The Gazette 1984

GAZETTE

JANUARY/FEBRUARY 1984

9. Ibid at p. 116. See also the judgment of Walsh J. at p. 123. 10. [1973J I.R. 140. 11. [1973] I.R. 238. 12. Ibid at p. 242. 13. [1979] I.R. 73. 14. Ibid at p. 84. The provision reads as follows: (1) No person shall remove out of the State a child under seven years of age who is an Irish citizen or cause or permit such removal. (2) Sub-section (1) shall not apply to the removal of an illegitimate child under one year of age by or with the approval of the mother or if the mother is dead, of a relative for the purpose of residing with the mother or a relative outside the State. (3) Sub-section (I) shall not apply to the removal of a child (not being an illegitimate child under one year of age) by or with the approval of a parent, guardian or relative of a child. The learned judge found that it was necessary to strike down only the whole of sub-section (2) and the part of sub-section (3) in brackets. 15. [1973] I.R. 140 at p. 147-148. 16.(1963) Prl. 7165. 17. See Morgan "The Emergency Powers Bill Reference - 11 (1979) 14 Irish Jurist (N.S.) 261 at p. 274 Footnote 107. 18. [1962] I.R. 1 at p. 43. 19. [1972] I.R. 144. 20. Ibid at p. 157. 21. Unreported Supreme Court. December 1955. The point was also taken in Cowans -v- A.G. [1961] I.R. 411. 22. [1982] I.R. 117. 23. There must be no "violence to the verbal integrity of the provision as enacted by the legislature" [ 1973] I.R. 140, 149. The Supreme Court seemed to suggest that this requirement was not satisfied on the facts in Maher's case but this isdifficult tocredit. All that severance would have required here was the exclusion of one adjective (conclusive). There was no need for verbal reformulation. 28. Also of interest are the observations of the Chief Justice at page 250 of the report. "I am however, somewhat concerned at the wide nature of the declaration given by Mr. Justice Mc William in the High Court. The effect of this declaration is to remove from Section 4 of the Vagrancy Act (as amended) and from the Statute Books the offence known as 'loitering with intent'. The conduct prescribed in such an offence is, in my view, not only a serious and persistent social evil but also one which, in all ages and seasons, has. in its intimidation of law-abiding citizens, facilitated the commission of serious crime. To remove such an offence from the Statute book merely because the provisions creating it or providing for its prosecution contain elements of inconsistency with the Constitution is, in my view, far too sweeping an exercise of the power of judicial review." 32. See also the observations of Viscount Simon in A.G. for Alberta - v-A. G. for Canada [1947] A.C. 503 at 518 which were referred to with approval by Lord Diplock in Hinds -v- The Queen [ 1976] 1 A11 E.R. 353 at 373. "The real question is whether what remains is so inextricably bound up with the part declared invalid that what remains cannot independently survive or, as it has sometimes been put, whether on a fair review of the whole matter it can be assumed that the legislature would have enacted what survives without enacting the part that is ultra vires at all. 33. [1981] I.L.R.M. 324. 34. Ibid at 327. Note too Forde (1982) 17 Irish Jurist (N.S.) 295 at 336-339. 35. Supreme Court, unreported, 13 May 1983. 36. In Goulding Chemicals Ltd. -v- Bolger [1977] I.R. 211 O'Higgins C.J. said that a change in the law of industrial relations might well merit consideration by the Oireachtas. Henchy J. in Cahill -v- Sutton [1980] I.R. 269 opined that the enactment of a provision postponing the running of time in personal injuries claims until the plaintiff discovers, or could with reasonable diligence discover, the damage merited urgent consideration by the legislature. • 24. [1961] I.R. 345. 25. Ibid at p. 398. 26. [1981] I.R. 233. 27. [1939] I.R. 39. 29. Ibid at 264. 30. Ibid at 260. 31.(1934) 292 U.S. 571 at page 586. These words were cited with approval by the United States Supreme Court in Regional Rail Reorganisation cases (1974) 419 U.S. 102 at 136.

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