16 / 322
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.
24. [1961] I.R. 345.
25.
Ibid
at p. 398.
26. [1981] I.R. 233.
27. [1939] I.R. 39.
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."
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.
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.
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