Before the Adjournment I was drawing the attention of the House to the fact that there are a few decisions of the Supreme Court of recent years bearing not squarely on the question of invalid judicial appointments or the continuation of people in apparent judicial office beyond an age at which they were no longer warranted so to do, but, nevertheless, illuminating, because they bear on the problem of whether the sky must be deemed to have fallen if some irregularity shows up in our legal or constitutional process of a kind which in theory might seem to invalidate a huge number of acts which previously have been done.
Before Question Time I had mentioned the case of Miss de Burca in which the plaintiff successfully got the Supreme Court to declare invalid the provisions of the 1927 Juries empanellment to persons who were both male and householders, and because of its conflict with the constitutional provision against discrimination, infringing what the court took to be the proper composition of a jury, and opening up the question of the status of jury verdicts in the years between 1927 and the date of the judgment. I inadvertently gave the House the wrong date for Miss de Burca's case. It was not in the 1972 but in the 1976Irish Law Report. I was confusing it with another case in the same list.
In that case Chief Justice O'Higgins referred to a case which had been decided a few years previously in which the court had not been invited to, and nobody had thought to draw anyone's attention to, the potential of the case before it for invalidating things which had previously happened. That was the case of McMahon v. the Attorney General. It was the case I had in mind and it is reported in the 1972 Irish Law Report page 69. In that case the plaintiff challenged what were regarded as the applicable provisions on the secret ballot in Dáil elections. He drew attention to the rules in and authorised by the 1923 Electoral Act which required that the presiding officer at a voting table, before issuing a ballot paper to an elector, would note on the counterfoil of the ballot paper the number in the electoral register opposite the name of the voter being given the ballot paper. That in theory made it possible to re-associate the ballot paper with the voter, by tracking the number on the ballot paper and matching the number on the counterfoil, to trace a particular ballot paper to a particular voter. It was not suggested that this had ever been done or that such an abuse had ever occured since the State began, but Mr. McMahon's point was that a reasonable apprehension must exist and the court said he was right. Accordingly, the court said a ballot constituted in the way I have described could not be described as a secret ballot for constitutional purposes and that that requirement which had existed under the 1922 Constitution had not been respected from the moment the 1923 arrangements came into force. Did that mean there had never been a validly elected Dáil since 1923? No one thought of raising that point, in fact it was expressly disclaimed in the McMahon case, but it was adverted to a few years later in de Burca's case when the Chief Justice said as follows:
In McMahon's Case the Courts were not asked to entertain any suggestion that such irregularity invalidated previous elections nor, in my view, could such a submission have been successfully made.
Why? Here is the pragmatic answer of a Chief Justice who for many years was a Deputy and a Minister in this House. I am not trying to imply that such a person would necessarily have his feet more on the ground than a lawyer who had never gone into politics but at least this is some kind of guarantee against not being free floating like a balloon in the air several hundred feet above common or garden reality. Chief Justice O'Higgins said:
The overriding requirements of an ordered society would invalidate such an argument.
He said that in Miss de Burca's case the same consideration would apply to any suggestion about the status of the jury verdicts which had been found by unconstitutionally composed juries over the years.
Chief Justice O'Higgins repeated this observation in much the same words, though cast in the form of a rhetorical question, when the point about the status of earlier jury verdicts was an issue shortly after in a case, The State (Byrne) v. Frawley, 1978 Irish Law Reports, page 326. The Chief Justice posed the question:
Could ordered society accept such a conclusion?
In other words, if we are to do what one of the judges in the Supreme Court felt might need to be done, although he said this realising the magnitude of the implications of the statement, what would be left of society? Would the convulsion not be so mountainous that society could not survive if we were to try to undo the effects of thousands of jury verdicts down to the uttermost implications theoretical justice might require? One of the judges in de Burca's case, Mr. Justice Walsh, our most senior and respected judge stood a distance from this. He said that the implications of the suggestion that earlier verdicts might now be impugned might be thought to be frightening. He went on to say that whether they are frightening or not has nothing to do with the task of interpreting the Constitution which falls upon the court, that if an infringement of the Constitution were to continue long enough, the cost of correcting it might be great but that that is not a reason for perpetuating it. In an oblique way he did envisage that one might some day have to incur a heavy cost in putting right some unconstitutional process, but if I have to declare a preference between two very respected and fine judges, I would have to come down on the side of Chief Justice O'Higgins for the simple reason that society simply could not sustain the burden which any such retrospective rectification of countless errors would throw on it.
The last of the cases I want to burden the House with is the income tax case which everyone must remember — Murphy v. the Attorney General reported in the 1982 Irish Law Reports, page 241. That case bore on the constitutional validity of the Finance Act provision which effectively taxed a married couple more heavily than if they were two people cohabiting, even calling themselves Mr. and Mrs. X, perhaps even having a bogus reception and handing out wedding cake. There is no law against that. They could have been masquerading in every respect as a married couple but not in fact married. They would pay less in tax than a lawfully married couple going through the same social formalities. All the imagery I have employed naturally did not come into the court's judgment but, in a nutshell, that was the reason for the court striking down those provisions.
That, of course, raised the ancillary question of the status of any taxpayers, of whom I was one, who down the years had been the single taxpayer of a married couple and had been treated less advantageously than if he had not been married but living in ostensibly the same conditions. The court did a very unusual thing. It gave a set of opinions uncoupled from the substantive judgment in which it dealt with the question of possible retroactivity. In the judgment the majority view, certainly on the point that interests us here, was delivered by Mr. Justice Henchy in a form which I think must be regarded as magisterial and authoritative. I could not improve on it. If the House will bear with the quotation from the Supreme Court majority, I will cite it. Judge Henchy said:
While it is central to the due administration of justice in an ordered society that one of the primary concerns of the Courts should be to see that prejudice suffered at the hands of those who act without legal justification, where legal justification is required, shall not stand beyond the reach of corrective legal proceedings, the law has to recognise that there may be transcendent consideration which make such a course undesirable, impractical, or impossible.
Over the centuries the law has come to recognize, in one degree or another, that factors such as prescription.
—that is lapse of time—
(negative or positive), waiver, estoppel laches,
That is, sitting on your rights so to speak and not doing what perhaps the solicitors in the cases that we are talking about here, might well have done, namely, asked themselves how old is the judge, ought his appointment to have been renewed, has it been renewed, or is he properly there on account of the practice qualification? That is for solicitors, forgive me colleagues, but that is what they are part paid to do just as counsel are paid to do it and from now on, no doubt, it is a point which every defending solicitor and counsel will look at ——