The fluid concept of "retrospectivity" will be the focus of the Supreme Court's consideration of the Health Bill, writes David Gwynn Morgan
The reaction of many people to the word "retrospectivity" recalls the observation of Goebbels: "When I hear the word 'culture', I reach for my pistol." But, in fact, retrospectivity is a many-layered subject.
Let us consider initially the most basic example of retrospectivity. This is something which everyone would agree is unfair and, indeed, is expressly barred in the Constitution, namely where an act is made an infringement of the law although it was not so at the time it occurred.
Take a straightforward example: if Ireland's legislators were to declare the country a Muslim theocracy, they might make the gargle illegal. But they would hardly criminalise the activity of having a drink on an evening before the law came into force. To do so would be unfair, because it would undermine the basis of a law on which people had been relying.
A more difficult example concerns the change made to the Irish Constitution in 1996, when the ban on divorce was removed. I was surprised not to hear the argument made that if the ban were to be dropped, then it should only apply to persons who had got married after 1996, since those who married before this date did so on the understanding that "till death us do part" meant what it said.
Similar arguments might be made in other areas. For example, company law reform ought to apply only to companies established after the change of law; new speed limits only to catch cars purchased after the change; or new tenant protection laws to apply only to leases made after the law came into force.
Broadly, the argument the other way is that, with a long-lived institution like marriage, one cannot be protected against all the changes waiting in the future, legal or otherwise. In addition, it complicates the legal system to have several different company laws, depending on when a company was created.
What then of the challenge to the Health Bill? Firstly, one ought to keep the merits of the new Bill distinct from its retrospective operation. One may think that the aged, who lived most of their life when times were hard, are entitled to a bit of coddling in their old age. Or one may think that since, unfortunately, people in nursing homes are seldom in a good state to enjoy the spending of money, it is likely that any additional funds would end up with their families. And in that case one might think that the public money at issue would be better spent on national schools or in honouring the promise to pay 0.7 per cent of GNP to the developing world. But these are political choices on which the Constitution does not dictate one course rather than another.
So the arguments before the Supreme Court will focus on the fact that, until this Bill becomes law, several thousand people would have a right to claim back the part of their pension which had been unlawfully withheld by the health boards to pay for what should have been a free service. The Bill purports (nice legal word) to remove their right to take this legal action, assuming that they have not actually initiated proceedings before the measure becomes law: people who have actually taken action are excluded from the sweep of the measure in order to avoid legislative interference with the judicial function.
The main legal basis for the attack on the Health Bill is likely to be that it is an attack on the right to take action, which is, broadly speaking, a property right. This gets round the fact that, although there is no precise ban on retrospectivity in the present context, it may be possible to achieve the same result by casting the new law as an attack on property rights which is unjust by virtue of its retrospectivity.
There is no Irish authority exactly in point, so that no one can be certain as to the outcome. All that can be said is that the Supreme Court has recently shown - in cases like the Planning Act reference requiring builders to subsidise social housing, and those challenging the new tax licence regime - less fondness for the property right than earlier courts. Secondly, the interplay between the Constitution and the European Convention on Human Rights is relevant. For the European Court of Human Rights has considered cases, in the welfare-fiscal area, involving retrospectivity and has allowed legislatures a broad measure of discretion.
Broadly, this has been because the European court has asked the awkward rhetorical question in regard to reliance: "Did the litigant shift their position in reliance on a law which was then changed?" In particular, in the present case, one might ask: did some old person go into a nursing home rather than stay with their family just because they assumed that they would still be able to claim their full pension?
Here we ought to notice a significant feature of the Article 26 reference system (under which, as in this case, the President refers a Bill to the Supreme Court), which can tell unfairly against the Bill under attack. With normal constitutional litigation, the applicant can rely only on their own concrete fact.
By contrast, in an Article 26 reference, counsel attacking the measure can conjure up any hypothesis, however unlikely, if it serves the case - for instance, that an old person could and would have stayed with their children if they had known the pension would be cut. This feature may yet carry the day against the Bill.
However, there is a line of authority which, although not exactly in point, would support the Bill. The most significant of this line is the sequel to the Married Women's Tax case. The first case had held that a married couple, just like an unmarried couple, was entitled to a double rate of tax allowances and bands. Where did this leave all those married couples who had paid tax under the law which had been held unconstitutional?
When in the sequel case they sued to recover the money paid, they failed on the basis both that they could and should have taken action earlier and that the consequences would be so great as to do damage to the State's finances.
Retrospectivity is about the scope of application of law, by reference to the time of the facts relevant to the law. As the rate of legal change increases, problems of this nature are likely to appear more frequently. Apart from the Health Bill, we have seen two others this month.
One arose from the fact that when judges change the law, they always do so retrospectively, in contrast to law made by the legislature. This is seldom acknowledged. An example concerns the Supreme Court's reversal in L last year of their own earlier decision in Fajujonu. The cases concerned citizenship for children born to immigrants and the status of children born pre-Fajujonu was left unclear.
The other example arose out of the Supreme Court's ruling on the invalidity of search warrants issued by floating district judges (as opposed to those assigned to their own jurisdiction).
Does all this go to prove that, as Scrooge more or less said: "Retrospectivity? Baa . . . Humbug."
Professor Gwynn Morgan, of UCC, is writing a book about Retrospectivity in several jurisdictions