The Gazette 1984

GAZETTE

JANUARY/FEBRUARY 1984

The Doctrine of Severability in the Judicial Review of Legislation by Gerard McCormack, B.C.L., LL.M.

O UR courts, in exercising the power of judicial review conferred by the Constitution, have eschewed the idea that their function is to act as councils of legislative revision free from restraint. The courts are not the sole repositories of sagacity nor are they ominiscient and a number of prudent devices have been fashioned which limit any oligarchic tendencies on their part. Many of these have an American provenance 1 and serve to limit the involvement of the courts in the political process. The presumption of constitutionality, which has a respectable pedigree in other jurisdictions creates a bias against a statute being found unconstitutional and reduces the impact of the judicial review role on the legislative policy- making prerogative. 2 The doctrine of separability in the judicial review of statutes also assists in the achievement of this objective. The effect was explained by Fitzgerald C.J. in Maher -v- A.G. 3 "The application of the doctrine of severability or separability in the judicial review of legislation has the effect that if a particular provision is held to be unconstitutional, and that provision is independent of, and severable from the rest, only the offending provision will be declared invalid". Application of the Principle These observations strongly articulate an idea which runs through several earlier cases. In Deaton -v- A. G. A the constitutional validity of s. 186 of the Customs Consolidation Act 1876 was considered. This section gave the Revenue Commissioners power to select which of two penalties should be imposed by a Court. The Supreme Court, overruling Kenny J., held that the "selection of punishment" was an integral part of the administration of criminal justice and thus the impugned provision authorised the impermissible interference with the operations of the courts in a sphere reserved to them by the Constitution. However, O'Dalaigh C.J. giving the unanimous judgment of the Supreme Court stated: "The Constitution invalidates the section only to such an extent as it is inconsistent with or repugnant to the Constitution, i.e., to the extent that the selection of the penalty is committed to the Commissioner of Custom (now the Revenue Commissioners). The section therefore remains intact with the words at the conclusion of the Commissioners of Custom (now the Revenue Commissioners) deleted therefrom." 5

In The State (Sheerin) -v- Kennedy 6 it was decided that the power conferred on the Minister for Justice by S.7of the Prevention of Crime Act 1908 (as adopted) to determine whether an offender transferred from a Borstal institution to prison should undergo hard labour or not was invalid. The section was to be regarded as surviving but with the offending words deleted. Walsh J. said: "If there is no essential difference between a term of imprisonment and a term of detention, then I think the only portion of the section inconsistent with the provision of the Constitution is the words "with o r" following the words "term of imprisonment" the absence of which would abolish power to commute detention to a term of imprisonment with hard labour." 7 In The State (C) -v- Minister for Justice 8 the constitu- tionality of S.13 of the Lunatic Asylums (Ireland) Act 1875 was successfully assailed. Nevertheless.the section for its want of constitutional vires did not fall in its entirety. The provisions purporting to empower an officer of the Executive to set at nought the District Court's remand were excised from the Act and the remainder of the section survived the offensive unaffected. O'Dalaigh C.J. said: "In the result my judgment is that the second part of section 13 of the Act of 1875 is inconsistent with the Constitution.. .. This inconsistency can be cured by the deletion of the words "It shall be in like manner certified" in line 9 down to the words "and be" in the fourteenth line of the section inclusive, the rest of the section being left intact." 9 The principle of severance has equally been applied subsequent to the decision of the Supreme Court in Maher -v- A. G. 10 . In In Re McAllister 11 Kenny J. was of opinion that s.385 of the Irish Bankrupt and Insolvency Act 1857, to the extent that it provided for the commitment of a person to prison "there to remain without bail", exceeded the constitutional powers permitted to the legislature. He added: "It does not follow, however, that the whole of the section is repugnant to the Constitution and the relevant parts of the section should now read

'It shall be lawful to commit such person to such prison as such court shall think fit, there to remain until he or she shall submit himself 5