The Gazette 1984

GAZETTE

JANUARY/FEBRUARY 1984

The Doctrine of Severability in the

Judicial Review of Legislation

Gerard McCormack, B.C.L., LL.M.

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

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.

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.

"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.

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."

The State (Sheerin)

-v-

Kennedy

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."

The State (C) -v- Minister for Justice

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."

The principle of severance has equally been applied

subsequent to the decision of the Supreme Court in

Maher

-v-

A. G.

. In

In Re McAllister

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