Restitution Discussion Group Archives
| Sender: |
Eoin O'Dell |
| Date: |
Sat, 19 Feb 2005 19:28:52 |
| Re: |
Woolwich and Constitutional Property Rights in Ireland |
Dear all,
On Wednesday of this week, the Irish Supreme Court handed
down an important decision on Woolwich-type claims and the constitutionality
of subsequent legislation seeking retrospectively to extinguish such claims.
Health Boards in Ireland were required by statute to
make in-patient services available without charge (pursuant to the terms
of section 53(1) of the Health Act 1970) to elderly or long-stay in-patients;
but nevertheless imposed charges for such services. This became a matter
of political controversy at the end of last year, and the Government passed
the Health (Amendment) (No. 2) Bill, 2004 which, inter alia, declared
that “the imposition and payment of a relevant charge is, and always has
been, lawful” (inserting a new s.53(5) in the 1970 Act), in effect retrospectively
validating the unlawful charges.
When the Bill was submitted to the President for signature,
she exercised her power under Article 26 of the Constitution to refer
the Bill to the Supreme Court to determine its constitutionality. The
Supreme Court held that the relevant in-patients did indeed have Woolwich-type
claims to restitution of the unlawful charges, and that, as choses in
action, these claims were property rights within the meaning of Articles
40.3.1 and 43 of the Constitution. In particular, the Court held that,
in accordance with the principles of social justice (mentioned in Article
43.2.1 of the Constitution), “the property of persons of modest means
must necessarily … be deserving of particular protection, since any abridgement
of the rights of such persons will normally be proportionately more severe
in its effects” (at p. 79). As a consequence, although the cost to the
State was likely to be very great (figures of between half a billion and
a billion euros have subsequently been mentioned), the Court held that
the extinction of the property rights “very largely of persons of modest
means …in the sole interests of the State’s finances would require extraordinary
circumstances” (at p. 85) which did not arise on the facts.
The Reference constitutes an important contribution to
the jurisprudence of property rights at Irish Constitutional law, but
- I am ashamed to admit - the Court’s reasoning on the restitution issues
leaves a very great deal to be desired. This is so not only in relation
to its characterisation of the in-patients' claims, but also in its treatment
both of Murphy v AG [1982] IR 241 (SC) the leading Irish case
on change of position, and of National
& Provincial Building Society v UK (no 21319/93, judgment of
23 October 1997, (1997) 25 EHRR 127).
If you want to have a look at it, the case is available
here.
I am grateful to Steve Hedley for archiving it there.
All the best,
Eoin.
Dr Eoin O’Dell
Fellow
Trinity College
Dublin 2
Ireland
voicemail: +353-1-608 1178
Law School: +353-1-608 1125
mobile: +353-87-2021120
fax: +353-1-677 0449
(All opinions are personal. No legal responsibility whatsoever is
accepted.)
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