Supreme Court grants brief period for State to legislate before declaring asylum work ban unconstitutional.

THE SUPREME COURT

Clarke C.J.

O’Donnell J.

MacMenamin J.

Dunne J.

O’Malley J.

N H V (THIHA)

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

AND

THE ATTORNEY GENERAL AND THE IRISH HUMAN RIGHTS AND EQUALITY COMMISSION

NOTICE PARTIES

Judgment (ex tempore) of the Court delivered on the 30th day of November, 2017 by Clarke C.J.

1. This Court has already given judgment in this matter and has ruled that in certain respects the absolute prohibition on working for

persons who are in the asylum system was inconsistent with the Constitution.

2. Exceptionally the Court did not take the normal course of immediately declaring the relevant legislative provisions to be

unconstitutional thus rendering them of no continuing legal effect. Rather the Court in its judgment recognised that there were

choices to be made as to how the difficulty which had been identified by the Court in its judgment was to be addressed and that at

least the first port of call in making those choices rested with the Legislature.

3. It does have to be strongly emphasised that the general rule must be that, on finding a measure of legislation to be

unconstitutional, the Court should immediately declare it to be so and thereby render it inoperative under the terms of the

Constitution. While the Court has not as yet had the opportunity to consider in any detail the parameters of any exceptional

circumstances which might allow the Court to depart from that general proposition, nonetheless it must be made clear that the

circumstances in which it would be appropriate for the Court not to follow the general rule must necessarily be exceptional. The Court

has identified this case as one in which such exceptional circumstances did arise.

4. However, in the Court’s view, there are significant limitations on the appropriate scope of further interaction between the Court

and the parties. I appreciate that it has not been sought on the part of the State that the Court should involve itself in any approval

or discussion as to the merits of the choices which the State has now made or the choices which were available to the State at the

time when the Court gave judgment. But nonetheless, it is important to emphasise that the whole point of the affording of a period of

time to the State was to allow the Legislature to make the decisions which it has to make. It must be emphasised that the Court has

no role in those matters.

5. Essentially, the issue which, therefore, faces the Court today is as to the appropriate course of action to adopt in the light of the

fact that it has been indicated by counsel on behalf of the State that, firstly a decision has been made as to how this matter is to be

approached and, secondly that plans are afoot to take the necessary legislative measures so that Ireland will opt into the Reception

Directive.

6. The Court appreciates that the State has taken measures to use the time which the Court gave, but the Court does not want to

become involved in the question of monitoring even the speed of progress of those measures because the Court does not consider

that to be its function under the Constitution.

7. In all the circumstances, the Court feels that the balance of justice would be met by affording a relatively brief period to the State

to, as it were, take whatever measures it considers necessary prior to a declaration of inconsistency with the Constitution being

made. But the Court would wish strongly to emphasise that what is envisaged is not that there will be any further hearing, sitting,

consideration of submissions, receipt of letters or the like. What follows is simply an indication of what the Court will do.

8. The Court proposes to sit again on this matter on Friday the 9th February and on that day the Court will make the declaration

which was sought on behalf of the applicant. Therefore, this is simply an indication of what is going to happen. It is not an

adjournment as such, the matter is not being put back for any further consideration on that date. It is therefore a matter for the

State to take whatever measures it considers appropriate within that timeframe. But I want to make clear on behalf of the Court that

the relevant declaration will be made on that date.