The Gazette 1984

GAZETTE

JANUARY/FEBRUARY 1984

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.

, 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

Maher

-v-

A. G.

the Supreme Court also stressed the

necessity to maintain the verbal integrity of a section

before severance could constitutionally be effected.

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

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

'."

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.

King -v- A.G.

The constitutional inability of the courts to tamper

with the legislative will was emphasised again in

King-v-

A.G.

wherein it was made clear by a majority of the

Supreme Court that the principles adumbrated in

Maher -

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

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

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