The Gazette 1984

JANUARY/FEBRUARY 1984

GAZETTE

King -v- A.G. The constitutional inability of the courts to tamper with the legislative will was emphasised again in King-v- A.G. 26 , wherein it was made clear by a majority of the Supreme Court that the principles adumbrated in Maher - v- A.G. applied also to the pre-1937 statutes, whose continuance in force subject to possible inconsistency with the Constitution is asserted by Art. 50. O'Higgins C.J. dissented from this conclusion. He pointed out that Article 50 of the Constitution is almost identical with Article 73 of the Free State Constitution. In The State (Kennedy) -v- Little 21 O'Byrne J., who assisted in the drafting of the Free State Constitution, explained the rationale and effect of Article 73 stating that it was intended to set up the new state with the least possible change in the previously existing law and that Article 73 should be so construed as to effectuate this intention. Johnston J. added that we should be very slow to do anything that would have the effect of depriving the Saorstat of the benefit of the vast body of useful statutory law which regulated hundreds and thousands of necessary matters in the body politic at the date of the coming into operation of the Constitution. The Chief Justice went on to distinguish the situation before the Court from the position obtaining in Maher -v- A.G. In the Maher case the Court was confronted with a law which derived its validity from its enactment by the Oireachtas whereas in cases under Art. 50 the law, to the extent of its consistency, continued in force as a law by reason of the Constitution itself. In the one case legislative intent may be relevant, in the other it is not. With the r HOW OFTEN DOYOUGET THE CHANCE TO WIN £100,000?

are quite in accord with the Constitution. They are however so inextricably entangled with the portion which we find repugnant to the Constitution that there is no way of avoiding this result". Maker -v- A. G. merely gives sharper dogmatic shape to the general trend of judicial opinion on this topic. Blake & Madigan -v- A.G. The principles enunciated in Maher -v- A.G. were applied in Blake & Madigan -v- A. G. 22 , a case involving an attack on the constitutionality of the Rent Restrictions Act 1960 (as amended). It was held that even if Part IV of. the Act of 1960, restricting the right of landlords of controlled dwellings to recover possession could not be said to be infected with the constitutional infirmity invalidating the provisions governing rent control, it still could not survive constitutional challenge. It was an integral part of an unfair statutory scheme whereby certain tenants were singled out for specially favourable treatment on the basis of purely arbitrary criteria. It could not be said to have been enacted by the Oireachtas in a manner and in a context that would leave it with a separate and self-contained existence as a duly enacted measure representing the law-making will of the Oireachtas. The technique of "reading down" a Statute In Maher -v- A. G. 10 the Supreme Court also stressed the necessity to maintain the verbal integrity of a section before severance could constitutionally be effected. 23 This requirement resides rather uneasily with the technique of reading down a statute that had earlier found favour in Educational Co. of Ireland -v- Fitzpatrick 2 *, a case in which the right of an individual to abstain from membership of an association was asserted. The plaintiffs in the case obtained injunctive relief against picketing designed to get them to bring pressure to bear on some of their employees who were not members of a trade union to join it. Although Budd J. and the Supreme Court upholding him, were of the view that a trade dispute existed within the meaning of the Trade Disputes Act 1906, section 2 of which protected peaceful picketing, they also held that, in the words of Kingsmill Moore J.: "The Trade Disputes Act 1906 can no longer be relied upon to justify picketing in aid of a trade dispute, where that dispute is concerned with an attempt to deprive persons of the right of free association or free dissociation guaranteed by the Constitution. The definition of trade dispute must be read as if were attached thereto the words 'Provided that a dispute between workmen and workmen as to whether a person shall or shall not become or remain a member of a trade union . . . . shall not be deemed to be a trade dispute for the purposes of this Act 25 '." These observations are fundamentally at odds with the limitations which have developed on the deployment of the doctrine of severance and seem to give the courts carte blanche to rewrite laws in constitutional form. This runs counter to the concept enshrined in Art. 15.2.1 of the Constitution that the Oireachtas has the sole and exclusive power of making laws for the State.

Not often enough 9 Open a new Supersave Share account and you get a chance to win EVERY MONTH' With Supersave Shares, you not only earn a higher rate of interest, you also get Prize Bond numbers allocated to your account

One Prize Bond for every £500 invested Up to a maximum of 30 Prize Bonds So for a higher rate of interest and a chance to win in the monthly Prize Bond Draws, invest in Supersave Shares Join us at the Irish Life Building Society

Together we can make things happen!

Irish Life Building Society

Head Oftice Irish Lite Centre. Lower Abbey Street Dublin 1 Tel 724055 Branches throughout Ihe country

7