existence of a constitutional right to care and maintenance by a health board of persons who are unable to look after themselves independently prevails then it would be unconstitutional to require those persons to pay any charge for the provision of that service irrespective of the means of those persons or their ability to pay for their maintenance This argument was followed by the alternative proposition relied upon by counsel namely that in any event the provisions requiring the imposition of charges for such services should be considered repugnant to the Constitution in that they would unduly restrict a constitutional right of access to them by virtue of causing undue hardship to persons of limited means 27   In their general argument on constitutionality counsel submitted that the provisions of the Bill which require the making of regulations to ensure the future imposition of charges on persons for in patient services consisting of maintenance are repugnant to Article 40 3 1 and 40 3 2 of the Constitution Although the Minister would be precluded by s 53 3 as inserted by s 1 of the Bill from imposing charges on certain categories of persons the Bill requires him to impose charges for maintenance on all other persons receiving such services pursuant to s 52 of the Health Act 1970 These it was submitted are by definition largely persons facing very considerable financial hardship and invariably include the elderly and persons who suffer from physical or mental disability It was submitted that the Constitution and specifically the right to life and the right to bodily integrity of such persons as derived from Article 40 3 1 and 2 imposes an obligation upon the State to provide at least a basic level of in patient facilities to persons in need of care and maintenance who cannot provide it for themselves It was also submitted that any charge on persons who are of such modest means as to qualify for the old age non contributory pension or to come within the definition of full eligibility pursuant to the Health Acts would of itself be unconstitutional In short it was submitted 2005 The Health Amendment No 2 Bill 2004 164 1 I R Supreme Court S C the class of persons thus affected evidently embraces the elderly and those disabled by physical or mental conditions such as to require residential care Any charge would be an undue financial burden on such persons and therefore would constitute a failure to vindicate their right to life and also their constitutional rights to bodily integrity on the one hand and their dignity as human persons on the other Alternatively it was argued that the charges actually provided for in s 53 9 as inserted by s 1 b of the Bill would in any event cause undue hardship on the persons concerned so as to be in breach of their constitutional rights of the kind referred to 28   In their submissions counsel assigned by the court sought to derive from the right to life or the right to personal dignity as protected by Article 40 3 1 and 2 of the Constitution a constitutional right for those who are entitled to the services provided pursuant to s 52 of the Act of 1970 to maintenance in a home without the imposition of any charge or alternatively any unreasonable charge Article 40 3 states 1 The State guarantees in its laws to respect and as far as practicable by its laws to defend and vindicate the personal rights of the citizen 2 The State shall in particular by its laws protect as best it may from unjust attack and in the case of injustice done vindicate the life person good name and property rights of every citizen 29   In addition counsel assigned by the court relied in their submissions on a range of judicial dicta in a number of cases and in particular that of Kenny J in his judgment in the High Court in Ryan v Attorney General 1965 I R 294 at p 314 where he quoted as follows from a passage in the Papal encyclical Peace on Earth Every man has the right to life to bodily integrity and to the means which are necessary and suitable for the proper development of life these are primarily food clothing shelter rest medical care and finally the necessary social services Other case law relied upon included McGee v Attorney General 1974 I R 284 O Brien v Wicklow UDC Unreported High Court Costello J 10th June 1994 F N v Minister for Education 1995 1 I R 409 and In re a Ward of Court No 2 1996 2 I R 79 30   Counsel assigned by the court also submitted that the doctrine of the separation of powers according to which it was an exclusive function of the Oireachtas to determine the allocation of budgetary resources according to public policy priorities rather than the courts should not be considered as inhibiting the court from finding the proposed imposition of charges unconstitutional It was submitted that the duty of the State to respect constitutional rights as enforced by the courts will often have as a 2005 The Health Amendment No 2 Bill 2004 165 1 I R Supreme Court S C consequence the expenditure of necessary funds to fulfil that obligation The State cannot be spared from its duty to respect the rights in question on financial grounds alone Submissions of counsel for the Attorney General 31   Counsel for the Attorney General submitted that the extent of the State s constitutional obligations did not go so far as to involve a constitutional obligation to maintain elderly or other long stay patients This was a matter to be dealt with by statute in accordance with public social policy In support of their submissions counsel for the Attorney General also relied on judicial dicta in a range of cases including that of Keane C J in T D v Minister for Education 2001 4 I R 259 where he called into question the formulation adopted by Kenny J in Ryan v Attorney General 1965 I R 294 as to whether it was an altogether satisfactory guide to the identification of such rights Counsel for the Attorney General also cited statements by the late Professor John Kelly to the same effect in Fundamental Rights in Irish Law and Constitution 1967 pp 44 and 45 Counsel for the Attorney General also made reference to judicial dicta in T D v Minister for Education Attorney General v Hamilton 1993 2 I R 250 and Sinnott v Minister for Education 2001 2 I R 545 32   In the alternative it was argued on behalf of the Attorney General that even if the persons concerned enjoyed the rights asserted by counsel assigned by the court there can be no constitutional objection to a charge which is subject to an upper limit and which represents only a portion of the actual costs to the State of maintaining such patients In addition it was submitted that the doctrine of the separation of powers as accepted in the jurisprudence of this court recognised the constitutional competence of the Oireachtas to determine the allocation of resources in accordance with social and economic policies and that the exercise of its competence in this instance was not such as to infringe or subject to unjust attack any constitutional rights of those affected by these provisions of the Bill Conclusion on this issue 33   The extent to which care and maintenance is provided to persons affected by the Bill has not been put in issue This is inevitable since the Bill does not purport to address that subject matter What the Bill seeks to do is to lay down the terms by way of the imposition of charges upon which the services in question can be availed of That is why the constitutional challenge presented by counsel assigned by the court focuses as they put it on the principle of charging 2005 The Health Amendment No 2 Bill 2004 166 1 I R Supreme Court S C 34   In a discrete case in particular circumstances an issue may well arise as to the extent to which the normal discretion of the Oireachtas in the distribution or spending of public monies could be constrained by a constitutional obligation to provide shelter and maintenance for those with exceptional needs The court does not consider it necessary to examine such an issue in the circumstances which arise from an examination of the Bill referred to it Even assuming there is such a constitutional right to maintenance as advanced by counsel the question actually raised is whether the charges for which the Bill provides could be considered an impermissible restriction of any such right 35   Section 53 9 of the Act of 1970 as inserted by s 1 b of the Bill provides for the imposition of a charge at a weekly rate which shall not exceed 80 of the maximum of the weekly rate of the old age non contributory pension within the meaning of the Social Welfare Acts 36   Furthermore s 53 4 as inserted by the Bill provides that the chief executive officer of a health board may reduce or waive a charge imposed on a person under the regulations if he or she is of the opinion that having regard to the financial circumstances of that person including whether or not that person has dependants it is necessary to do so in order to avoid undue financial hardship in relation to that person 37   The first argument of counsel assigned by the court was that persons entitled to in patient services pursuant to s 52 1 of the Act of 1970 had a constitutional right to receive such services including any maintenance elements involved free of charges irrespective of the means of such persons In Sinnott v Minister for Education 2001 2 I R 545 the court had occasion to point out the unique feature of Article 42 in requiring the State to provide for free primary education In using those terms the Constitution made free education an express characteristic of the right to primary education so that no charges could be imposed for it It is not contended that there is any equivalent provision of the Constitution applying to the rights asserted by counsel Persons who avail of in patient services pursuant to s 52 of the Act of 1970 and who have the means to pay for maintenance charges related to those services are not denied access to them The court does not consider that it could be an inherent characteristic of any right to such services that they be provided free regardless of the means of those receiving them 38   The alternative argument of counsel assigned by the court was that the charges actually provided for in the Bill would cause undue hardship to persons of limited means who have for a range of reasons a special need for maintenance by a health board in receiving in patient services 39   It is not in contention that the maximum proposed charge would be but a fraction of the total cost of maintenance of a person concerned However 2005 The Health Amendment No 2 Bill 2004 167 1 I R Supreme Court S C the real question is whether the charges as envisaged could be said to infringe or unduly restrict the constitutional rights asserted 40   Although the Bill makes it mandatory for the Minister to impose charges his discretion would appear to extend from a nominal charge to the maximum charge of 80 of the maximum old age non contributory pension It was clearly the intent of the Oireachtas that the power to impose such charges should not result generally in undue hardship to the classes of persons to whom they applied That is reflected in the provision which grants a chief executive officer the power to remit a charge in a case of individual undue hardship Such a provision is only consistent with an intent that the charges themselves should not cause undue hardship as a general consequence for those persons who have to pay them That is a policy aspect of the Bill 41   It seems to the court that it cannot be gainsaid having regard to its well established jurisprudence that it is for the Oireachtas at first instance to determine the means and policies by which rights should be respected or vindicated Counsel assigned by the court are correct in submitting that the doctrine of the separation of powers involving as it does respect for the powers of the various organs of State and specifically the power of the Oireachtas to make decisions on the allocation of resources cannot in itself be a justification for the failure of the State to protect or vindicate a constitutional right This of course begs the question as to whether the provisions in question involve such a failure 42   In this instance the Oireachtas has been careful to insert into the Bill a cap on the maximum charge which the Minister can impose as referred to above In doing so it is clear that it sought to avoid causing undue hardship generally to persons who avail of the in patient services No doubt it could be said that the State could or should have been more generous or less so with regard to persons of significant means but that is the kind of debate which lies classically within the policy arena and is not a question of law All the court is concerned with is whether the charges are such that they would so restrict access to the services in question by persons of limited means as to constitute an infringement or denial of the rights asserted by counsel In reaching its conclusion on this question the court must also take into account the fact that such persons who avail of in patient services involving maintenance as referred to in the Bill would otherwise have had to maintain themselves out of their own means when living outside the care of the health board Furthermore there is nothing before the court from which it could conclude that the judgment of the Oireachtas that a charge capped at the level of 80 of the maximum of the weekly old age non contributory pension would generally cause undue hardship or be an undue denial of access to the services in question Certainly there may be 2005 The Health Amendment No 2 Bill 2004 168 1 I R Supreme Court S C individual cases where due to personal circumstances the charge concerned would involve undue hardship But as previously outlined the Oireachtas has put in place a provision in the Bill subs 4 as inserted in s 53 expressly providing for an administrative mechanism for the remission in whole or in part of such a charge by a chief executive officer in order to avoid undue hardship Conclusion 43   Accordingly the court concludes that a requirement to pay charges of the nature provided for in the Bill could not be considered as an infringement of the rights asserted by counsel Delegated legislation 44   Counsel assigned by the court raised two matters which they submitted constituted the delegation of law making powers in a manner impermissible under the Constitution These are the extent of the power conferred on the Minister to make regulations and the ambit of the discretion conferred on the chief executive officer of a health board to mitigate charges payable under the regulations in individual cases This judgment will summarise the respective submissions of counsel on each point before setting out the court s conclusions The power to make regulations 45   Counsel assigned by the court submitted that s 53 2 of the Act of 1970 as amended by the Bill is repugnant to the Constitution because the Oireachtas failed to ensure that there were sufficient statutory guidelines by way of principles and policies contained in the Bill which could authorise the Minister to impose charges by way of delegated legislation The subsection conferred too broad a discretion on the Minister and in the absence of such principles and policies constituted an impermissible delegation of law making powers which are reserved under the Constitution to the Oireachtas Counsel principally relied on Article 15 2 1 of the Constitution and the interpretation given to that provision by this court in Cityview Press Ltd v An Chomhairle Oiliúna 1980 I R 381 Article 15 2 1 provides The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas no other legislative authority has power to make laws for the State In Cityview Press Ltd v An Chomhairle Oiliúna 1980 I R 381 O Higgins C J observed as follows at pp 398 and 399 2005 The Health Amendment No 2 Bill 2004 169 1 I R Supreme Court S C The giving of powers to a designated Minister or subordinate body to make regulations or orders under a particular statute has been a feature of legislation for many years The practice has obvious attractions in view of the complex intricate and ever changing situations which confront both

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    Supreme Court The Supreme Court Office will also normally provide information to the parties to a specific case General questions are answered but legal advice is precluded For further information or assistance please contact the Supreme Court Office Contact details are provided below The Supreme Court Registrar The Supreme Court Registrar is the head of the office and is responsible for the management of the office Location The Supreme Court

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  • Supreme Court of Ireland
    their judicial functions and subject only to this Constitution and the law Under Article 35 4 4 of the Constitution the members of the Supreme Court the Court of Appeal and the High Court can be removed from office solely by a resolution of both Houses of the Oireachtas for stated misbehaviour or incapacity The tenure of Circuit Court and District Court Judges is similarly protected by statute In addition under Article 35 5 1 of the Constitution the remuneration of a judge cannot be reduced during his or her term of office save in accordance with Article 35 5 The jurisdiction of any Judge depends on the jurisdiction of the court over which he or she presides The Court System The Constitution outlines the structure of the court system in Ireland by expressly establishing the Supreme Court a court of final appeal in all matters of constitutional civil and criminal law the Court of Appeal in matters of constitutional civil and criminal law and the High Court a court of first instance with full jurisdiction in all criminal and civil matters Provision is also made in Article 34 3 4 for the establishment of courts of local and limited jurisdiction on the basis of which the Circuit Court and the District Court which are organised on a regional basis were established by statute i The District Court The District Court is a court of local and limited jurisdiction having the authority to deal only with certain matters arising within its functional area The District Court s jurisdictional powers are conferred upon it by statute and it may not therefore deal with any matters which fall outside its statutory remit In civil matters the District Court has jurisdiction to deal with claims which are not in excess of 15 000 and 2 000 in small claims In matters of family law the District Court has jurisdiction in matters concerning maintenance custody of and access to children and may make orders pertaining to domestic violence In criminal matters the District Court is a court of summary jurisdiction and deals with the non jury trial of persons charged with minor offences The District Court also has jurisdiction to grant bail in most cases and deals with the issue of sending an accused forward for trial in cases involving criminal offences outside its jurisdiction ii The Circuit Court The Circuit Court is also a court of local and limited jurisdiction with appellate jurisdiction of all matters arising in the District Court The Circuit Court has jurisdiction in civil matters where the claim exceeds the jurisdiction of the District Court but where it is not in excess of 75 000 and 60 000 in personal injuries In family law matters the Circuit Court may grant orders of divorce judicial separation and nullity as well as any ancillary orders In criminal matters the Circuit Court has jurisdiction to deal with all offences except those over which the Central Criminal Court has jurisdiction Criminal trials in

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    The Legal System Publications Links Constitution of Ireland Bibliography Publications The following is a selection of publications of interest Preliminary Submission of the Judicial Appointments Review Committee to the Department of Justice and Equality s public consultation on the judicial

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    Court Judgments The Supreme Court Office The Legal System Publications Links Constitution of Ireland The Courts Service The Judicial Studies Institute Journal The European Court of Justice The European Court of Human Rights Links The Courts Service The Judicial Studies

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